Opinion
No. 78-637
Decided May 2, 1979.
Habeas corpus — Writ denied, when — Abandoned child — Natural parent seeking custody — Prior judgment not res judicata, when — Differing standards of proof.
APPEAL from the Court of Appeals for Clark County.
Catherine (Young) Noble, now Catherine Idle, appellant herein, and Leo E. Young III are the natural parents of Timothy Lee Young, born July 29, 1968. Appellant and Young received a final divorce decree from the Court of Common Pleas of Clark County on December 1, 1969. The decree awarded custody of Timothy to appellant.
On December 12, 1969, appellant married Gaylord Noble, appellee herein and Young's first cousin. They separated in April 1970. Appellant concedes that about two months later she "released" custody of Timothy to appellee claiming that she was unable to provide for him. Timothy has lived with appellee since. During that time, appellee supported him entirely while appellant visited him only infrequently until her marriage to Arlen Idle in February 1977. Since then she has visited Timothy regularly.
Appellant's attorney, by letter dated June 29, 1977, formally notified appellee that appellant wanted custody of Timothy. The letter indicated appellant's intention to file a habeas corpus action if necessary to regain possession of the child.
On August 30, 1977, a complaint was filed with the Juvenile Division of the Court of Common Pleas by Thomas E. Evans, appellee's uncle, alleging that Timothy appears to be a neglected child in that he had been abandoned by his parents, guardian or custodian. On March 15, 1978, that court dismissed the charge of neglect finding that Timothy had not been willfully abandoned by his mother.
On September 7, 1977, appellant filed a complaint in the Court of Appeals for Clark County asking that a writ of habeas corpus issue directing appellee to return custody of Timothy. In an affidavit filed with the complaint, appellant alleged that she was awarded custody of Timothy by the December 1, 1969, divorce decree between herself and Young, and that appellee is refusing to give up custody of the child. The Court of Appeals denied the writ on March 28, 1978, concluding that appellant "renounced her right to custody of Timothy and transferred his care and custody to Noble" and that "the best interests of the child will be served by allowing him to remain in Noble's custody."
The cause is now before this court upon an appeal as of right.
Messrs. Logan Davis and Mr. Ronald G. Logan, for appellant.
Messrs. Young, Pryor, Lynn, Falke Jerardi and Mr. Gary W. Gottschlich, for appellee.
Appellant contends that since appellee is not the child's natural parent the Court of Appeals erred in denying the writ of habeas corpus without finding by a preponderance of the evidence that appellant is an unfit or unsuitable parent.
In Clark v. Bayer (1877), 32 Ohio St. 299, this court recognized that parents who are "suitable" persons have a paramount right to the custody of their minor children. One hundred years later, in In re Perales (1977), 52 Ohio St.2d 89, 98, we found that "based on the concern displayed in the Clark opinion for balancing the interests of both parent and child, that parents may be denied custody only if a preponderance of the evidence indicates abandonment, contractual relinquishment of custody, total inability to provide care or support, or that the parent is otherwise unsuitable — that is, that an award of custody would be detrimental to the child."
Here, the court below found that appellant abandoned, i.e., "renounced" custody of the child. Thus, she forfeited her paramount right to the child. The court must then weigh the best interests of the child in determining whether to grant the writ returning the child to her. In re Tilton (1954), 161 Ohio St. 571. Here, the Court of Appeals found that the best interests of the child would be served by allowing him to remain in appellee's custody.
Appellant contends further that the Court of Appeals may not deny the writ since the Juvenile Court found in the neglect action that she did not willfully abandon Timothy. Although the judgment in that action was issued nearly two weeks prior to that of the Court of Appeals, it is not res judicata herein since the standard of proof in the neglect action is by clear and convincing evidence, Juv. R. 29(E)(4), whereas in this action it is merely by a preponderance, Perales, supra. See United States v. National Assn. of Real Estate Boards (1950), 339 U.S. 485.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN and SWEENEY, JJ., concur.
P. BROWN and LOCHER, JJ., concur in the judgment.
HOLMES, J., not participating.