96 Ohio St. 3d 218 | Ohio | 2002
Lead Opinion
{¶ 1} Appellants, Teri J. Bonfield and Shelly M. Zachritz, have lived together since 1987 as partners in a same-sex relationship. During that time, Teri has adopted two children, Joseph, born in 1993, and Jacob, born in 1995. Shelly participated equally with Teri in the decision to adopt the boys.
{¶ 2} 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 of 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.
{¶ 3} Appellants’ description of their family is echoed by Dr. Leslie Swift, a licensed clinical psychologist, who testified that appellants operate jointly in caring 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.
{¶ 4} Notwithstanding her role as the primary caregiver 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.
{¶ 6} Concerned that Shelly’s lack of legally recognized rights is contrary to the children’s best interests 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 death. 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.
{¶ 7} 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 R.C. 3109.04. The record reveals that the trial court questioned why appellants did not apply for joint custody, since custody is a much broader term than shared parenting and “the award of joint custody does not divest any party of their [own] custody.” The trial court suggested that the better approach would be a shared custody arrangement and declined to “circumvent the laws of Ohio by torturing the shared parenting agreement [law] where there is no parentage.” The court stated that custody of the children in a shared custody arrangement “would not be a fiction [but] a reality, [whereas] parenting is a bit of fiction in this situation.” The court then invited appellants to petition for a joint custodial arrangement, without reference to “shared parenting.” The record does not indicate that appellants acted upon the advice offered by the trial court.
{¶ 8} Upon appeal of the trial court order denying shared parenting, the court of appeals held that pursuant to R.C. 2151.23(A)(2), the juvenile court has
{¶ 9} The cause is now before this court upon the allowance of a discretionary appeal.
{¶ 10} R.C. 3109.04(A)(2) provides: ■
{¶ 11} “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 approved 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.”
{¶ 12} The specific issue is whether Shelly is a “parent” for purposes of R.C. 3109.04(A)(2).
Analysis of R.C. 3109.04(A)(2)
{¶ 13} R.C. 3109.04(A)(2) provides that a court may, upon determining that a proposed shared parenting plan is in the best interest of the children, allocate parental rights and responsibilities for the care of children to both “parents.” “Parent” is not defined in this section.
{¶ 14} 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 “[cjhild custody and visitation laws [to] reflect a shared parenting concept where both divorcing parties remain important to them children’s development.” Domestic Relations Task Force Report, 116th General Assembly, 1990, at 40.
{¶ 15} Am.Sub.S.B. No. 3 replaced references to “joint custody” in domestic-relations-related statutes with “shared parenting.” See, e.g., former R.C.
{¶ 16} Appellants argue that the doctrine of in loco parentis applies to the definition of “parent” in R.C. 3109.04(A)(2), and urge the court to find that Shelly stands in loco parentis to Teri’s children for purposes of that statute. They rely on State v. Noggle, which held that a “person in loco parentis has assumed the same duties as a guardian or custodian, only not through a legal proceeding.” State v. Noggle (1993), 67 Ohio St.3d 31, 33, 615 N.E.2d 1040. However, the court’s determination in Noggle was based on an analysis of R.C. 2907.03(A)(5), which specifically provides:
{¶ 17} “No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
{¶ 18} “* * *
{¶ 19} “(5) The offender is the other person’s natural or adoptive parent, or stepparent, or guardian, custodian, or person in loco parentis.”
{¶ 20} Thus, in contrast to R.C. 3109.04(A)(2), which uses only the word “parent” in the context of a shared parenting agreement, R.C. 2907.03(A)(5) expressly includes a person in loco parentis in defining a sexual offender. The General Assembly could have provided juvenile courts with the authority to allocate parental rights and responsibilities not only to parents, but also to guardians, custodians, and others who stand in loco parentis. That the statute refers to “parent” reflects legislative intent to exclude from the benefits of R.C. 3109.04 guardians or custodians in loco parentis.
{¶ 21} The court of appeals applied R.C. 3111.01(A) to 3109.04(A)(2), finding that Shelly is not a “parent” within the meaning of R.C. 3111.01(A). R.C. 3111.01(A) provides:
{¶ 22} “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 provision 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.”
