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holding that a best-interests-only inquiry is a substantive right vested in the child
Summary of this case from Matter of WilsonOpinion
No. 75-1029
Decided April 28, 1976.
Minors — Custody — Award to nonparent — Finding of parental unfitness or unsuitability not required, when — R.C. 3109.04, construed — Civ. R. 75(P) — Requirement of finding of parental suitability — Validity.
1. In determining who shall have the care, custody, and control of a child under 18 years of age, even though the child's parents are not found to be unfit or unsuitable, the court may commit the child to a relative of the child where the court finds that custody to neither parent is in the best interest of the child. (R.C. 3109.04 construed.)
2. Insofar as Civ. R. 75(P), which requires the court to find, prior to committing a child to a relative, that both parents are unsuitable to have custody, abridges the child's statutory right under R.C. 3109.04 to be committed to a relative where commitment to a parent would be contrary to the child's best interest, such rule is invalid under the provisions of Section 5 of Article IV of the Ohio Constitution.
APPEAL from the Court of Appeals for Licking County.
The subject of this cause is a custody dispute over George Bryan Boyer, Jr., who turned eight years old in March 1976.
Prior to going on the road with a carnival in 1968, George's parents, Sandra L. Boyer, appellant herein, and George Bryan Boyer, Sr., appellee herein, left George with his paternal grandparents when he was a few months old. George has continually resided with his grandparents sinc that time.
On September 17, 1973, after his mother had made several demands for his return, the grandparents filed a petition in the Probate Court of Fairfield County to adopt George. That petition was dismissed by operation of R.C. 3107.06(B), which requires the consent of each parent who has not wilfully failed to properly support and maintain the child. The Court of Appeals affirmed that judgment on November 8, 1974. The court determined that the grandparents had voluntarily assumed the obligation to support George, that the mother was not guilty of wilful failure to support George, and that, therefore, the petition would be dismissed.
During the pendency of the adoption proceeding, the Court of Common Pleas of Licking County on July 16, 1974, granted an uncontested divorce to appellant, and reserved the matter of George's custody.
The custody hearing commenced on December 13, 1974. Appellee urged that custody be granted to the grandparents, and appellant requested that she be granted custody. Appellant testified that she was not employed, that she had not sought employment, that she was receiving aid to dependent children payments, and would support George on an increase in such payments.
Fifteen witnesses and over 200 pages of transcript provided a thorough inquiry into the life-styles and home environments of the proposed custodians.
The court issued an oral order, which reads:
"I find it in the best interest of the child * * * to award the custody to neither of the parents, but to award the custody of this child to Esther Boyer [the grandmother], with reasonable visitation to Sandra L. Boyer.
"I am not making a finding that either party is unfit to have the custody of this child, I am saying that it is for the best interest of this child to make this order."
Subsequently, the court issued findings of fact and conclusions of law, pursuant to Civ. R. 52, which found, inter alia: (1) that "neither parent [is] unfit," (2) "that the child has resided with his paternal grandparents since infancy, and they are suitable and willing to care for the grandchild," (3) "that it would be for the best interest of said child to be awarded to the paternal grandmother, Esther C. Boyer," (4) "that the child's interactions and interrelationship with the paternal grandparents has been excellent and to the child's best interest," (5) that "the child's adjustment to the paternal grandparents home and community has been excellent," and (6) that "the child's mental and physical health and the paternal grandparents mental and physical health is excellent."
The court concluded that under R.C. 3109.04, as amended September 30, 1974, an award of custody to a nonparent could be made in the absence of finding both parents unfit, and that it was in the best interest of George for custody to be awarded to his grandmother.
The Court of Appeals affirmed the judgment, and this court allowed a motion to certify the record.
Mr. Kenneth B. Schumaker, for appellant.
Messrs. Silbaugh, Reed, Lentz, Huddle Clark and Mr. Joseph T. Clark, for appellee.
The question presented is whether a court may commit a minor child to a relative even though the court finds that the parents are suitable persons or fit to take charge.
Civ. R. 75(P), in pertinent part, reads:
"If the court finds, with respect to any child under eighteen years of age, that neither parent is a suitable person to have custody, it may commit the child to any other relative of the child * * *." (Emphasis added.)
At the time the Civil Rules were promulgated, R.C. 3109.04 and Civ. R. 75(P), where pertinent, were identical.
The trial court, in committing George to the custody of his grandmother even though the child's parents were not found to be unsuitable or unfit, purported to derive authority from the present version of R.C. 3109.04, which reads:
"If the court finds, with respect to any child under eighteen years of age, that custody to neither parent is in the best interest of the child, it may commit the child to a relative of the child * * *." (Emphasis added.)
Appellant's basic argument, in an apparent allusion to the Modern Courts Amendment, Section 5(B) of Article IV of the Ohio Constitution, is that Civ. R. 75(P) controls the provisions of R.C. 3109.04. The Modern Courts Amendment reads, in part:
"The Supreme Court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."
The Amendment, along with Civ. R. 1(A), recognizes that where conflicts arise between the Civil Rules and the statutory law, the rule will control the statute on matters of procedure and the statute will control the rule on matters of substantive law. State v. Hughes (1975), 41 Ohio St.2d 208, 210; Morrison v. Steiner (1972), 32 Ohio St.2d 86, 88; Krause, Admr., v. State (1972), 31 Ohio St.2d 132, 145.
This court holds that the conflicting portions of Civ. R. 75(P) and R.C. 3109.04 deal with matters of substantive law and that the statute, therefore, must control. The object of inquiry herein is the determination of who shall have custody of George. The General Assembly has granted to children the right to be placed with the relative whose custodianship would be in the child's best interest. As my opinion in State, ex rel. Portage County Welfare Dept., v. Summers (1974), 38 Ohio St.2d 144, 152-153, says:
"Historically, it has been the province of the courts to make the final determination of the best interests of a child in custody disputes. In an early case involving a custody dispute between the father and mother of a child, Gishwiler v. Dodez (1855), 4 Ohio St. 615, 617, this court said:
"`* * * [I]t is universally agreed that neither of the parties has any rights that can be made to conflict with the welfare of the child, and that the order of the court should be made with a single reference to its best interests. The contending parties may be fairly presumed to be more solicitous to gratify their own interests and feelings, than to develop the whole truth, with a view to the main object of the inquiry; while the child, incapable of judging for itself, and wholly unrepresented in the contest, is in danger of being overlooked. Under such circumstances, it is the duty of the judge to become its protector, and not only to listen to all the evidence produced by the parties calculated to throw light upon his path of duty, but also to inform himself from all other legitimate sources, the better to qualify himself to discharge understandingly the delicate trust.'"
The Court of Common Pleas properly applied the provisions of R.C. 3109.04.
We reject appellant's second assertion that the standard for determining proper custody — the best interest of the child doctrine — is unconstitutionally vague. The doctrine itself is not only universally applied and recognized and amenable to description (see State, ex rel. Portage County Welfare Dept., v. Summers, supra [ 38 Ohio St.2d 144], at fn. 8, page 152), but also R.C. 3109.04(C) sets forth a five-factor test to be applied by the court in determining the proper custodian of the child.
Children and parents of those children, stand equal before the law. They are entitled to protection from and by the law. Appellant's basic premise, that the parents have a right to custody which transcends consideration of the child's best interest, is recognition that the child's right to a suitable custodian and parental rights, when not in harmony, are competing interests, requiring that one give way to the other.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE and P. BROWN, JJ., concur.
HERBERT, J., concurs in paragraph one of the syllabus and the judgment.