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In re D.D.

Court of Appeals of Ohio, Seventh District, Carroll

October 20, 2017

IN RE:, D.D., DOB: 06/17/2007, T.A.J., PETITIONER-APPELLEE,
v.
G.L.D., RESPONDENT-APPELLANT.

         Appeal from the Court of Common Pleas, Juvenile Division of Carroll County, Ohio Case No. 20164005

          For Petitioner-Appellee: Atty. Kathleen Allmon Stoneman

          For Respondent-Appellant: Atty. Michael J. Roth

          Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro judge

          OPINION

          ROBB, P. JUDGE

         {¶1} Appellant G.D. appeals the decision of Carroll County Common Pleas Court, Juvenile Division, finding him unsuitable and granting custody of his minor child to Appellee T.J., the child's maternal uncle. The issue in this case is whether the trial court abused its discretion in finding Appellant unsuitable. We hold the trial court did not abuse its discretion.

         Statement of the Facts and Case

         {¶2} Appellant and mother were married in March 2002. They resided in Carroll County, Ohio and had one child born in June 2007. Appellant filed for divorce in 2012. The divorce was finalized February 26, 2014. Mother was granted sole custody of the minor child and Appellant was granted supervised visits every Sunday for two hours. Why this limited visitation was ordered is not apparent from the record. The divorce decree, which is a part of the record, does not indicate the factual basis for supervised visits.

         {¶3} The supervised visits occurred at one of two places, McDonald's or the park, and were supervised by mother or Appellee. Appellant consistently exercised his right to visitation.

         {¶4} Following the divorce, the child and Appellant participated in some joint counseling sessions. These counseling sessions were to create a bond between Appellant and the child. The child also had private sessions with another therapist.

         {¶5} Mother was diagnosed with cancer either shortly before the divorce was finalized or sometime after it was finalized. Following the divorce, Mother and child lived with Appellee and Appellee helped Mother with treatments and caring for the child. Mother died January 2, 2016.

         {¶6} Following her death, Appellant and Appellee both filed petitions for custody in the Juvenile Court. 1/11/16 Appellee petition for custody; 1/11/16 Appellant petition for custody. The case proceeded to a bench trial. 10/13/16 and 11/17/16 Trial.

         {¶7} During pendency of the action, Appellant continued exercising his visitation and Appellee permitted the visitation to be unsupervised. The child continued to have private sessions with a therapist and another attempt at joint counseling with Appellant and the child occurred.

         {¶8} After two days of testimony, the trial court took the matter under advisement. The trial court found, based on the child's feeling of ill will for Appellant, Appellant was unsuitable. The trial court then determined it was in the best interest of the child for custody to be awarded to Appellee. 1/30/17 J.E. Appellant was granted visitation. The visitation was expanded; Appellant was granted visitation every other weekend, holidays were alternated, and Appellant was granted two weeks of summer visitation. 2/7/17 J.E.

         {¶9} Appellant timely appeals the award of custody of the child to Appellee, a non-parent.

         Assignment of Error

         "The trial court violated Appellant's Fourteenth Amendment Right to care and custody of his child when it failed to correctly apply the Perales unsuitability test in divesting father of custody and granting custody to a non-relative."

         {¶10} The juvenile court has exclusive original jurisdiction to determine the custody of a child who is not a ward of another Ohio court. R.C. 2151.23(A)(2). See also R.C. 2151.23(F)(1) (the juvenile court shall exercise its jurisdiction in child custody matters in accordance with R.C. 3109.04). Although a domestic relations court has continuing jurisdiction over child custody and child support resulting from a divorce, a child who is the beneficiary of those orders is not a ward of that court; the two courts have concurrent jurisdiction. Freed v. Freed, 3d Dist. No. 5-15-15, 2015-Ohio-4527, ¶ 6. Therefore, although custody and support were previously determined by the domestic relations court, the juvenile court had jurisdiction to determine the child's custody in the matter at hand.

         {¶11} A trial court has broad discretion in determining custody matters. Reynolds v. Goll, 75 Ohio St.3d 121, 124, 661 N.E.2d 1008 (1996). Thus, the court's unsuitability and custody determination is reviewed for an abuse of discretion. Polhamus v. Robinson, 3d Dist. No. 8-16-11, 2017-Ohio-39, ¶ 15-17. When applying an abuse of discretion standard, we are not free to merely substitute our judgment for that of the trial court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). A deferential review in a child custody case is appropriate because much may be evident in the parties' demeanor and attitude that does not translate well to the record. Id. at 419.

         {¶12} The custody of a child is a "fundamental liberty interest" of a parent. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The right of a parent to rear his/her own child presents itself in custody proceedings between a parent and a non-parent, as opposed to a custody proceeding between two parents. In re Perales, 52 Ohio St.2d 89, 96, 369 N.E.2d 1047 (1977).

         {¶13} The suitability test has a higher standard than the best interest test. We have previously explained:

Under the best interest test, the court looks for the best situation available to the child and places the child in that situation. The suitability test, on the other hand, requires a detriment to the child be shown before the court takes him/her away from an otherwise suitable parent. Under the suitability test, "[s]imply because one situation or environment is the 'better' situation does not mean the other is detrimental or harmful to the child."

(Internal citations omitted). In re DeLucia v. West, 7th Dist. No. 05-MA-5, 2005-Ohio-6933, ¶ 16.

         {¶14} Under the suitability test, a parent is unsuitable if the parent abandoned the child, the parent contractually relinquished custody of the child, the parent has become totally incapable of supporting or caring for the child, or an award of custody to the parent would be detrimental to the child. Perales at ...


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