IN RE BONFIELD.
No. 2001-0625
Supreme Court of Ohio
Submitted March 13, 2002—Decided December 13, 2002.
97 Ohio St.3d 387, 2002-Ohio-6660
MOYER, C.J.
APPEAL frоm the Court of Appeals for Hamilton County, Nos. C-000436 and C-000437. ON MOTION FOR RECONSIDERATION OR AMENDMENT.
{¶1} Appellants filed a motion for reconsideration or amendment pursuant to S.Ct.Prac.R. XI(2)(A)(4) after announcement of our decision and opinion in In re Bonfield, 96 Ohio St.3d 218, 2002-Ohio-4182, 773 N.E.2d 507. The motion requested the court to delete the following languagе from its opinion:
{¶2} “However, because second parent adoption is not available in Ohio, Shelly cannot adopt the children. Instead, if Shelly were to adopt the children herself, the effect would be to terminate Teri [Bonfield]‘s rights and responsibilities as an adoptive parent. See
{¶3} The motion for reconsideration or amendment is sustained, and the following opinion shall replace the opinion in In re Bonfield, 96 Ohio St.3d 218, 2002-Ohio-4182, 773 N.E.2d 507.
{¶5} Teri has also given birth to three children, a son born in 1996, and twins born in 1998, each of whom was conceived through anonymous artificial insemination. Shelly actively participated in the planning and births оf the children, assisted with Teri‘s artificial insemination, and was present throughout Teri‘s doctor‘s visits during the pregnancies and actual births. According to Teri and Shelly, since the children‘s respective adoptions and births Shelly has acted as their primary caregiver and has come to be seen by them as their parent in the same way as has Teri.
{¶6} Appellants’ description of their family is echoed by Dr. Leslie Swift, a licensed clinical psychologist, who testified that appellants operate jointly in cаring for the children, and have created a loving and committed home. Dr. Swift identified Shelly as the children‘s primary caretaker, as she is responsible for the day-to-day care of the children. Dr. Swift found that both Teri and Shelly function as parents, and that the children are bonded to each of them and “go to each for similar things and also for different needs.” Finally, Dr. Swift testified that should the children be separated from Shelly, their primary caregiver, it could be devastating to them.
{¶7} Notwithstanding her role as the primary сaregiver for their children, Shelly has no legally recognized rights with regard to Joseph, Jacob, Nicholas, Matthew, or Samantha. Lacking such legal rights, she does not have equal access to the children‘s medical or school records, and is unable to authorize medical care or obtain medical insurance coverage for the children.
{¶8} An option in some states would be for Shelly to pursue a “second parent adoption.” M. Jacobs, Micah Has One Mommy and One Legal Stranger:
{¶9} Concerned that Shelly‘s lack of legally recognized rights is contrary to the children‘s best intеrests both currently and in the future, appellants filed their Petition for Allocation of Parental Rights and Responsibilities in the Common Pleas Court of Hamilton County, Juvenile Division. They sought to “confirm their commitment that they will both continue to raise the children regardless of what happens to their relationship.” In addition to concerns about Shelly‘s status with respect to the children in the event that Teri and Shelly separate, appellants seek to secure Shelly‘s legal rights to the children in the event of Teri‘s deаth. For instance, if Teri were to die, Shelly‘s care and physical custody of the children could be interrupted for a time or even terminated, should a relative of Teri decide to petition the court for custody.
{¶10} Adopting the recommendation of the magistrate, the juvenile court found that it did not have jurisdiction to grant the petition because Shelly is not a parent within the meaning of
{¶11} Upon appeal of the trial court‘s order denying shared parenting, the court of appeals held that pursuant to
{¶12} The cause is now before this court upon the allowance of a discretionary appeal.
{¶13}
{¶14} “If at least one parent files a pleading or motion in accordance with division (G) of this section and a plan for shared parenting pursuant to that division and if a plan for shared parenting is in the best interest of the children and is aрproved by the court in accordance with division (D)(1) of this section, the court may allocate the parental rights and responsibilities for the care of the children to both parents and issue a shared parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the children in accordance with the approved plan for shared parenting.”
