Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE A.B.M. A Minor Child [Appeal by T.M., Father]
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case No. CU16117933
Stafford Law Co., L.P A., Joseph G. Stafford, and Nicole A
Cruz, for appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, Daniel A. Starett and Marilyn Weinberg, Assistant
County Prosecutors; and Eric J. Cherry, for appellee.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
1} Appellant T.M., the established father
("Father") of minor child A.B.M., appeals the
custody determination by the Cuyahoga County Court of Common
Pleas, Juvenile Division. We affirm the judgment of the trial
Background and Facts
2} A.B.M. was born to appellee M.R., a single mother
("Mother"), shortly after Mother's high school
graduation. Father was also a recent high school graduate. On
March 11, 2014, Father was established as the biological
father by the Cuyahoga County Department of Job and Family
Services ("CCDJFS"). The parties never married but
lived together sporadically.
3} After several moves from Florida to Ohio, Father
decided to remain in Ohio. Mother decided to remain in
Florida. On December 12, 2016, Father filed an application to
determine custody of A.B.M. and a motion to restrain Mother
from returning to Florida after Mother's visit to Ohio.
Father alleged that Mother: (1) was unable to provide stable
living conditions, (2) had not maintained stable employment
for more than three months in the past two years, and (3)
A.B.M., who was four years of age at the time, had not been
in a structured school environment.
The trial court granted the ex parte motion filed by Father
on March 17, 2017, to restrain Mother from returning to
Florida where she and A.B.M. were residing. An interim
parenting order was issued governing visitation.
5} On March 29, 2019, the trial court denied
Mother's motion to dismiss the complaint for lack of
subject matter jurisdiction that claimed Ohio lacked
jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act ("UCCJEA") because Mother was a
Florida resident. The trial court determined that Mother
failed to demonstrate by clear and convincing, credible
evidence that she has established or otherwise maintained
residency in another [s]tate, and thereby establishing
another [s]tate as the home state of the child. Both parents
demonstrated a rather transient lifestyle with the child
prior to the filing of the application.
entry No. 0911060800 (Mar. 29, 2019).
6} The trial was held on April 25, 2018. Father,
Mother, the maternal grandmother ("Grandmother")
and the GAL testified.
7} Father stated that he, Mother, and AB.M. resided
together before he moved in with a friend in Florida in
January 2015, and secured employment. Mother and A.B.M.
joined him shortly afterward. Father testified that he paid
all of the expenses and assisted with AB.M.'s care.
Father returned to Ohio in August or September 2015, without
Mother and A.B.M., but gave Mother $400 per month to support
A.B.M. when he obtained employment.
8} Father visited A.B.M. in Florida during the fall
2015 and during Mother's visit to Ohio to see her mother
in March 2016. A.B.M. stayed with Father and his new
fiancé in Cleveland for about two months later that
year with Mother's consent.
9} Father testified that Mother was pregnant with
the child of her fiancé whom she lived with in Florida
and that Father paid for Mother and A.B.M. to come to Ohio in
December 2016. Mother stayed alternately with Father's
sister and her sister. Father filed the custody application
and the trial court ordered interim visitation. Father
requested equal parenting time and designation as the
residential parent if Mother relocated out-of-state.
10} Father admitted that A.B.M. was four years old
at the time the case was initiated and was not required to
attend school. Mother selected AB.M.'s current school
where she is learning to speak Mandarin and Spanish and
A.B.M. enjoys attending school with her cousins. Father
states that he assists A.B.M. with homework during his
visitation time and maintains contact with the school
11} Father testified that A.B.M. said that Mother
told her not to discuss Mother's life and activities with
Father. He claimed that Mother did not obtain stable housing
until April 2017, though he admitted that she was in Florida
and subsequently stayed with relatives until she secured a
place to live. Father confirmed that he had also moved and
purchased his home in 2017 where he lives with his
12} Exhibits were also introduced during
Father's testimony indicating that, at the time the
complaint was filed, he had contact with A.B.M., that actions
were in process for AB.M.'s school enrollment, and that
he stopped paying the $400 per month that he indicated he had
been paying to Mother. The 2015 W-2 forms did not support
Father's claim that Mother and Father resided together in
13} Mother testified that she and her family moved
to Ohio from Florida during her sophomore year and that she
has extended family in Florida. During the pregnancy and
after the birth, Mother lived primarily with Grandmother but
sometimes stayed with Father who frequently "kick[ed]
[Mother] out" of the house. (Tr. 100.) Mother said that
she always planned to return to Florida and moved in with her
brother in February 2015. Father resided about 30 minutes
away, they were not dating, and they did not live together at
14} Mother drove A.B.M. to visit Father but Father
did not ask to see A.B.M. or pick her up. Father's move
to Florida provided an opportunity for her to return to her
family in Florida. In May 2015, Mother secured employment
and, in June, an apartment. Father had returned to Ohio by
that time but returned to Florida to live with Mother on the
condition that he obtain employment.