{¶24} Appellants argue that by its terms R.C. 3111.01(A) applies only to “sections 3111.01 to 3111.85 of the Revised Code.” Therefore, it applies only for purposes of the Parentage Act, R.C. Chapter 3111, and should not be used to define the term “parent” in R.C. 3109.04. We disagree.
{¶ 25} Since there is no definition of “parent” in R.C. 3109.04, it is appropriate to search related sections of the Revised Code for a definition. A plain reading of R.C. 3111.01 indicates that there are three ways a “parent and child relationship” can be established: by natural parenthood, by adoption, or by other legal means in the Revised Code that confer or impose rights, privileges, and duties upon certain individuals.
{¶ 26} 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 R.C. 3111.95(A), which accords the consenting husband of a woman inseminated through nonspousal artificial insemination the status of father of the child so conceived, even though the husband has no natural or adoptive relationship to the child. They also observe that R.C. 3111.95(B) provides that a sperm donor for a nonspousal artificial insemination “shall not be treated in law or regarded as the natural father” of any child resulting from such a procedure, despite having a biological relationship with the child.
{¶ 27} Accordingly, appellants argue that a “psychological” or “second” parent should be treated as a parent under R.C. 3109.04 for purposes of entering a shared parenting agreement. Appellants advocate a four-part test to determine whether a person is a “psychological” or “second” parent. Under this test, the court considers (1) whether the legal parent consents to and fosters the relationship between the “psychological” or “second” parent and the child, (2) whether the “psychological” or “second” parent has lived with the child, (3) whether the “psychological” or “second” parent performs parental functions for the child to a significant degree, and (4) whether a parent-child bond has been forged between the “second” parent and the child.
{¶ 28} 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).
{¶ 30} 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 is the absence of a statutory definition of “parent” in R.C. 2125.02, and the definition of “parent and child relationship” in R.C. 3111.01(A). Additionally, in Lawson, we emphasized that there is a significant distinction between the wrongful death action at issue and a dispute between parties competing for custody or the privileges and obligations of parenthood with respect to the child. Id., 42 Ohio St.3d at 72, 536 N.E.2d 1167. Moreover, R.C. 2125.02 is a remedial law and must be construed to compensate those who have been deprived of a relationship. Id. at 70, 536 N.E.2d 1167. In contrast, R.C. 3109.04(A)(2) focuses on the best interests of the child. Finally, in Lawson, prior to the child’s death, the person claiming to be the child’s parent had been awarded legal custody of the child. Id. at 71, 536 N.E.2d 1167.
{¶ 31} Therefore, as R.C. 3109.04 specifically uses the term “parent” and this term is defined in R.C. 3111.01, we find it inappropriate to adopt appellants’ four-part test to broaden the narrow class of persons who are statutorily defined as parents for purposes of entering a shared parenting agreement.
{¶ 32} 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-approved 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.
{¶ 34} R.C. 2151.23(A)(2) provides:
{¶ 35} “(A) The juvenile court has exclusive original jurisdiction under the Revised Code as follows:
{¶ 36} “* * *
{¶ 37} “(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.”
{¶ 38} The court of appeals held that the juvenile court has exclusive original jurisdiction to determine the custody of the Bonfield children under R.C. 2151.23(A)(2), but that the court must exercise this jurisdiction in accordance with R.C. 3109.04. R.C. 2151.23(F)(1). The court concluded that R.C. 3109.04 limits the juvenile court’s jurisdiction in allocating parental rights and responsibilities to “parents,” and that Shelly is not a parent.
{¶ 39} 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 another court” of this state cannot be avoided merely because the petitioner is not a “parent” under R.C. 3109.04.
{¶ 40} 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
{¶ 41} In contrast, this court has 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 R.C. 2151.23(A)(2) to make a custody determination, but must do so in accordance with R.C. 3109.04. In re Poling (1992), 64 Ohio St.3d 211, 594 N.E.2d 589, paragraph two of the syllabus.
{¶ 42} However, the court in Poling limited its holding to cases where the juvenile court has obtained jurisdiction over a child under R.C. 2151.353 on the basis that the child is abused, neglected, or dependent. The court did not consider whether all custody cases arising under R.C. 2151.23(A)(2) must be decided under R.C. 3109.04, nor could such an interpretation of Poling be reconciled with Ohio’s long-standing precedent that a juvenile court has jurisdiction to determine custody claims brought by nonparents. Therefore, we distinguish Poling and hold that the juvenile court has jurisdiction to determine the custody of the Bonfield children pursuant to R.C. 2151.23(A)(2) without reference to R.C. 3109.04.
