Masitto v. Masitto

488 N.E.2d 857, 22 Ohio St. 3d 63, 22 Ohio B. 81, 1986 Ohio LEXIS 552

• Court: Ohio Supreme Court
• Decided: February 5, 1986
• Docket: No. 85-241
• Status: Published

Opinions

Per Curiam.

The sole issue before this court is whether it is contrary to law for a trial court to proceed under the “best interest of the child” test enunciated in R.C. 3109.04 when the parent requesting a change in custody has previously consented to the appointment of the child’s grandparents as her guardians. The appellate court determined that the “suitability” test enunciated in In re Perales (1977), 52 Ohio St. 2d 89 [6 O.O.3d 293], was the proper standard which the trial court must apply in an R.C. 2151.23(A)(2) proceeding. For the following reasons, we must reverse the appellate court and uphold the trial court’s decision.

The general rule in Ohio regarding original custody awards in disputes between a parent and a non-parent is that “parents who are ‘suitable’ persons have a ‘paramount’ right to the custody of their minor children unless they forfeit that right by contract, abandonment, or by becoming totally unable to care for and support those children.” In re Perales, supra, at 97. (Footnote omitted.) 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). We must determine the effect of a parent consenting both to his child’s status as a ward and to a divorce decree which, in essence, incorporated the guardianship appointment, on the trial court’s choice of the proper test: parent’s suitability versus child’s best interest.

Under the law pronounced in Perales, supra, if a parent contracts away custody rights of his minor child, he may be considered to have forfeited his right to custody of such child, and may accordingly be found to be unsuitable for custody. Parents may undoubtedly waive their right to custody of their children and are bound by an agreement to do so. Rowe v. Rowe (App. 1950), 58 Ohio Law Abs. 497, 499 [44 O.O. 224], The parents’ agreement that custody of their child should be given to a third person is enforceable “subject only to judicial determination that the custodian was in every way a proper person to have the care, training and education of the child. * * *” Id., citing Clark v. Bayer (1877), 32 Ohio St. 299, paragraph two of the syllabus. Such a determination of the grandparents’ fitness for custody was made by the trial court here, and will be upheld if the father did indeed relinquish his right to custody.

Whether or not a parent relinquishes rights to custody is a question of fact which, once determined, will be upheld on appeal if there is some reliable, credible evidence to support the finding. See C. E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279 [8 O.O.3d 261]. The trial court made such a determination here, and we consider the evidence of the father’s agreement signed February 8, 1978, and his conduct, taken as a whole, as reliable, credible evidence in support thereof. Not only did the father here specifically consent to having his child be under the care of the grandparents from September 1976 until the present custody dispute, but he also consented in the agreement to their being appointed her legal guardians, and later consented to a divorce decree which in essence incorporated his agreement to have Stacy under the care of the Noses. We must agree with one court’s reasoning that “[w]here a person accepts the custody of a child by virtue of an agreement with the parents of the child, the contract may be such, and the care and support may be furnished for such a length of time and under such circumstances as to estop the parents from denying that they have relinquished or forfeited their natural right to the custody of the child.” Garcia v. Cardarelli (App. 1929), 7 Ohio Law Abs. 262, 263. See, also, In re Tilton (1954), 161 Ohio St. 571 [53 O.O. 427], paragraph three of the syllabus (minor mother who surrenders child to blood relatives, and takes no step to disaffirm such agreement for over four years after reaching majority, may be found by the court to have affirmed the agreement).

The appellate court reasoned that this father did not totally relinquish his custodial rights, and could thereby still be considered “suitable,” because he paid support and exercised his visitation rights. Paying support and exercising visitation rights (granted as a matter of course to noncustodial parents in divorce decrees) are not determinative of relinquishment of custodial rights. Under all the facts here, we hold that by consenting to the guardianship and divorce decree, the father forfeited his natural rights to custody of his daughter, making the child’s best interest the appropriate test for a change in custody.

An additional factor to consider here is that the guardianship status of the minor child could not have existed unless the probate court found that the “parents are unsuitable persons to have the custody and tuition of such minor, or whose interests, in the opinion of the court, will be promoted thereby.” R.C. 2111.06. This statute also provides that the guardian “shall have the custody and provide for the maintenance [and education] of the ward * * Therefore, the guardianship statute seemingly provides that the original custody award and any modification thereof would have to proceed under the “best interest of the child” test mandated by R.C. 3109.04(B). Since the trial court proceeded under that section, and the factors enumerated thereby, i.e., integration of the child into custodian’s family, detriment of change not outweighed, etc., we uphold the trial court’s actions.³

It is our conclusion, upon a review of all the facts and circumstances here, that Louis Masitto’s consent to the guardianship appointment, and to the divorce decree essentially incorporating such, estops him from claiming he did not relinquish his natural rights to custody. All of such acts and circumstances reasonably serve as an original award of custody to the guardian, modification of which requires satisfaction of the child’s best interest. Since the child’s best interest has been found to be preserved by the Noses’ retaining custody, there is no question of fact remaining to be determined on which to order a remand.

Therefore, the judgment of the court of appeals is reversed, and the judgment of the trial court is reinstated.

Judgment reversed.

Sweeney, Locher, Holmes and Wright, JJ., concur. Celebrezze, C.J., and C. Brown, J., dissent with opinion. Douglas, J., dissents.

3 Although the probate court may have exclusive jurisdiction to appoint and remove guardians under R.C. 2101.24(D) and In re Clendenning (1945), 145 Ohio St. 82 [30 O.O. 301], paragraph one of the syllabus, the common pleas court, division of domestic relations, is given general jurisdiction of all domestic matters by R.C. 3105.011. Since appellee’s motion before the domestic court was for change of custody, such court had general subject matter jurisdiction, and thus had authority to determine its own jurisdiction when that issue was raised below. State, ex rel. Smith, v. Court (1982), 70 Ohio St. 2d 213 [24 O.O.3d 320], Since neither party appealed the domestic court’s finding that it had jurisdiction, and since this action is not one for removal of guardian, any error as to jurisdiction has been waived under R.C. 2505.21.