Parent v. Nonparent Child Custody and Unsuitability in Ohio

Unsuitability Resurrected: The Unconstitutionality of §3109.04(D)(2)

By Laurie Gibson
Law Office of Laurie B. Gibson

Jan 15, 2016

In 1877, the Ohio Supreme Court held in Clark v. Bayer that parents who are suitable have a paramount right to the custody of their children unless they forfeit that right or become totally unable to care for their children.[1] This requirement of “inability” or “parental unsuitability” (i.e. that a parent must be deemed unsuitable before losing custody to a nonparent) became Ohio’s standard for custody cases arising in both domestic relations and juvenile courts and was codified in 1893.[2] This standard remained for both courts until 1974 when the legislature amended domestic relations custody statute ORC §3109.04. Where this statute previously explicitly required the unsuitability of a parent before that parent could lose custody to a third party, the legislature substituted a mere “best interest” test such that even suitable parents could lose custody of their child to a nonparent if the court determined this to be in the best interest of the child. [3] This change has significant constitutional problems.

Constitutional Implications of “ Best Interest” Versus “Unsuitability”

Parents have heightened protections under the Due Process Clause of the Fourteenth Amendment to “establish a home and bring up children”. [4] The United States Supreme Court has repeatedly and emphatically upheld the primacy of this right as to suitable parents which is implicated in every custody battle between a parent and nonparent. [5] As such, the Court requires a finding of unsuitability before a parent may lose custody to a nonparent as a means of ensuring due process.[6] In striking down a grandparent visitation statute over the protests of a suitable parent which allowed “forced visitation” of a child at 'any time' if it serves the “best interest of the child”, the Troxel court held:

“We have long recognized that a parent's interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment.”“We returned to the subject in Princev.Massachusetts,321U. S.158 (1944),and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. It is cardinal withusthat the custody, care and nurture of the child reside first in the parents…."Id.,at 166.”[7]

This long-held protection applies even when parents have lost temporary custody of their children and it requires that “fundamentally fair procedures be implemented when adjudicating the custodial rights of parents.” [8] Thus, these constitutional protections afforded to parents serve to keep the state from wrongfully separating the family without a prerequisite finding of parental unfitness. [9]

Similarly, Ohio law severely limits the circumstances under which the State may deny parents custody of their child. Before a court can grant custody of a child to a nonparent from a parent, there must be a demonstration by a preponderance of the evidence that the parent may be judged unsuitable. [10] The mere existence of parental moral or character weakness is not enough.[11] Rather, unsuitability is met when placement of the child with the parent would be detrimental to the child.[12] This ensures that the right of the parent to raise his or her own child is balanced with the right of the state as parens patriae to protect the child’s welfare in the face of possible harm.[13]

In contrast, the “best interest –only” test is comparative, comparing the situations and treating the nonparent as being on equal footing with the parent. Suitable parents are afforded no protections nor are their rights held superior to nonparents. It looks only “to the best situation available to the child and places him there” regardless of the suitability of the parent.[14] This may result in a suitable parent losing custody of his or her child simply because a judge believes a better situation exists. It is precisely this which renders the statute unconstitutional. [15]

Ohio Custody Statutes

In Ohio, child custody proceedings are adjudicated under three primary statutes: jurisdiction is conferred on the domestic relations court pursuant toR.C. 3109.04 (A) in cases arising out of "any divorce, legal separation, or annulment proceeding and in any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child “in accordance with the best interests of the child." [16]

Alternatively, § 2151.23(A)(1) grants exclusive original jurisdiction to juvenile court when children are alleged to be abused, neglected, or dependent. [17] Since 2006, this adjudication also automatically implies a determination that the child’s custodial and non-custodial parents are unsuitable. [18] The court then proceeds to adjudicate only the best interests of the child.

Lastly, §2151.23 (A)(2),(F)(1), vests exclusive original jurisdiction for private custody matters in the juvenile court for "any child not a ward of another court of this state”. These matters are generally also to be adjudicated applying the best interest factors “in accordance with sections 3109.04, inter alia...”[19]

Confused Court Responses To The 1974 Amendment

The 1974 amendment to §3109.04 seemed to dictate custody to nonparents based on best interest only, regardless of the suitability of the parents. [20]Boyer v. Boyer, the first Ohio Supreme Court case interpreting this amendment, affirmed the grant of custody to nonparents over suitable parents with no requirement of first finding the parents unsuitable.[21] Not only did this interpretation conflict with historical Ohio precedent, it repudiated the long-standing, constitutionally- protected primacy parents have as to the care of their children.

