In re E.J.M.

2024 Ohio 3082

• Court: Ohio Court of Appeals
• Decided: August 14, 2024
• Docket: C-240026
• Status: Published

Opinion

[Cite as In re E.J.M., 2024-Ohio-3082.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: E.J.M. : APPEAL NO. C-240026 TRIAL NO. F-16-2479Z :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 14, 2024

Smith, Meier & Webb, LPA, and Andrew P. Meier for Appellant Father,

Law Office of Laurie B. Gibson and Laurie B. Gibson for Appellee Mother. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} Years of acrimonious litigation regarding the custody of Parents’ shared

child resulted in a court order awarding appellant Father six hours of weekly parenting

time. But less than a year later, prompted by concerning changes in the child’s

behavior following visits with Father, appellee Mother began withholding Father’s

parenting time and later moved to modify parenting time. Father responded by filing

a series of contempt motions and a motion to expand his parenting time. Ultimately,

after sifting through the evidence, the juvenile court agreed with Mother and

terminated Father’s parenting time, citing its concerns for the child’s well-being.

Father now appeals, arguing that the court abused its discretion by terminating his

parenting time and by failing to hold Mother in contempt. But the record tells a

different story, and, unpersuaded by Father’s arguments, we overrule his assignments

of error and affirm the juvenile court’s judgment.

I.

{¶2} E.J.M., born in 2014, is the biological son of Mother and Father

(together, “Parents”). Parents have a long and acrimonious history marred by

allegations of domestic violence and abuse by both parties. Their romantic

relationship ended in 2015 when E.J.M. was approximately one year old. Initially,

Parents attempted to coordinate visitation and custody themselves, but in November

2016, Father filed a petition for custody or shared parenting. Parents entered an

agreed parenting plan in August 2017, granting Mother legal custody and awarding

Father parenting time every Tuesday and every other weekend. But unfortunately,

this plan did not resolve the conflict between Parents. Over the next two years, both

Parents violated various provisions of the agreed plan.

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{¶3} In 2019, Father again petitioned the court for custody or additional

parenting time. Through mediation, Parents agreed to follow a temporary parenting

plan until the juvenile court resolved the matter, but the temporary plan did not last

long as Mother sought to modify the temporary parenting agreement, and both

Parents filed dueling motions for contempt.

{¶4} In September and October 2020, the juvenile court convened the

combined custody and parenting time trial, and it ultimately revised the interim order

so that Father did not have overnight visitations during the week and ordered all

exchanges to occur at the Cincinnati Police Department. A few months later, Mother

requested an ex parte emergency order to suspend Father’s visitation entirely or to

order supervision for all visits, citing concerns that E.J.M. faced danger of immediate

physical harm or threat of harm. Mother alleged that E.J.M. had returned from

Father’s home in tears, claiming that Father told E.J.M. that he “can’t take this

anymore,” “won’t see him again,” and “is going far, far away forever.” Mother also

detailed in her affidavit that Father persisted in texting her directly, told E.J.M. that

Mother stabbed him with a knife, and refused to exchange E.J.M. at the police

department as ordered by the juvenile court. The court suspended Father’s parenting

time upon the filing of the emergency motion.

{¶5} At the hearing on the emergency motion, Mother offered to withdraw

the motion and allow Father’s visitation to be reinstated if he agreed to abide by the

provisions of the court-approved temporary parenting plan (under which Parents were

still operating because no final custody decision had been entered). But Father

declined Mother’s offer, claiming he wanted to postpone the hearing and consult a

lawyer. Following the continued hearing, the court determined that Father violated

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the terms of the parenting plan, noted his erratic behavior during the court

proceedings, and ordered that his visitation remain suspended until the court issued

a decision in the custody case.

{¶6} The juvenile court entered its final decision on Father’s custody petition

and on Mother’s request to modify parenting time in September 2021. The court

limited Father’s visitation with E.J.M. to six hours every other Sunday but stated that

it would consider increasing Father’s visitation if he completed an anger management

program or engaged in counseling. And prompted by Father’s threats to Mother, the

court advised Father that his visitation would be immediately terminated if he

contacted Mother outside of their approved parenting application. Father appealed

the decision to this court, challenging various aspects of the juvenile court’s order,

including the restriction of his visitation time and the court’s finding of a change in

circumstances. Based on the record, we upheld the juvenile court’s decision. See

Massong v. Tyner, 2022-Ohio-2933 (1st Dist.).