15} Father worked for about a month and the parties
ended the living arrangement after an argument that involved
police presence. Father returned to Ohio and Mother moved
back in with family in Florida. Father talked with A.B.M. by
telephone, video chat, and visited A.B.M. in Florida. Mother
ended her employment because of the one-hour commute and said
that she supported herself with savings, a tax refund, and
subsequent employment that allowed her to meet AB.M.'s
16} Mother and her current fiancé began
living together about one month after meeting and they
planned to marry in January 2019. The fiancé is the
father of the second child and has a good relationship with
A.B.M. Mother returned to Ohio to help Grandmother move back
to Florida but remained due to the custody case and began
taking classes at a local college.
17} Mother testified that the only violation of the
current parenting order occurred on July 4, 2017. A.B.M. was
usually happy to see Father but was cranky and did not want
to go with Father. Father began yelling and AB.M. was crying
and did not want to leave. Mother denied attempting to hinder
the father-child relationship.
18} Mother also testified that, in December 2016,
when Mother was residing at Father's sister's house,
Father attempted to have Mother perform a sexual act. Mother
did not report it. Mother continued to allow visitation
pursuant to the parenting order but had other family members
take A.B.M. to meet Father. Also, in December 2016, A.B.M.
told Mother that she observed a gun laying on a kitchen chair
at the Father's home, but that Father quickly removed it.
19} Mother testified that, after the gun incident,
she allowed A.B.M. to talk with Father by telephone but she
was concerned for AB.M.'s safety as well as for her own.
Since the interim parenting order was entered, A.B.M. visits
Father and is sometimes excited and other times reluctant to
go. Mother also said that A.B.M. is very close to her younger
During cross-examination, Mother explained the reasons for
changing residences and employment relocations and stressed
that she always made sure that AB.M.'s needs were met.
Though Mother's family and fiancé are in Florida
and Grandmother was also moving to Florida, Mother declared
that she would remain in Ohio if Father was appointed as the
residential parent because she did not want to be away from
A.B.M. Mother testified that her current employer, Cleveland
Clinic, would allow her to continue to work for them in a
home-based position if she relocates to Florida. If forced to
remain in Ohio, her relationship with her fiancé
probably would end because he has a special needs child in
Florida and is unable to relocate.
21} Grandmother testified that Mother and Father had
a sporadic and somewhat contentious relationship that Mother
attributed to their youth and the stress of parenting an
infant. Grandmother was diagnosed with fibromyalgia and was
advised by her physician to move to a warmer climate. Mother
returned to Cleveland to assist Grandmother's move to
22} After the order was issued preventing Mother
from returning to Florida, Mother secured an apartment in the
complex where Grandmother resides and Grandmother cares for
both children. Grandmother advised that A.B.M. and her
younger sister are very close and that separating them would
23} The GAL was the final witness. The GAL issued a
report on November 29, 2017, that did not contain a parenting
recommendation. On December 7, 2017, only eight days later,
she issued a longer report that recommended naming the Father
as the residential parent for school purposes and for a
split-week parenting plan with exchanges at the school. The
GAL did not file an updated or supplemental report prior to
the April 2018 trial.
The GAL testified,
I've done a number of visits with the child. Both homes
are appropriate. The child is very comfortable with both
parents, very affectionate. She clearly loves her mom and her
She gets along well with father's fiancé. She
clearly adores her little sister.
She I think wants to spend time with everybody, to love
everybody, like any other six-year-old.
I think the big issue in this case is how we handle the
relocation, which is very, very tricky.
I am hesitant to recommend that and I think that's clear
in my report, based on mom's difficulty dealing with dad
throughout this case.
I will note that it has improved significantly since I was
appointed. When this case began, mother * * * did not want
any interaction with [Father]. (Tr. 164-165.)
25} The GAL opined that both parents are competent
to care for A.B.M. However, "[m]y concerns are their
ability to work together to facilitate positive relationships
for [A.B.M.] with everyone." (Tr. 168.) In light of the
strained communication between the parents, the GAL suggested
that visitation exchanges take place through the school to
avoid interaction between the parents and that the parties
continue to communicate through the Our Family Wizard
database that facilitates shared parenting communications.
26} The GAL concluded that spending time with both
parents is in AB.M.'s best interest, but A.B.M. should
not hear negative things from either parent about the other
parent. The GAL suggested that A.B.M. had been coached by
Mother about the gun incident because the child recalled the
situation even though she was only five. The GAL did not
think that seeing a gun sitting on a kitchen chair at her
Father's home would be ...