The Supreme Court refined Boyer’s statutory interpretation with In re Perales, which revived the long-standing Clark v. Bayer standard, supra.[22]Perales handled the contradiction between its holding of requiring a finding of unsuitability and Boyer’s finding that no unsuitability is required by noting that §3109.04 cases usually arise in a divorce situations between suitable parents, thus the court can assume parental suitability as between two parents.[23] This was an effort to meld the two standards, unsuitability and best interest, together with an implicit presumption of suitability, thereby preserving the constitutionality of the statute.

Additionally, Perales confirmed that in juvenile custody battles between parent and nonparents under §2151.23(A)(2), an explicit finding of unsuitability was still required. However, the Perales court left untouched the new §3109.04 problem caused by the 1974 amendment: the statute, itself, now explicitly allowed parent versus nonparent custody determinations to be made under the best interest-only test, granting courts complete freedom to take custody away from entirely suitable parents. [24]

The confusion came to a head with Baker v. Baker in 1996 when the ninth district followed Boyer’s new finding that ”3109.04 does not require an explicit finding of unsuitability.” [25]Baker noted the confusion in Ohio custody jurisprudence and then proceeded to add to it. This decision in a father versus uncle custody battle quite painfully attempted to explain that the new best interest- only test violated neither the Ohio nor the United States constitution's protection of fundamental parental rights by explaining that best interest includes an “implicit finding regarding suitability”, thus, there was no need for an explicit finding. Yet, in the same breath, this appellate court, sua sponte, then explicitly determined that the father was unsuitable based on the trial evidence.[26]

Final Resolution: The Necessity of Unsuitability

The Ohio Supreme Court did ultimately resolve this conundrum by 2002, giving us a trifecta of cases which upheld the requirement that courts must first make a finding of unsuitability as to parents in original custody determinations with nonparents before they could grant custody to a nonparent under both §2151.23 and §3109.04 cases.

In 1986, the Masitto court definitively upheld the Perales standard, citing both Perales and Clark v. Bayer, supra, by requiring a parental unsuitability finding prior to granting custody to a nonparent as a general rule in Ohio. [27] Any remaining residual confusion surrounding the unsuitability requirement after Masitto was emphatically addressed and patently resolved by the Hockstock Courtin 2002. After reviewing both domestic relations and juvenile Ohio custody statutes, the Court clarified the issue which Perales had left untouched:

“Regardless of which court ha[s] jurisdiction, the juvenile or the domestic relations division …, this court recognized the overriding importance of a trial court's making a parental unsuitability determination on the record before awarding custody away from a natural parent to a nonparent. And, “for these reasons the position of this court in this area of child custody law ought to be clear.”[28]

In absolute accord with the Ohio Supreme Court is the interpretation by the Ohio Legislative Service Commission, a brief prepared for members of the Ohio General Assembly laying out the current law for the legislators. This brief explains RC 3109.04(D)(2) by explicitly noting that the court is obliged to uphold the fundamental rights of parents:“without a finding of unsuitability, the allocation of parental rights and responsibilities to a nonparent infringes on the parent’s fundamental right.” [29]

Ultimately, the Ohio Supreme Court has come full circle to resurrect Clark v. Bayer via Perales and Hockstock in upholding the constitutionally- protected parental rights in parent versus nonparent custody battles.[30]Thus, in spite of, and contrary to, the 1974 amendment to §3109.04, the standard in Ohio remains:

A court may not make an original award of custody to the nonparent without first determining that a preponderance of the evidence shows that the parent abandoned the child; contractually relinquished custody of the child; that the parent has become totally incapable of supporting or caring for the child; or that an award of custody to the parent would be detrimental to the child.[31]

[1]Clark v. Bayer, 32 Ohio St. 299 (1877).

[2]Thrasher v. Thrasher, 3 Ohio App.3d 210, 213, 444 N.E.2d 431 (9th Dist.1981).

[3] Ohio Laws 135 v H 233 (1973-74).

[4]Meyer v. Nebraska, 262 U.S. 390, 399 (1923) recounting the liberty interests guaranteed by the Fourteenth Amendment: ("No State shall . . . deprive any person of life, liberty, or property, without due process of law." This right includes: “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children,to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” “The established doctrine is that this liberty may not be interferedwith, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.“) .

[5]Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 147(2000)( Reiterating the “extensive precedent” upholding the proposition that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents concerning their children, and referencing the legal history: Washingtonv.Glucksberg,521 U. S. 702, 720(1997); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Stanley v. Illinois, 405 U. S. 645, 651 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972); Santosky v. Kramer, 455 U. S. 745, 753 (1982); Quilloin v. Walcott, 434 U. S. 246, 255 (1978);Parham v. J. R., 442 U. S. 584, 602 (1979).