{¶7} Beginning in September 2021, Parents followed the 2021 decision. But

in August 2022, things again fell apart. When Mother arrived to pick up E.J.M. from

a visit with his Father, he ran out of Father’s vehicle, crying hysterically. Prompted by

E.J.M.’s concerning behaviors following this visit, Mother immediately suspended

E.J.M.’s visits with Father. She enrolled E.J.M. in school counseling to address his

changes in behavior. And in September 2022, Mother moved to modify parenting

time. In response, Father launched a series of four contempt motions and moved to

modify parenting time in October 2022.

{¶8} A magistrate held a preliminary hearing on parenting time and other

pending motions in May 2023. Without a full evidentiary hearing, she referred the

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matter for eligibility screening to facilitate supervised parenting time for Father. But

Mother immediately filed a motion to set aside the order and issue a stay, and the court

granted a stay pending trial on the matter.

{¶9} At the trial before the magistrate in June 2023, Parents (who were both

represented by counsel) testified and introduced exhibits. Mother testified that after

spending time with Father, E.J.M. would often come home with bruises and scratches

and exhibited concerning behaviors. Prompted by these behaviors, she placed E.J.M.

in school counseling. According to Mother, Father also contacted her outside of the

parenting application, in violation of the court’s order. Mother obtained a domestic

violence civil protection order (valid through April 2024), but E.J.M. was not a

protected party under the order.

{¶10} Father, on the other hand, testified that from September 2021 until

August 2022, he and E.J.M. spent time together being active—playing sports, riding

bikes and hiking. He alleged that E.J.M. seemed full of energy and happy during their

visits but noted that E.J.M. was usually tired afterwards (because of the active nature

of their visits). He claimed he never noticed the child acting upset during drop-off.

Additionally, Father testified that he was in therapy from 2016 until 2021 and attended

an eight-week anger management program in 2022. Father maintained that because

of therapy and his classes, he knows how to control and handle his emotions in a more

productive manner. And finally, Father clarified that he texted Mother outside of the

approved parenting application simply because he was responding to a call from her.

{¶11} After hearing Parents’ testimony and considering the evidence, the

magistrate denied Father’s motions for contempt, finding that while Mother violated

a valid court order, she reasonably and in good faith feared for E.J.M.’s safety in light

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of the child’s distress following his visits with Father. After weighing the best interest

factors, the magistrate terminated Father’s parenting time as in E.J.M.’s best interest.

{¶12} Father promptly objected, insisting that the decision essentially

deprived him of his parental rights. The juvenile court heard oral arguments on his

objection in October 2023. Upon reviewing the magistrate’s decision and hearing

Father’s objections, the juvenile court overruled all objections and adopted the

magistrate’s decision. Father now appeals.

II.

{¶13} In his first assignment of error, Father argues that the juvenile court

erred in terminating his parenting time without providing any possible measures to

continue his relationship with E.J.M. This court reviews the juvenile court’s

modification of parenting time for “an abuse of discretion.” Wilfong v. Bush, 2023-

Ohio-1256, ¶ 18 (1st Dist.), citing Veach v. Adams, 2022-Ohio-4031, ¶ 10 (1st Dist.).

An abuse of discretion occurs when “a court exercis[es] its judgment, in an

unwarranted way, in regard to a matter over which it has discretionary authority.”

Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. The juvenile court “has broad discretion

in modifying parenting time.” Veach at ¶ 10, citing Kane v. Hardin, 2019-Ohio-4262,

¶ 27 (1st Dist.). And that discretion includes the power to “ ‘ “deny visitation rights

altogether.” ’ ” Id. at ¶ 12, quoting Hagan v. Hagan, 2019-Ohio-51, ¶ 44 (5th Dist.),

quoting Jannetti v. Nichol, 2000 Ohio App. LEXIS 2116, *8 (7th Dist. May 12, 2000).

