Ohio Supreme Court Upholds Temporary Visitation Order in Co-Parent Custody Litigation

The Ohio Supreme Court ruled by a 5-2 vote on September 26 that the juvenile court had authority to issue a temporary visitation order to a mother's former same-sex partner while they were embroiled in a custody dispute over the child they had been raising together.  Reversing a ruling by the Ohio court of appeals, the court reinstated findings by the juvenile court that the mother was in contempt of court for refusing to comply with the temporary visitation orders and allow contact between her child and her former partner.

According to the opinion for the court by Justice Evelyn Lundberg Stratton, Julie Ann Smith gave birth to her daughter conceived through donor insemination while she was "involved in a relationship" with Julie Rose Rowell.  When their relationship ended several years later, Rowell filed a petition in the juvenile court in Franklin County, asking for an order for shared custody and requesting a temporary visitation order while the case was pending.  Smith opposed the request for visitation, but the magistrate deciding pretrial motions granted the order.  Smith moved to set the order aside, but the trial judge issued a new visitation order, while designating Smith as the child's legal custodian. 

Smith refused to comply with the visitation order, and Rowell filed a motion for contempt.  Smith argued in opposition that the juvenile court did not have jurisdiction to award visitation rights, and thus also lacked power to enforce its prior order through a contempt ruling.  Rejecting these arguments, the juvenile court found Smith in contempt, relying on its jurisdiction over the custody petition as a source of authority.  Ohio law specifically allows actions for nonparent custody. 

Smith brought the case to the court of appeals, which reversed the contempt ruling, but subsequently the magistrate issued another order designating Smith as temporary custodian and granting Rowell temporary visitation.  Yet again, Smith refused to allow Rowell any time with the child, and the magistrate granted Rowell's new contempt motion, sentencing Smith to three days in jail (suspended if Rowell "purged" herself of contempt by complying with the visitation order), and requiring Rowell to pay $2500 for attorney fees and costs incurred by Rowell in prosecuting the contempt motion.  The juvenile court approved the magistrate's decision, issuing a decision and judgment entry of contempt, and Smith appealed to the Franklin County Court of Appeals.

The court of appeals stayed the jail sentence pending appeal, but announced that Smith still had to comply with the visitation order.  When she refused, the court released the stay and directed Rowell to apply to the trial court for "enforcement orders."  (Lots of bureaucracy here.)  After the juvenile court granted Rowell's motion to enforce the contempt order, Smith appealed again to the Franklin County Court of Appeals.

By a divided vote, the Court of Appeals ruled that the juvenile court lacked authority to order visitation, that the temporary visitation order was invalid, and Smith could not be held in contempt.  This time Rowell appealed, to the Ohio Supreme Court.

Justice Lundberg Stratton pointed out that the jurisdiction of the juvenile court is statutory.  The court is not a common law court with general jurisdiction, but can act only based on statutory authorization.  In this case, Rowell's petition was premised on a statute that grants the juvenile courts exclusive original jurisdiction "to determine the custody of any child not a ward of another court of this state," in R.C. 2151.23(A)(2).  In a prior case, In re Bonfield, 97 Ohio St. 3d 387 (2002), the Supreme Court stated that this included "custodial claims brought by persons considered nonparents at law."  Thus, the juvenile court had jurisdiction over Rowell's shared custody petition.

Under the rules of the juvenile court, a "judge or magistrate may issue temporary orders with respect to the relations and conduct of other persons toward a child who is the subject of the complaint as the child's interest and welfare may require."  Thus, if the trial court found that it was in the interest of the child to have continuing contact with Rowell, who had shared in raising the child until her relationship with Smith had ended, the court had authority to order temporary visitation while the custody case was ongoing. 

Agreeing with the dissenting judge in the court of appeals, the court said, "Construing the juvenile rules liberally, as we must, we hold that a juvenile court may issue temporary visitation orders in cases within its jurisdiction under R.C. 2151.23 if it is in the child's best interest."