{¶ 43} 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.
{¶ 44} 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 level 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.
{¶ 45} 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
{¶ 46} 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.
{¶ 47} For the foregoing reasons, we hold that pursuant to its authority under R.C. 2151.23(A)(2), the juvenile court may determine whether a shared custody agreement between Teri and Shelly is in the best interests of the children. Accordingly, we affirm the judgment of the court of appeals in part and reverse it in part, and remand to the juvenile court for proceedings consistent with this opinion.
Judgment reversed in part, affirmed in part and cause remanded.
. {ía} R.C. 2151.23(F)(1) provides:
{¶ b} “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.”
Concurrence in Part
concurring in part and dissenting in part.
{¶ 50} The majority holds that “pursuant to its authority under R.C. 2151.23(A)(2), the juvenile court may determine whether a shared custody agreement between Teri and Shelly is in the best interests of the children.” In deciding this, the majority states that “the juvenile court has jurisdiction to determine the custody of the Bonfield children pursuant to R.C. 2151.23(A)(2) without reference to R.C. 3109.0k” (Emphasis added.) I cannot agree.
{¶ 51} As the majority correctly notes, R.C. 2151.23(A)(2) provides that the juvenile court has exclusive original jurisdiction under the Revised Code “to determine the custody of any child not a ward of another court of this state.” This statutory provision merely empowers a juvenile court to entertain custody determination actions; it does not, however, provide the enabling mechanism by which such actions come before the juvenile court. Instead, R.C. 2151.23(F)(1) dictates how a party invokes the juvenile court’s R.C. 2151.23(A)(2) jurisdiction:
{¶ 52} “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.”
{¶ 53} Thus, it is R.C. 2151.23(F)(1), not (A)(2), that targets procedures by which a party can properly invoke the juvenile court’s jurisdiction. Under the majority’s reading of the statutory scheme, anyone could file for custody of any child simply by filing an “R.C. 2151.23(A)(2) motion.” Yet, the Revised Code generally limits the consideration of issues of custody/parenting of children to (1) circumstances of abuse, dependency, or neglect, see, generally, R.C. Chapter 2151, and (2) circumstances surrounding changes in the legal relationship of parents, such as divorce, legal separation, or annulment, R.C. 3109.04(A). By legislative choice, there must be a statutory trigger to invoke R.C. 2151.23(A)(2) jurisdiction.
{¶ 54} Here, the appellants sought to invoke the juvenile court’s R.C. 2151.23(A) jurisdiction by way of R.C. 3109.04. Although this statute is a proper vehicle by which a party can invoke the juvenile court’s jurisdiction, the party must be a parent of a minor child from a marriage. R.C. 3109.04(A) provides that “in any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child, * * * the court shall allocate the parental rights and responsibilities for the care of the minor children of the marriage.” (Emphasis added.) The statute then goes on to provide for ways in which the court may allocate parental rights and responsibilities. In this case, the R.C. 3109.04(A) marriage requirement forecloses reaching determinations under the remaining portions of R.C. 3109.04, such as whether Shelly is a “parent” under R.C. 3109.04(G). Because the General Assembly does not permit same-sex marriages, see R.C. 3101.01, Teri and Shelly are not married, the children are not
{¶ 55} 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.
Concurrence Opinion
concurring.
{¶ 48} Terms of art change. What used to be known as joint custody is now known as shared parenting. Whatever the label, custody is still at the heart of what Teri Bonfield and Shelley Zachritz want the court to recognize and what they want to see endure. With an award of custody comes an acceptance of the responsibility for the care and direct supervision of children. Custody connotes more than a bond, it connotes presence.
{¶49} The General Assembly’s shift in terminology from joint custody to shared parenting was never meant to make custody of children exclusive to what are considered traditional parents. As the majority points out, R.C. 2151.23(A)(2) sees to that. Ohio’s custody laws allow for the legal recognition of an adult’s commitment to a child, and that adult’s right and responsibility to continue that commitment. What we call that adult is not important. What her children call her is.