{¶15} The specific issue is whether Shelly is a “parent” for purposes of
{¶16}
{¶17} The legal concept of “shared parenting” is relatively new in Ohio law and refers to an agreement between parents regarding the care of their children that was previously termed “joint custody.” Ohio Legislative Service Commission, Analysis of 1990 Am.Sub.S.B. No. 3, at 20. In 1990, the General Assembly adopted recommendations of the Domestic Relations Task Force established by the 116th General Assembly to change “[c]hild custody and visitation laws [to] reflect a shared parenting concept where both divorcing parties remain important to their children‘s development.” Domestic Relations Task Force Report, 116th General Assembly, 1990, at 40.
{¶18} Am.Sub.S.B. No. 3 replaced references to “joint custody” in domestic relations-related statutes with “shared parenting.” Seе, e.g., former
{¶19} Appellants argue that the doctrine of in loco parentis applies to the definition of “parent” in
{¶20} “No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
{¶21} “* * *
{¶22} “(5) The offender is the other person‘s natural or adoptive parent, or stepparent, or guardian, custodian, or person in loco parentis.”
{¶23} Thus, in contrast to
{¶24} The court of appeals applied
{¶25} “As used in sections 3111.01 to 3111.85 of the Revised Code, ‘parent and child relationship’ means the legal relationship that exists between a child and the child‘s natural or adoptive parents and upon which those sections and any other рrovision of the Revised Code confer or impose rights, privileges, duties, and obligations. The ‘parent and child relationship’ includes the mother and child relationship and the father and child relationship.”
{¶27} Appellants argue that by its terms
{¶28} Since there is no definition of “parent” in
{¶29} Appellants argue that the domestic relations code contains other means by which parenthood is recognized beyond simply being a “natural or adoptive parent.” They point to
{¶30} Accordingly, appellants argue that a “psychological” or “second” parent should be treated as a parent under
{¶31} This four-part test has been used in other states to determine whether a psychological or second parent may be awarded custody. See V.C. v. M.J.B. (2000), 163 N.J. 200, 223, 748 A.2d 539 (test provides good framework for determining psychological parenthood in cases where petitioner has lived for a substantial period of time with child); In re Custody of H.S.H.-K. (1995), 193 Wis.2d 649, 658, 533 N.W.2d 419 (court may determine whether visitation is appropriate where nonparent petitioner first proves petitioner‘s parent-like relationship with child using four-part test, and a significant triggering event justifies state intervention in the child‘s relationship with biological or adoptive parent).
{¶32} Ohio has adopted a similar tеst in the context of a wrongful death action.
{¶33} The existence of such a test in a wrongful death action is not dispositive of the case at issue. A difference between Lawson and the case at issue
{¶34} Therefore, as
{¶35} Appellants argue that a biological or adoptive parent has the fundamental constitutional right, which may not be restricted by statute, to voluntarily enter into a court-apprоved shared parenting plan with a “psychological” or “second” parent. The fundamental due process right to make decisions concerning the care, custody, and control of one‘s children has been upheld in Troxel v. Granville (2000), 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49. However, this right does not embrace the right to have all decisions recognized or approved in law. In other words, although Teri‘s decision to co-parent her children with Shelly may be protected from interference by the state, Teri is not entitled to the benefit of statutes that are clearly inapplicable to such a familial arrangement.
{¶36} Although we have concluded that Shelly does not qualify as a parent pursuant to
{¶37}
{¶38} “(A) The juvenile court has exclusive original jurisdiction under the Revised Code as follows:
{¶39} “* * *
{¶40} “(2) Subject to division (V) of section 2301.03 of the Revised Code, to determine the custody of any child not a ward of another court of this state.”
