Court of Appeals of Ohio, Seventh District, Carroll
from the Court of Common Pleas, Juvenile Division of Carroll
County, Ohio Case No. 20164005
Petitioner-Appellee: Atty. Kathleen Allmon Stoneman
Respondent-Appellant: Atty. Michael J. Roth
Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
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
of the Facts and Case
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.
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
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.
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.
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
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.
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.
Appellant timely appeals the award of custody of the child to
Appellee, a non-parent.
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
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.
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.
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
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.
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 ...