{¶14} Here, Mother is the legal custodian of E.J.M., so any modification to

Father’s parenting time is governed by R.C. 3109.051. See id. at ¶ 11. Therefore, a

change in circumstances is not required. Instead, the juvenile court was required to

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determine whether the modification furthered the child’s best interest, considering the

factors set forth in R.C. 3109.051(D). The best interest factors include:1

(1) The prior interaction and interrelationships of the child with the

child’s parents, siblings, and other persons related by consanguinity or

affinity . . .;

(2) The geographical location of the residence of each parent and the

distance between those residences . . .;

(3) The child’s and parents’ available time, including, but not limited to,

each parent’s employment schedule, the child’s school schedule, and the

child’s and the parents’ holiday and vacation schedule;

(4) The age of the child;

(5) The child’s adjustment to home, school, and community;

(6) If the court has interviewed the child in chambers, pursuant to

division (C) of this section, regarding the wishes and concerns of the

child as to parenting time by the parent who is not the residential parent

. . . as to a specific parenting time or visitation schedule, or as to other

parenting time or visitation matters, the wishes and concerns of the

child, as expressed to the court;

(7) The health and safety of the child;

(8) The amount of time that will be available for the child to spend with

siblings;

(9) The mental and physical health of all parties;

1 The factors set forth in R.C. 3109.051(D)(12) and (15) are not applicable to Parents, so we omit

them here. 7 OHIO FIRST DISTRICT COURT OF APPEALS

(10) Each parent’s willingness to reschedule missed parenting time and

to facilitate the other parent’s parenting time rights . . .;

(11) In relation to parenting time, whether either parent previously has

been convicted of or pleaded guilty to any criminal offense involving any

act that resulted in a child being an abused child or a neglected child;

whether either parent, in a case in which a child has been adjudicated

an abused child or a neglected child, previously has been determined to

be the perpetrator of the abusive or neglectful act that is the basis of the

adjudication; and whether there is reason to believe that either parent

has acted in a manner resulting in a child being an abused child or a

neglected child;

...

(13) Whether the residential parent or one of the parents subject to a

shared parenting decree has continuously and willfully denied the other

parent’s right to parenting time in accordance with an order of the court;

(14) Whether either parent has established a residence or is planning to

establish a residence outside this state;

(16) Any other factor in the best interest of the child.

R.C. 3109.051(D); see Wilfong at ¶ 20.

{¶15} Here, the juvenile court assessed all of the relevant best interest factors.

Regarding the child’s interactions and relationships with Parents and any siblings, the

court emphasized the child’s “tremendous anguish” after visits with Father that

resulted in him sleeping on Mother’s bedroom floor, which was new and unusual

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behavior for the child, Father’s history of behavior for which he was ordered (and did

complete) anger management, and Mother’s domestic violence protection order

regarding Father. The court also weighed the geographical location of each parent, the

age of E.J.M. (nine years old), E.J.M.’s adjustment to Mother’s house and community

(and his recent lack of time spent with Father since visits were suspended in August

2022), and the fact the child’s half-sibling lived in Mother’s home. And it noted that

there was not any testimony demonstrating that the schedules of Parents and E.J.M.

caused any difficulty with Father’s parenting time.

{¶16} The court contemplated the wishes of E.J.M. as expressed by the child

via an in-camera interview. And it expressed concerns for E.J.M.’s health and safety

while in Father’s care, citing the changes in E.J.M.’s behavior. At trial, Mother testified

that in 2022, E.J.M. began exhibiting concerning new behaviors after visits with

Father—he acted upset, was very quiet, declined to eat, and isolated himself in his

room. Additionally, she testified that the child would return home with bruises and

scratches. She offered photos of these injuries. However, the photograph of the

scratches was dated two days after E.J.M. had returned from a visit, and a photograph

of bruising on E.J.M.’s ear from Father biting it was from 2021 (prior to the court’s

September 2021 order). While Father argues that the juvenile court relied only on old

evidence that was already used as the basis to restrict his parenting time to six hours

weekly via the 2021 court order, and Mother did proffer at least one piece of old

evidence (which notably the court determined was inadmissible), Mother presented

ample new evidence for the court to consider.

{¶17} The court also evaluated the lack of any mental or physical health

concerns regarding either parent, any convictions or adjudications related to child

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abuse or neglect, and any residence out of this state (or plans to establish such a

residence). Although the court noted that Mother “continuously and willfully” denied

Father parenting time, it found that she “had a reasonable, good faith belief that she

must deny visitation to protect the safety of the child.” And finally, the court declined

to consider any additional factors in the best interest of the child.

{¶18} While we appreciate Father’s comparison of the termination of his

parenting time to a termination of his parental rights and acknowledge his frustration

with the lack of a clear pathway to reestablish his relationship with E.J.M., the court’s

decision regarding parenting time is not irrevocable, and Father could later request

the juvenile court to reinstate his parenting time if circumstances warrant it. But, at

this point, given his behavior, the evidence of the safety concerns regarding the child,

and the severe distress the child suffered following visits with Father, the court acted

in the best interest of E.J.M. and did not abuse its discretion when terminating his

parenting time. Accordingly, we overrule Father’s first assignment of error.

