2018 Ohio 4781
Ohio Ct. App.2018Background
- Parties divorced in 2016; parenting plan named Katrina (mother) residential parent and Gary (father) had scheduled visitation. Child: G.B., born 2015.
- Beginning January 2017, Katrina alleged past sexual abuse by Gary of her older daughter J.C.; investigations and a forensic interview resulted in unsubstantiated findings and no criminal charges.
- Despite the investigations, Katrina intermittently withheld G.B. from Gary and later alleged Gary molested G.B.; a SANE exam showed no trauma but was inconclusive.
- Parties entered an agreed shared-parenting plan on June 16, 2017 with near-equal time; exchanges were handled by Gary’s parents.
- In October 2017 Katrina again refused exchanges; Gary sought law-enforcement assistance, contempt, and modification to be named residential parent. Temporary orders granted Gary custody and limited supervised visitation to Katrina.
- After a contested hearing and a Family Service Coordinator report recommending custody remain with Gary, the trial court found Katrina in contempt, named Gary residential parent, and limited Katrina to weekly two-hour supervised visits at CareFit. Katrina appealed.
Issues
| Issue | Plaintiff's Argument (Canada) | Defendant's Argument (Blankenship) | Held |
|---|---|---|---|
| Whether a change in circumstances justified modifying/terminating the prior custody/shared-parenting order | Trial court abused discretion; evidence of family social-media posts predated June 16, 2017 order and therefore could not be a new change | Katrina’s false abuse accusations, continued interference with parenting time, and later conduct support change (or, for termination of shared parenting, showing shared parenting not in child’s best interest) | Court affirmed: record supports change in circumstances and/or termination standard; no abuse of discretion |
| Whether two hours/week supervised visitation to Katrina was an abuse of discretion | Two hours is unduly restrictive; Katrina would comply with orders and refrain from disparaging Gary | Katrina and her family repeatedly disparaged Gary, continued to believe accusations despite unsubstantiated investigations, and repeatedly denied visitation; child bonded with father’s household | Court affirmed limited supervised visitation as supported by best-interest factors and credibility findings |
| Whether trial court erred by not appointing a guardian ad litem (GAL) | Court should have appointed GAL to protect the young child’s interests | Statute requires a GAL only if court interviews the child or upon motion; court did not interview child and Katrina did not renew a GAL request before hearing | Court affirmed: appointment discretionary and not required here; no abuse of discretion |
| Whether hearsay was improperly admitted and constituted plain error | Testimony (third-party statements, Facebook posts, phone-record testimony) was hearsay and plain error despite lack of contemporaneous objection | Evidence was offered for non-hearsay purposes (state of mind, pattern, rebuttal); trial judge presumed able to disregard inadmissible testimony and record shows no reliance | Court affirmed: no plain error shown; judge presumed to have disregarded inadmissible evidence |
Key Cases Cited
- Miller v. Miller, 37 Ohio St.3d 71 (1988) (trial court custody determinations warrant great deference on appeal)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard defined)
- Davis v. Flickinger, 77 Ohio St.3d 415 (1997) (weight to trial court credibility findings in custody cases)
- Fisher v. Hasenjager, 116 Ohio St.3d 53 (2007) (statutory two-step analysis for custody modification under R.C. 3109.04)
- Masters v. Masters, 69 Ohio St.3d 83 (1994) (standard for reversing custody decisions)
- Beekman v. Beekman, 96 Ohio App.3d 783 (1994) (false sexual abuse accusations can constitute a change in circumstances)