In re R.V.

941 N.E.2d 1216, 190 Ohio App. 3d 313

• Court: Ohio Court of Appeals
• Decided: October 15, 2010
• Docket: No. 2009-CA-107
• Status: Published

Opinions

Brogan, Judge.

{¶ 1} Appellant Cora Morrow appeals the decision of the Clark County Court of Common Pleas, Domestic Relations Division, Juvenile Section, denying her request for visitation privilege with her two grandchildren, X.V. and R.V. Morrow contends that the trial court incorrectly determined that it did not have jurisdiction to consider and award visitation rights to Morrow. The trial court improperly determined that under R.C. 3109.051, it did not have the jurisdiction to grant visitation rights to Morrow. For the following reasons, the judgment of the trial court will be reversed.

I

{¶ 2} Travis Voorhees married Melissa Gates on September 18, 1998. They had two children, X.V., born May 13, 1999, and R.V., born January 30, 2002. On August 12, 2002, a few months after the birth of R.V., Melissa died. Two years later, on June 12, 2004, Travis married Jessica Voorhees. Jessica had an 11-year-old son from a previous relationship, and Travis later adopted him. All three children now live together with Travis and Jessica.

{¶ 3} After the death of Melissa, a myriad of events transpired, and those events worsened the relationship between Travis, Cora Morrow (Travis’s mother), and Travis’s former father-in-law, Gary Gates. While the relationships were deteriorating, Travis drastically decreased the number of visits between his children and Morrow and Gates. Gates and Morrow both filed their own complaints for companionship or visitation, requesting the ability to visit X.V. and R.V.

{¶ 4} The Clark County Court of Common Pleas, Domestic Relations Division, Juvenile Section, granted visitation rights to Gates, pursuant to R.C. 3109.11.

{¶ 5} The trial court found that Gates was entitled to visitation rights with his grandchildren, since he is the father of R.V. and X.V.’s deceased mother, Melissa Voorhees. The trial court also determined that since Morrow is the mother of Travis, the father of the children, and he is still alive, the court did not have jurisdiction to grant visitation to Morrow. It is from this determination that Morrow appeals.

II

{¶ 6} Morrow puts forth one assignment of error, which states as follows:

{¶ 7} “The trial court failed to recognize that it does have jurisdiction to consider and award, if found to be in the best interest of the minor children, visitation to plaintiff/appellant, Cora Morrow, paternal grandmother.”

{¶ 8} Morrow contends that the trial court erred in finding that she could not seek visitation privileges with her son’s children under the provisions of R.C. 3109.11 because she was not a blood relative of the deceased parent, although she is related to the children by consanguinity.

{¶ 9} Voorhees argues that the legislature intended, under R.C. 3109.11, to treat relatives of the deceased parent differently from relatives of the living parent. Voorhees argues that if the legislature intended to include relatives by affinity in the statute, it would not have included the words “deceased parent” in the statute because the relatives of the deceased are related by affinity in every situation when the parties were married.

{¶ 10} The applicable statute that grants visitation to third parties is R.C. 3109.11, which states:

{¶ 11} “If either the father or mother of an unmarried minor child is deceased, the court of common pleas of the county in which the minor child resides may grant the parents and other relatives of the deceased father or mother reasonable companionship or visitation rights with respect to the minor child during the child’s minority if the parent or other relative files a complaint requesting reasonable companionship or visitation rights and if the court determines that the granting of the companionship or visitation rights is in the best interest of the minor child.” (Emphasis added.)

{¶ 12} The issue in this case is whether the paternal grandparents are considered relatives of the deceased mother and whether the legislature intended the paternal grandparents to have the right to seek visitation under R.C. 3109.11.

{¶ 13} Other districts in the state of Ohio have defined “relative” as a relationship through affinity or consanguinity. Goeller v. Lorence, Lorain App. No. 008883, 2006-Ohio-5807, 2006 WL 3159406, at ¶ 16. The Fourth District, following the logic of Goeller, also determined that “the term ‘relative’ * * * includes those per sons related by affinity.” McFall v. Watson, Vinton App. No. 667, 2008-Ohio-5205, 2008 WL 4456957, ¶ 16. Judge Rocco of the Eighth District has also weighed in on the definition of “relative,” stating that “the term ‘relative’ includes persons related by consanguinity and persons related by affinity” and that “(r)elationships by affinity are generally those created by marriage, for example, the relationship of father- or mother-in-law * * *.” In re LaPiana, Cuyahoga App. Nos. 93691 and 93692, 2010-Ohio-3606, 2010 WL 3042394, ¶ 78 (Rocco, P.J., dissenting on a separate issue).

{¶ 14} Other states have examined this issue and have come to the same conclusion as the state of Ohio. Indiana, in White v. State (2001), 756 N.E.2d 1057, 1061, declared, “The reasonable understanding of 'related to’ include(s) relatives by both consanguinity and affinity.” The state of Illinois determined that “a husband has the same relation by affinity to his wife’s blood relatives as she has to them by consanguinity.” In re Schmidt (1998), 298 Ill.App.3d 682, 691, 232 Ill.Dec. 938, 699 N.E.2d 1123. Louisiana also weighed in on relationships of affinity, and found that “[t]he doctrine of affinity grew out of the canonical maxim that the husband and wife are one. It is the relationship which arises, in consequence of marriage, between one spouse and the blood relatives of the other. Thus, the husband stands in the same degree of affinity to his wife’s blood relatives as she stands to them by consanguinity, and vice versa.” State v. Ardoin (2010), 35 So.3d 1065, 1068.

{¶ 15} In examining the language of R.C. 3109.11, we must also look at the intent of the legislature when they drafted the statute. In any situation in which children are involved, the legislature acts with the best interests of the child in mind. “By its plain language, R.C. 3109.11 is designed to serve the best interests of the child.” Goeller v. Lorence, Lorain App. No. 008883, 2006-Ohio-5807, 2006 WL 3159406, at ¶ 14. We believe the legislature recognized that in some situations, a child of the deceased mother may have developed stronger emotional ties with the father’s parents than with the deceased mother’s parents and that it would be in the child’s best interest to continue that relationship with visitation.

Ill

{¶ 16} Morrow’s assignment of error is sustained, and the judgment of the trial court is reversed. This case is remanded to the trial court to be determined consistent with the opinion of this court.

Judgment reversed and cause remanded.

Froelich, J., concurs separately. Grady, J., dissents.