Supreme Court Custody Case Update: Visitation by a Non-Parent
The Law Regarding Non-Parent Visitation
One of the most contentious issues that may arise in custody litigation is whether a non-parent has the right to exercise visitation with a particular child. Generally speaking, parents are imbued with an absolute right to determine who their child shall visit with under the Due Process Clause of the United States Constitution. This right was most clearly articulated in the United States Supreme Court’s seminal decision of Troxel v. Granville (2000), wherein the Court stated “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”
However, notwithstanding some of Troxel’s broad and sweeping language regarding parental control over matters of visitation, there have been numerous situations in which Ohio Courts have granted non-parents visitation with children over the objection of the parents. The most common scenario is where the parents and grandparents have a falling-out, leading one or both of the parents to cut-off all contact between the grandparents and their grandchildren. In fact, the Troxel decision was a determination of the constitutionality of Washington’s non-parent visitation statute as applied to grandparents.
Like the State of Washington, Ohio also has specific statutory provisions that permit grandparents (or other family members) to petition a court of competent jurisdiction for an order awarding them visitation with children if the court determines it would be in their best interest. See, for example, Ohio Revised Code Sections 3109.051 and 3109.11. These statutes have withstood constitutional scrutiny. Harold v. Collier, 107 Ohio St. 3d 44 (2005) (“The State has a compelling interest in protecting a child’s best interest, and Ohio’s non-parental visitation statutes are narrowly tailored to serve that compelling interest. They are not, therefore, unconstitutional under Troxel v. Granville”).
More recently, however, the issue of non-parent visitation has increasingly been litigated in the same-sex relationship context. The typical situation involves a lesbian couple that shares equally in child-rearing responsibilities, sometimes for several years, for one of the women’s biological child(ren). When the same-sex relationship is terminated, the biological mother then restricts contact between the child and her former partner, prompting the former partner to seek judicial redress. This was precisely the situation in the Supreme Court of Ohio’s recent decision in Rowell v. Smith, 133 Ohio St. 3d 288 (2012).
The Facts of Rowell v. Smith
In this case Smith was the biological mother of the child at issue, having been artificially inseminated in 2003. Rowell and Smith were same-sex partners and while they were together each of them played a role in raising Smith’s biological child. When the two of them ended their long-term relationship several years later, Smith decided to restrict Rowell’s access to her child. Rowell then filed a complaint in the Juvenile Court seeking “shared custody,” pursuant to Ohio Revised Code Section 2151.23(A), arguing that it was in the best interest of the minor child.
The Court that was hearing the case entered an interim order granting Rowell temporary visitation while the case was pending. Smith continued to ignore the court’s order and was found in contempt of court. Smith appealed the trial court’s decision to the Court of Appeals, who reversed the decision after finding that the trial court was without authority to order interim temporary visitation rights for Rowell. The Supreme Court reversed the Court of Appeals and remanded the case to the trial court for further proceedings. So, does the juvenile court have unfettered authority to order visitation to a non-parent when it finds the visitation to be in the child’s best interest? Not necessarily; the Rowell decision is more nuanced than that and the posture of the case dictated the ruling.
The Findings in Rowell v. Smith
The Rowell court was faced with the narrow issue as to whether the trial court had the authority to order interim visitation during the pendency of the larger custody case. There was no question that Rowell had the right to petition the court for shared custody pursuant to Ohio Revised Code 2151.23(A)(2), which broadly states in relevant part: “The juvenile court has exclusive original jurisdiction under the Revised Code … to determine the custody of any child not a ward of another court of this state.” The sole question before the Court in Rowell was whether as part of exercising that broad jurisdiction regarding custody, the trial court could order interim visitation rights as well.
Smith argued the trial court acted without proper authority when it ordered interim visitation for Rowell, citing the Supreme Court’s 2002 decision in In Re Gibson, 61 Ohio St. 3d 168. The Gibson case involved a grandparent that had filed for visitation with his grandchild in the juvenile court. The Supreme Court ruled that O.R.C. 2151.23(A)(2) did not authorize the trial court to award visitation; that statute only authorized a trial court to determine issues of custody, noting that by “asking for visitation only [the grandfather] was not asking the juvenile court to determine or award him ‘custody.’” And although somewhat related, custody and visitation are separate and distinct legal concepts requiring specific statutory authority. In short, O.R.C. 2151(A)(2) allows a non-parent to petition the juvenile court for custody, but not for visitation of a child. Because the Rowell matter was a custody case, all the trial court did was exercise its express authority to order interim visitation during the pendency of the custody case as it deemed appropriate under the circumstances. Therefore, trial court in Rowell did not run afoul of the ruling in Gibson.
Summary of the Implications of Rowell
So, what does Rowell actually stand for? It is probably best to initially point out what it does not stand for. The Supreme Court of Ohio did not expressly declare that a non-parent, whether a grandparent or same-sex partner, can utilize O.R.C. 2151.23(A) to obtain an order of visitation. In fact, the Court did not overrule its decision in Gibson. The Court merely stated that a juvenile court has the authority to order interim visitation while the larger custody case is pending. The lesson to be learned here is that if you are a non-parent and intend to file in the Juvenile Court seeking visitation, you had better file for custody of the child as well, or utilize some statutory provision other than O.R.C. 2151.23(A).
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Charles W. Morrison
Charles "Bill" Morrison is Of Counsel with Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues and the managing editor of the Ohio Criminal Defense Law Blog. He is also a member of the Association of Ohio Criminal Defense Lawyers.