{¶41} The court of appeals held that the juvenile court has exclusive original jurisdiction to determine the custody of the Bonfield children under
{¶42} The juvenile court has jurisdiction to determine the custody of any child not a ward of another court, even though the court has not first found the child to be delinquent, neglected, or dependent. In re Torok (1954), 161 Ohio St. 585, 53 O.O. 433, 120 N.E.2d 307, paragraphs one and two of the syllabus. This exclusive responsibility “to determine the custody of any child not a ward of
{¶43} It is well settled under Ohio law that a juvenile court may adjudicate custodial claims brought by the persons considered nonparents at law. For example, In re Perales (1977), 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047, concerned a child whose biological mother had placed her from infancy in the care of a nonparent. The child lived with the nonparent for two years. In the ensuing custody dispute between the parent and the nonparent, Perales relied on
{¶44} In contrast, this court hаs held that in a case where custody of children had already been determined by a domestic relations court in a divorce decree, and where the children are later determined to be abused, neglected, or dependent, the juvenile court has jurisdiction under
{¶45} However, the court in Poling limited its holding to cases where the juvenile court has obtained jurisdiction over a child under
{¶46} We next elucidate the standard the juvenile court should use in disposing of appellants’ petition. In Perales, we found that in the custody dispute between a parent and a nonparent, the juvenile court may not award custody to the nonparent without first making a finding of parental unsuitability. In re Perales, 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047, syllabus. This is because custody proceedings between a parent and a nonparent, unlike those between two parents, pose the possibility of terminating a parent‘s rights in favor of one who is not a parent. Id. at 96, 6 O.O.3d 293, 369 N.E.2d 1047.
{¶47} However, Perales involved an actual dispute between parties competing for custody. This is not the case here. In fact, appellants’ petition was unopposed at the trial lеvel and remains unopposed. In the petition, Teri voluntarily seeks to relinquish her right to sole custody of the children in favor of shared custodial rights with Shelly.
{¶48} Parents may waive their right to custody of their children and are bound by an agreement to do so. Masitto v. Masitto (1986), 22 Ohio St.3d 63, 65, 22 OBR 81, 488 N.E.2d 857. The parents’ agreement to grant custody to a third party is enforceable subject only to a judicial determination that the custodian is a proper person to assume the care, training, and education of the child. Id. at 65-66, 22 OBR 81, 488 N.E.2d 857.
{¶49} Upon remand the trial court shall exercise its discretion in giving due consideration to all known factors in determining what is in the best interest of the children. In re Adoption of Charles B. (1990), 50 Ohio St.3d 88, 552 N.E.2d 884, paragraph three of the syllabus.
{¶50} For the foregoing reasons, we hold that pursuant to its authority under
Judgment reversed in part, affirmed in part and cause remanded.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
COOK, J., concurs in part and dissents in part.
COOK, J., concurring in part and dissenting in part.
{¶51} The majority holds that “pursuant to its authority under
{¶52} As the majority correctly notes,
{¶53} “The juvenile court shall exercise its jurisdiction in child custody matters in accordance with sections 3109.04, 3109.21 to 3109.36, and 5103.20 to 5103.28 of the Revised Code.”
{¶55} Here, the appellants sought to invoke the juvenile court‘s
{¶56} Accordingly, I concur with the majority‘s judgment only insofar as it affirms at least in part the judgment of the court of appeals. As to the majority‘s reasoning and the remainder of the judgment, I respectfully dissent.
Susan J. Becker, urging reversal for amici curiae National Association of Social Workers, American Academy of Child and Adolescent Psychiatry, American Counseling Association, American Public Health Association, and Ohio Psychological Association.
Patricia M. Longue, urging reversal for amici curiae Lambda Legal Defense and Education Fund, Inc., National Center for Lesbian Rights, and Ohio Human Rights Bar Association.
David R. Langdon; Keating, Muething & Klekamp and Joseph L. Trаuth, urging affirmance for amici curiae the Honorable Thomas E. Brinkman Jr., Larry L. Flowers, Timothy J. Grendell, Jim Jordan, Linda Reidelbach, Twyla Roman, Michelle G. Schneider, and William J. Seitz III, Members of the Ohio General Assembly.
David R. Langdon, urging affirmance for amici curiae American Family Association of Ohio, Citizens for Community Values, Equal Rights Not Special Rights, Family First, and National Legal Foundation.