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Juvenile Court may grant temporary child visitation rights to a nonparent during litigation of custody suit
By Dennis Whalen
September 26, 2012 

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The Supreme Court of Ohio ruled today that while a child custody proceeding is pending before a juvenile court, the court may issue an order granting temporary visitation with the child by a nonparent under Ohio Juvenile Rule 13(B)(1), where the court finds that the visitation is in the best interest of the child. 

The court’s 5-2 decision, authored by Justice Evelyn Lundberg Stratton, reversed a ruling in which the Tenth District Court of Appeals held that the Franklin County Juvenile Court lacked the authority to order Julie Smith of Columbus to allow scheduled visitation between Smith’s daughter and Julie Rowell, Smith’s former partner, during the pendency of a lawsuit filed by Rowell seeking permanent shared custody of the child. 

Smith became pregnant by artificial insemination and gave birth to a daughter in 2003 while she and Rowell lived together. The relationship between Smith and Rowell ended in 2008.  In October 2008, Rowell filed suit in Franklin County Juvenile Court seeking an order granting her permanent shared custody of the child and temporary visitation rights while the custody action was pending. Smith opposed both the custody action and the motion for temporary visitation. The court identified Smith as the child’s legal custodian and residential parent, and granted Rowell scheduled temporary visitation with the child while the custody action remained pending. Smith refused to comply with the visitation order, and was cited for contempt of court. 

After more than a year of subsequent litigation in which Smith continued to refuse Rowell visitation with the child, the Tenth District reversed the trial court’s finding of contempt and vacated the sanction imposed against Smith. A 2-1 majority of the appellate panel held that the trial court’s contempt findings were unenforceable because that court did not have authority to award temporary visitation rights with her daughter to a nonparent while the custody litigation remained pending. 

Rowell sought and was granted Supreme Court review of the Tenth District’s ruling. 

Writing for the majority in today’s  decision, Justice Stratton noted the Rowell brought her suit for shared custody under R.C. 2151.23(A)(2), which grants juvenile courts jurisdiction “to determine the custody of any child not a ward of another court or this state,” a category that she said includes “custodial claims brought by persons considered nonparents at law.” 

Justice Stratton wrote: “The juvenile court ... issued temporary orders to permit visitation between Rowell and the minor child ... citing as authority Juv.R. 13(B)(1) and Loc.R. 5(D) of the Court of Common Pleas of Franklin County, Juvenile Division.  Under Juv.R. 13(B)(1), 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.’” 

“On appeal ... Smith argued that a court must have statutory authority to act and that R.C. 2151.23(A)(2) confers jurisdiction to determine only custody but does not authorize a court to grant visitation rights. ... (A)ccording to Smith, the juvenile court lacked authority to issue the underlying order for visitation. The court of appeals agreed and reversed the order of contempt.” 

In rejecting the Tenth District’s holding, Justice Stratton wrote that the court found the reasoning of a 2010 decision of the Eighth District Court of Appeals, In re LaPiana, more persuasive. That case also involved a complaint to seek shared custody under R.C. 2151.23 between a parent and a nonparent. In LaPiana, Justice Stratton wrote, “(t)he court reasoned that ... [the nonparent] had a legal right to seek shared custody under R.C. 2151.23 and that in such cases, ... the court must act in the best interest of the child.”  

“Here, the juvenile court relied on Juv.R. 13(B)(1) in granting Rowell visitation rights with the minor who was the subject of the pending R.C. 2151.23 custody case. 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.” 

Based on its conclusion that the juvenile rules permitted the Franklin County Juvenile Court to grant Rowell’s request for a temporary visitation order, and therefore the juvenile court could also find Smith in contempt for disobeying its visitation order, the court remanded the case to the trial court for execution of its contempt findings against Smith. 

Justice Stratton’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger and Yvette McGee Brown. 

Justice McGee Brown also entered a concurring opinion stating that in her view, Smith should be summoned to appear before the Supreme Court to show cause as to why she should not be found in contempt of this court for failing to comply with its order reinstating the trial court’s visitation order, which was issued by the justices at the time they agreed to hear Rowell’s appeal. Justice McGee Brown wrote: “Smith has effectively denied Rowell contact with the minor child for three years.  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 the resolution of Rowell’s appeal before this court was ignored.” 

“Smith has blatantly disregarded the trial court’s authority, the appellate court’s authority, and this court’s authority, and has shown immense disrespect toward the judicial proceedings.  Her disdain for the authority of Ohio’s courts is particularly egregious since Smith herself is an attorney.  ... 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. ... The integrity of the courts and the enforcement of court orders are critical to our system of justice.  For these reasons, I would issue a show-cause order compelling Smith to explain why she should not be held in contempt of this court’s order.” 

Justice Robert R. Cupp entered a dissenting opinion, joined by Justice Terrence O’Donnell, in which he noted that since this court agreed to hear Rowell’s appeal, the trial court has entered a judgment granting Rowell’s petition for permanent shared custody of the child. Because no party has appealed that judgment, and there are no current allegations that Smith has violated her obligations under the judgment to share custody of the child with Rowell, Justice Cupp wrote that in his view the controversy underlying Rowell’s appeal no longer exists, and the case should therefore be dismissed as having been improvidently accepted. 

Read the article at Court News Ohio