[Cite as In re C.V.M., 2012-Ohio-5514.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98340
IN RE: C.V.M., JR.
A Minor Child
[APPEAL BY FATHER]
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 03902263
BEFORE: Keough, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: November 29, 2012 ATTORNEY FOR APPELLANT
Mark S. O’Brien Heights Medical Center Building 2460 Fairmount Blvd. Suite 301B Cleveland Heights, OH 44106
FOR APPELLEES
Michael B. Granito 24400 Highland Road Suite 162 Richmond Hts., Ohio 44143
A.W., pro se 4822 Walford Road Apt. 209 Warrensville Hts., Ohio 44128
L.M., pro se 4889 Banbury Court #2 Warrensville Heights, OH 44128 KATHLEEN ANN KEOUGH, J.:
{¶1} Father-appellant appeals from the trial court’s decision awarding legal
custody of his son, C.V.M., to appellee, a nonparent. For the reasons that follow, we
reverse and remand for the trial court to apply the correct legal standard of parental
unsuitability to the facts and evidence contained in the trial court record.
{¶2} Appellant is the natural father of C.V.M., who was born in 2003. In 2004,
the juvenile court granted custody of C.V.M. to father and his wife, who is not C.V.M.’s
biological mother. Both father and wife acted as parents to the child. In 2010, wife
filed for divorce against father. In May 2010, father filed a motion with the juvenile
court for sole legal custody of C.V.M.; however, wife (hereinafter referred to as
“custodian”) obtained physical custody of the child. In August 2010, custodian was
granted temporary custody of the child and was granted a divorce from father.
Thereafter, a myriad of contentious motions were filed, and allegations were made by the
parties against each other. Ultimately, motions were filed by custodian for sole legal
custody of C.V.M. and by father for modification of the temporary custody order.
{¶3} The trial court held a hearing on all pending motions, including the motions
affecting the sole legal custody of C.V.M. The crux of the hearing was to determine who
would be the child’s legal custodian. The trial court took testimony from father,
custodian, C.V.M.’s guardian ad litem, C.V.M.’s birth mother, and five character
witnesses called on behalf of father. Following the hearing, the trial court issued a judgment entry and written opinion granting legal custody to the custodian after finding
that an award of custody to father would be detrimental to the child.
{¶4} Father appeals raising two assignments of error, both challenging the trial
court’s decision granting custody to the nonparent. In his first assignment of error, father
argues that the trial court abused its discretion in determining that he was an unsuitable
parent. In his second assignment of error, he argues that his constitutional rights were
violated and the trial court abused its discretion by not applying a clear and convincing
evidentiary standard. We will discuss these assignments of error together.
{¶5} A trial court enjoys broad discretion in custody proceedings because “custody
issues are some of the most difficult and agonizing decisions a trial judge must make.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159. A trial
court’s custody determination will not be disturbed unless the court abused that
discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). An “abuse of
discretion” connotes that the court’s attitude is “unreasonable, arbitrary, or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983); Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).
{¶6} While the trial court has discretion in custody proceedings, the record must
contain sufficient factual evidence to support the court’s findings. In re Schwendeman,
4th Dist. Nos. 05CA18, 05CA25, 2006-Ohio-636, ¶ 19; Beekman v. Beekman, 96 Ohio
App.3d 783, 787, 645 N.E.2d 1332 (4th Dist. 1994). We will not reverse a judgment as being against the manifest weight of the evidence when the record contains some
competent, credible evidence going to all the essential elements of the case. C.E. Morris
Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. In
conducting our review, we must make every reasonable presumption in favor of the trial
court’s findings of fact. Myers v. Garson, 66 Ohio St.3d 610, 614, 1993-Ohio-9, 614
N.E.2d 742; Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984). We give deference to the trial court as the trier of fact because it is “best able to
view the witnesses and observe their demeanor, gestures, and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.” Id. at 80.
{¶7} Because legal custody where parental rights are not terminated is not as
drastic a remedy as permanent custody, the trial court’s standard of review in a legal
custody proceeding is not clear and convincing evidence as in permanent custody
proceedings, but merely preponderance of the evidence. In re D.P., 10th Dist. No.
05AP-117, 2005-Ohio-5097, ¶ 52 (citations omitted). “Preponderance of the evidence”
means “evidence that’s more probable, more persuasive, or of greater probative value.”
Id., quoting State v. Finkes, 10th Dist. No. 01AP-310, 2002-Ohio-1439.
{¶8} In a child custody proceeding between a parent and nonparent, not arising
from an abuse, neglect or dependency determination, a court may not award custody to
the nonparent
without first making a finding of parental unsuitability — that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent 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.
In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977), syllabus; In re Hockstok, 98
Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 17.
{¶9} In this case, the trial court found by a preponderance of the evidence that “the
award of the child’s custody to the father would be detrimental to the child.” Although
the trial court did not use the exact wording that father was “unsuitable,” we conclude
that the use of the term “detrimental,” by definition, evidences that the trial court was
making a finding of parental unsuitability.