III.

{¶19} Turning to Father’s second assignment of error, he challenges the

juvenile court’s failure to find Mother in contempt for denying his parenting time. In

response, Mother claims that she had a reasonable, good faith belief that she had to

deny his parenting time to protect the safety of E.J.M.

{¶20} This court reviews a juvenile court’s ruling on a contempt motion for an

abuse of discretion. Morrison v. Walters, 2023-Ohio-2887, ¶ 19 (1st Dist.), citing Wolf

v. Wolf, 2010-Ohio-2762, ¶ 4 (1st Dist.). As stated above, an abuse of discretion occurs

when “a court exercis[es] its judgment, in an unwarranted way, in regard to a matter

over which it has discretionary authority.” Johnson, 2021-Ohio-3304, at ¶ 35.

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{¶21} Parents subject to a custody order may initiate a contempt action when

the other party fails to comply with the order. See R.C. 2705.031(B)(2). The moving

party may establish a prima facie case of civil contempt by proving, by clear and

convincing evidence, “ ‘both the existence of a court order and the nonmoving party’s

noncompliance with the terms of that order.’ ” Morrison at ¶ 19, quoting Wolf at ¶ 4.

“Once the movant establishes a prima facie case of contempt, the burden shifts to the

nonmovant to establish a defense for the noncompliance.” In re G.W., 2024-Ohio-

1551, ¶ 14 (1st Dist.), citing Wolf at ¶ 4. Several Ohio courts have found that such a

defense may arise when a residential parent “has a reasonable, good faith belief that

he or she must deny visitation to protect the safety of the child.” Thompson v.

Thompson, 2023-Ohio-667, ¶ 57 (12th Dist.), citing Brennan v. Brennan, 2021-Ohio-

1865, ¶ 37 (5th Dist.); see Steele v. Steele, 2013-Ohio-3655, ¶ 20 (2d Dist.).

{¶22} There is no dispute regarding the existence of a court order entitling

Father to parenting time or Mother’s failure to comply with the order. Therefore, we

proceed by evaluating whether Mother established a defense for her noncompliance

with the court order. The juvenile court found that “Mother had a reasonable, good

faith belief she must deny Father’s visitation to protect the safety of the Child,”

referencing E.J.M.’s “unusual and concerning distress” following visits and prior

restrictions on Father’s parenting time due to his behavior.

{¶23} Father ascribes error to the court’s determination, arguing that

Mother’s concern regarding E.J.M.’s safety was primarily based on alleged events

occurring before September 2021 (when the court issued the initial custody order).

But, as discussed in the best interest analysis above, Mother presented new evidence

of E.J.M.’s concerning behavior following visits with Father.

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{¶24} Father also seems to assert that because Mother’s domestic violence

civil protection order against Father does not include E.J.M. as a protected party, the

order indicates that the child did not need protection. But the exclusion of the child

from the protection order is not dispositive of the reasonableness of Mother’s belief

that she needed to deny Father parenting time in order to protect E.J.M. Similarly,

Father notes that the child has only seen a school-based counselor twice following the

alleged harm. Again, this fact is not sufficient to establish that Mother’s concern for

the child was unreasonable. Scheduling and school resource issues could have

prevented the child from seeing the counselor more frequently; it in no way casts doubt

on Mother’s legitimate fear for E.J.M.’s safety.

{¶25} And further, as a condition of Father’s parenting time, his

communications with Mother were limited to the parenting application—the court

order specifically stated that “[a]ny contact with Mother made by Father outside of the

[parenting application], and absent an emergency involving Child, shall result in

immediate suspension of Father’s visitation.” Yet Mother testified that Father

contacted her outside of the application to inform her that his subscription to the

application had lapsed (not an emergency involving the child). Notably, however,

Mother did not begin withholding parenting time immediately upon receiving the out-

of-application messages.

{¶26} Based on these facts, we hold that the juvenile court did not abuse its

discretion by failing to find Mother in contempt for withholding Father’s parenting

time and overrule Father’s second assignment of error.

* * *

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{¶27} In light of the foregoing analysis, we overrule Father’s assignments of

error and affirm the judgment of the juvenile court.

Judgment affirmed.

WINKLER and KINSLEY, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.