[6]Stanley v.Illinois,405 U.S. 645 (1972)(Though an unwed father challenged automatically losing his children to the state upon the death of their mother under the Equal Protection Clause, the Court enforced Stanley’s parental rights under the Due Process Clause. “The State's interest in caring for Stanley's children isde minimisif Stanley is shown to be a fitfather. It insists on presuming rather than proving Stanley's unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing when the issue at stake is the dismemberment of his family.”).

[7]Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 147(2000) .

[8]Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 59.

[9]In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990);In re Adoption of Mays, 30 Ohio App.3d 195, 198, 30 OBR 338, 507 N.E.2d 453.

[10]In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047(1977).(The unsuitability test is also referred to as the Perales test. ) (“A court may not make an original award of custody to the nonparent "without first determining that a preponderance of the evidence shows that the parent abandoned the child; contractually relinquished custody of the child; that the parent has become totally incapable of supporting or caring for the child; or that an award of custody to the parent would be detrimental to the child.”).

[11]Perales at fn 12.

[12]In re Perales, 52 Ohio St.2d 89(1977) (“Our requirement of such a finding is in keeping with the procedural protection afforded parents by the General Assembly in neglect, abuse or dependency hearings… and with the safeguards we have granted parents in R. C. 2151.23(A)(3) habeas corpus proceedings” ); In re CVM, 2012 Ohio 5514, Ohio Ct.App., (8th Dist. 2012).

[13]Troxel dissent at 88,(“A parent's interests in a child must be balanced against the State's long-recognized interests asparens patriae….”).

[14]Thrasher, 3Ohio App. 3d 210.

[15]Troxel at 73(“The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a "better" decision could be made.”).

[16]ORC §3109.04(A)(Lexis 2015).

[17] ORC§2151.(A)(1) (Lexis 2015).

[18]In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191(Applies an automatic finding of unsuitability to both parents, custodial and non-custodial, regardless of fault or knowledge of the abuse/neglect/or dependency. However, this case was decided along a 4-3 split with the dissent urging that this is repugnant to the constitutional rights of the non-custodial parent who is clearly not afforded due process. ) .

[19] ORC §2151.23(A)(2) , (F)(1)(”The juvenile court shall exercise its jurisdiction in child custody matters in accordance with sections 3109.04 and 3127.01 to 3127.53 of the Revised Code ….”) But see,In re Bonfield, 97 Ohio St.3d 387 (2002)(held that if the case was one of original jurisdiction to juvenile court, it may, but is not required to follow 3109.04 in private, non-abuse custody cases. The result allows nonparent and parent to enter a voluntary shared parenting plan pursuant to best interest of the child. ”We hold that the juvenile court has jurisdiction to determine the custody of the Bonfield children pursuant to R.C. 2151.23(A)(2) without reference to R.C. 3109.04.”) (Lexis 2015).

[20] ORC 3109.04(D)(2); 3109.04(F)(1) (Lexis 2015).

[21]Boyer v. Boyer, 46 Ohio St.2d 83(1976).

[22]In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977).

[23]In re Perales,52 Ohio St.2d 89.

[24] ORC§3109.04(D)(2)”If the court finds, with respect to any child under eighteen years of age, that it is in the best interest of the child for neither parent to be designated the residential parent and legal custodian of the child, it may commit the child to a relative of the child.…“(emphasis added) (Lexis 2015).

[25]Baker v. Baker, 113 Ohio App. 3d 805( 9th dist.1996).

[26]Id.

[27]Masitto v. Masitto, 22 Ohio St.3d 63, 488 N.E.2d 857(1986)(Masitto also stands for the proposition that once a parent has agreed to grant custody to a nonparent, that parent has contracted away superior rights and modifications will proceed on best interest only. ”However, once an original custody award has been made, the general rule is that such award will not be modified unless "necessary to serve the best interest of the child." R.C. 3109.04(B).)

[28]In re Hockstock, 98 Ohio St.3d 238 at 241, 244 (2002) ; Scavio v. Ordway, 2010 Ohio 984, Ohio Ct.App.,( 3rd Dist. 2010).

[29] LSC Members Only brief, Vol.127, Issue 12. July 30, 2008 p.3(citing Troxel v Granville (2002) and Hockstock(2002).)Note this brief does not have the force of law.

[30]In re Hayes,79 Ohio St.3d 46, 48 (1997), citing In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990).

[31]In re Perales,52 Ohio St.2d 89(1977);See also In re:James,113 Ohio St.3d 420 ( 2007)(affirming the requirement of unsuitability as required in Hockstock);.In re Lowe, 7th Dist. No. 00-CO-62, 2002-Ohio-440.