{¶10} The “suitability” test is different from the “best interest” test. A pure “best
interest” test looks totally to the best situation available to the child and places the child in
that situation. Thrasher v.
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[Cite as In re C.V.M., 2012-Ohio-5514.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98340
IN RE: C.V.M., JR.
A Minor Child
[APPEAL BY FATHER]
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 03902263
BEFORE: Keough, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: November 29, 2012 ATTORNEY FOR APPELLANT
Mark S. O’Brien Heights Medical Center Building 2460 Fairmount Blvd. Suite 301B Cleveland Heights, OH 44106
FOR APPELLEES
Michael B. Granito 24400 Highland Road Suite 162 Richmond Hts., Ohio 44143
A.W., pro se 4822 Walford Road Apt. 209 Warrensville Hts., Ohio 44128
L.M., pro se 4889 Banbury Court #2 Warrensville Heights, OH 44128 KATHLEEN ANN KEOUGH, J.:
{¶1} Father-appellant appeals from the trial court’s decision awarding legal
custody of his son, C.V.M., to appellee, a nonparent. For the reasons that follow, we
reverse and remand for the trial court to apply the correct legal standard of parental
unsuitability to the facts and evidence contained in the trial court record.
{¶2} Appellant is the natural father of C.V.M., who was born in 2003. In 2004,
the juvenile court granted custody of C.V.M. to father and his wife, who is not C.V.M.’s
biological mother. Both father and wife acted as parents to the child. In 2010, wife
filed for divorce against father. In May 2010, father filed a motion with the juvenile
court for sole legal custody of C.V.M.; however, wife (hereinafter referred to as
“custodian”) obtained physical custody of the child. In August 2010, custodian was
granted temporary custody of the child and was granted a divorce from father.
Thereafter, a myriad of contentious motions were filed, and allegations were made by the
parties against each other. Ultimately, motions were filed by custodian for sole legal
custody of C.V.M. and by father for modification of the temporary custody order.
{¶3} The trial court held a hearing on all pending motions, including the motions
affecting the sole legal custody of C.V.M. The crux of the hearing was to determine who
would be the child’s legal custodian. The trial court took testimony from father,
custodian, C.V.M.’s guardian ad litem, C.V.M.’s birth mother, and five character
witnesses called on behalf of father. Following the hearing, the trial court issued a judgment entry and written opinion granting legal custody to the custodian after finding
that an award of custody to father would be detrimental to the child.
{¶4} Father appeals raising two assignments of error, both challenging the trial
court’s decision granting custody to the nonparent. In his first assignment of error, father
argues that the trial court abused its discretion in determining that he was an unsuitable
parent. In his second assignment of error, he argues that his constitutional rights were
violated and the trial court abused its discretion by not applying a clear and convincing
evidentiary standard. We will discuss these assignments of error together.
{¶5} A trial court enjoys broad discretion in custody proceedings because “custody
issues are some of the most difficult and agonizing decisions a trial judge must make.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159. A trial
court’s custody determination will not be disturbed unless the court abused that
discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). An “abuse of
discretion” connotes that the court’s attitude is “unreasonable, arbitrary, or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983); Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).
{¶6} While the trial court has discretion in custody proceedings, the record must
contain sufficient factual evidence to support the court’s findings. In re Schwendeman,
4th Dist. Nos. 05CA18, 05CA25, 2006-Ohio-636, ¶ 19; Beekman v. Beekman, 96 Ohio
App.3d 783, 787, 645 N.E.2d 1332 (4th Dist. 1994). We will not reverse a judgment as being against the manifest weight of the evidence when the record contains some
competent, credible evidence going to all the essential elements of the case. C.E. Morris
Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. In
conducting our review, we must make every reasonable presumption in favor of the trial
court’s findings of fact. Myers v. Garson, 66 Ohio St.3d 610, 614, 1993-Ohio-9, 614
N.E.2d 742; Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984). We give deference to the trial court as the trier of fact because it is “best able to
view the witnesses and observe their demeanor, gestures, and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.” Id. at 80.
{¶7} Because legal custody where parental rights are not terminated is not as
drastic a remedy as permanent custody, the trial court’s standard of review in a legal
custody proceeding is not clear and convincing evidence as in permanent custody
proceedings, but merely preponderance of the evidence. In re D.P., 10th Dist. No.
05AP-117, 2005-Ohio-5097, ¶ 52 (citations omitted). “Preponderance of the evidence”
means “evidence that’s more probable, more persuasive, or of greater probative value.”
Id., quoting State v. Finkes, 10th Dist. No. 01AP-310, 2002-Ohio-1439.
{¶8} In a child custody proceeding between a parent and nonparent, not arising
from an abuse, neglect or dependency determination, a court may not award custody to
the nonparent
without first making a finding of parental unsuitability — that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent 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.
In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977), syllabus; In re Hockstok, 98
Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 17.
{¶9} In this case, the trial court found by a preponderance of the evidence that “the
award of the child’s custody to the father would be detrimental to the child.” Although
the trial court did not use the exact wording that father was “unsuitable,” we conclude
that the use of the term “detrimental,” by definition, evidences that the trial court was
making a finding of parental unsuitability.
