2018 Ohio 5399
Oh. Ct. App. 7th Dist. Monroe2018Background
- Parties: Father (Ian Scicluna Laiviera, Malta resident) and Mother (Barbara Hise, Ohio resident); child born 2008. 2010 West Virginia divorce decree incorporated a joint/shared parenting agreement: child to reside with mother in U.S.; father granted unlimited access in U.S. and 2–3 months annual visitation in Malta.
- In Dec. 2016 the child traveled to Malta for the annual visit and the father did not return the child as scheduled in Feb. 2017; Maltese courts issued temporary and later final orders finding wrongful retention and ordering return under the Hague Convention; child returned to mother.
- Mother filed in Ohio (UCCJEA) to adopt/modify the out-of-state custody order and sought sole custody, elimination of Malta visitation, and an annual two-week supervised U.S. visit for father. Ohio court assumed jurisdiction and held an April 2018 hearing without father present after denying his motions to appear by telephone/video.
- Trial court "adopted" the Malta decision, found "good cause" based on father’s Hague Convention violation, awarded mother sole custody, eliminated Malta parenting time, limited father to two weeks supervised visitation in the U.S., and set restricted electronic contacts.
- Father appealed, arguing denial of alternative means to participate (due process), misrepresentations at hearing, and that the trial court failed to apply the statutory "best interest" standard when modifying/terminating shared parenting.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Denial of request to appear by telephone/video | Court properly exercised discretion to deny remote participation | Denial violated due process; financial inability to travel and inability to retain counsel warranted alternative participation | Court abused discretion in denying alternative means; remanded for new hearing permitting live or remote testimony |
| Whether Ohio court could modify out-of-state custody order (jurisdiction) | Ohio has jurisdiction under UCCJEA; child’s home state is Ohio | Father did not contest Ohio jurisdiction | Ohio had jurisdiction; modification proceeded (not contested on appeal) |
| Use of Maltese/Hague rulings as basis for custody modification | Maltese order evidences wrongful retention and supports restricting father's access | Maltese Hague decision only addressed wrongful retention under Convention, not merits of custody; should not be dispositive for best-interest determination | Trial court relied on Malta order but was not bound by it; reliance contributed to need for remand to apply proper test |
| Standard applied to terminate shared parenting and reallocate custody | "Good cause" based on father's conduct (Hague violation) justified awarding sole custody and limiting visitation | Court should apply Ohio statutory best-interest factors in terminating shared parenting and reallocating custody | Trial court applied a "good cause" test instead of the statutory best-interest analysis; reversal and remand ordered for explicit best-interest findings |
Key Cases Cited
- City of Youngstown v. Traylor, 123 Ohio St.3d 132 (discusses due-process opportunity to be heard)
- Armstrong v. Manzo, 380 U.S. 545 (due process requires meaningful opportunity to be heard)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157 (defines abuse-of-discretion standards)
- Davis v. Flickinger, 77 Ohio St.3d 415 (custody and parenting-time decisions reviewed for abuse of discretion)
- McAuley v. Smith, 82 Ohio St.3d 393 (appellate court cannot add facts not in trial record)
- State ex rel. Butler v. Demis, 66 Ohio St.2d 123 (trial court's inherent power to regulate proceedings)