The court rejected Smith's argument that this violated her constitutional rights.  Smith relied on the U.S. Supreme Court's decision, Troxel v. Granville, 530 U.S. 57 (2000), which found that a state law that would authorize a court to order visitation for grandparents over the objection of a child's parent violated the parent's liberty interest to control who has contact with her child.  "According to Smith," wrote Justice Lundberg Stratton, "a court may not grant visitation rights to a nonparent under R.C. 2151.23(A)(2), even temporarily, until the issue of custody is determined; otherwise, the order is an infringement on the parent's fundamental rights."

The court had previously discussed the impact of Troxel in the case of Harrold v. Collier, 107 Ohio St.3d 44 (2005), acknowledging that under Troxel there is "a presumption that fit parents act in the best interest of their children."  However, said the court, it was not an irrebuttable presumption, and "nothing in Troxel suggests that a parent's wishes should be placed before a child's best interest." Thus, the juvenile court in this case, having jurisdiction over the custody petition, "had discretion" under the juvenile court rules "to issue a temporary visitation order, so long as it was in the child's best interest."

The court rejected Smith's argument that this ruling would give juvenile courts "summary power and unfettered discretion to grant visitation to a nonrelative."  "We disagree," wrote Lundberg Stratton. "The court's actions must be in the child's best interest.  Moreover, Smith's interpretation of the law is illogical.  Under her interpretation, the General Assembly granted authority for juvenile courts to determine the custody of a child but cannot determine whether a party to the custody action can visit with the child while the action is pending."  The court pointed out that Smith's contention that she had never intended to share custody with Rowell raised a fact question to be determined in the custody case, and was not relevant for purposes of this jurisdictional ruling.

In a concurring opinion, Justice Yvette McGee Brown stated that she would have taken things further and required Smith to "appear and show cause why she should not be held in contempt for her blatant refusal to comply with this court's July 7, 2011, order."  It seems that not only had Smith refused to comply with the orders of the trial court, she had also refused to comply with an order by the Supreme Court to allow visitation while Rowell appealed the court of appeals' decision! 

"Smith has effectively denied Rowell contact with the minor child for three years," Justice McGee Brown pointed out.  "She has not followed any of the visitation orders that have been issued and has appealed every contempt sanction, resulting in delay and continued denial of visitation.  Even this court's July 7, 2011 order reinstating temporary visitation orders pending Rowell's appeal before this court was ignored." 

"It is our duty to ensure that the whims of the individual ultimately bend to the law, rather than allowing the law to bend to the whims of the individual," wrote the judge, who then recounted in detail all of Smith's contemptuous acts throughout the litigation.  "The fact that Smith has so far been able to brazenly and continuously defy court orders with impunity sends a dangerous message to Ohio's domestic-relations litigants," she continued.  "Beyond harming the integrity of the courts, Smith's actions have also harmed her child."  Another justice joined McGee Brown in this concurrence.

Justice Robert Cupp dissented, in an opinion joined by Justice Terrence O'Donnell. These judges would have dismissed the appeal as moot, since it seems that "the behavior underlying the contempt finding and enforcement action has ceased" as a result of a final resolution of the case by the trial court while this appeal was pending.  "In February 2012," wrote Cupp, "the trial court issued a judgment entry in which it awarded shared custody of the child to appellant, Julie Rowell, and Smith, along with a specific companionship schedule and other related terms.  As of the time of oral argument, no appeal had been taken from this order and there are no allegations that Smith is presently violating the terms of the custody order. From all appearances, the custody arrangements for this child have stabilized."  Consequently, Justices Cupp and O'Donnell opposed upholding the trial court's contempt rulings.

Reporting on the court's ruling on September 27, the Columbus Dispatch quoted Rowell's attorney, LeeAnn Massucci, hailing the decision.  "This sends a far-reaching message to all of those in litigation who are choosing not to abide by court visitation orders.  The Supreme Court is saying it loud and clear… For all same-gender couples, the juvenile court has jurisdiction to allow visitation during custody proceedings."

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.