{¶10} The “suitability” test is different from the “best interest” test. A pure “best
interest” test looks totally to the best situation available to the child and places the child in
that situation. Thrasher v. Thrasher, 3 Ohio App.3d 210, 213, 444 N.E.2d 431 (9th
Dist.1981). The Perales test, however, requires that some detriment to the child be
shown before he is taken away from an otherwise suitable parent. Id. Unsuitability
does not necessarily connote some moral or character weakness. Perales at 99. Simply
because one situation or environment is the “better” situation does not mean the other is
detrimental or harmful to the child. In re Porter, 113 Ohio App.3d 580, 589, 681 N.E.2d
954 (3d Dist.1996). Moreover, while the welfare of the child is a primary consideration,
the right of parents to raise their own child is an essential and basic civil right; natural
parents have a paramount right, as against third parties, to custody of their children. In re Pryor, 86 Ohio App.3d 327, 334, 620 N.E.2d 973 (4th Dist. 1993); In re Murray, 52
Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990).
{¶11} In this case, the trial court stated it relied on Perales; however, the trial
court’s judgment reflects that it engaged solely in a best interest analysis, which is
contrary to Perales and the duty placed on the court. The trial court’s opinion engages in
a comparison analysis between father and custodian. This comparison is inappropriate
under a suitability test. The duty placed before the juvenile court is whether father is
unsuitable; that is, whether custody with father would be detrimental to the child.
{¶12} Although there is no bright-line test or standard of what is detrimental to the
child, Ohio case law demonstrates that where courts found an award of custody to a
parent detrimental, the court found serious problems with the unsuitable parent. See, e.g.
In re Medure, 7th Dist. No. 01 CO 03, 2002-Ohio-5035 (children distrusted the parent;
parent verbally and physically abused the children, including hitting them with ropes;
parent did not keep adequate supplies of food at home); In re Adams, 9th Dist. No.
01CA0026, 2001-Ohio-1652 (parent was incarcerated for three months after child was
born; parent was currently on probation in two counties; parent had disorderly conduct
charges pending against him; parent had not paid child support for some time; parent had
failed to use a car seat when transporting child; parent was unable to secure a stable home
or lasting employment); Slivka v. Sealock, 5th Dist. No. 00-CA-13, 2001 Ohio App.
LEXIS 2408 (May 18, 2001) (parent had history of psychological and behavioral problems; parent’s husband had domestic violence conviction); see also Reynolds v. Ross
Cty. Children’s Servs. Agency, 5 Ohio St.3d 27, 448 N.E.2d 816 (1983); In re Z.A.P., 177
Ohio App.3d 217, 2008-Ohio-3701, 894 N.E.2d 342 (4th Dist.); In re A.W.G., 12th Dist.
No. CA2003-04-099, 2004-Ohio-2298; Karr v. Dunn, 4th Dist. No. 03CA22,
2004-Ohio-928.
{¶13} Moreover, the obvious transitional issues of moving from one home to
another (i.e. change of home, school, community, friends) is not the type of detriment
contemplated by Perales that would make a parent unsuitable in the context of a custody
dispute between a natural parent and a nonparent. In re Davis, 11th Dist. No. 02-CA-95,
2003-Ohio-809, ¶ 27-28. In Davis, the court found that merely because the child would
have a period of adjustment if the child moved from her current residence with the
nonparent to her father’s residence, did not mean that it was detrimental for her to be
raised by her father. Id. at ¶ 29.
{¶14} We find persuasive the holding and disposition of the Seventh District in
In re Lowe, 7th Dist. No. 00 CO 62, 2002-Ohio-440, where the court was confronted with
a similar situation in which the trial court applied the best interest test rather than the
suitability test in a custody determination between a parent and nonparent. In Lowe, the
court noted that comparison of the parent’s and the nonparent’s residences is not
appropriate in a suitability test. Id. at *7, citing Porter at 589. Additionally, the court
held that “in determining the suitability of a parent, the guardian ad litem testimony as to the pure best interests of the child cannot be used.” Id., citing Porter. In light of these
errors and misapplication of the appropriate test, the court reversed the judgment of the
trial court, ordered a new hearing, and ordered the trial court to apply the suitability test to
determine custody of the child. Id. at *8.
{¶15} As previously determined, the trial court in this case conducted a “compare
and contrast” analysis between the father and custodian. The focus in a suitability test,
however, should be the parent, not the nonparent. Only after a finding of parental
unsuitability, should the court then engage in a best-interest test to determine if custody to
the nonparent is in the child’s best interests. In this case, however, the trial court only
engaged in a best-interest analysis. This was clearly improper.
{¶16} Accordingly, we find that the trial court incorrectly applied the suitability
test to the facts of this case. Therefore, the trial court’s decision awarding custody to the
nonparent is reversed and the case is remanded for the trial court to apply the correct legal
standard of parental unsuitability to the facts and evidence contained in the trial court
record.
{¶17} Judgment reversed and remanded.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to Cuyahoga County Court of Common
Pleas, Juvenile Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR