584 N.E.2d 41 | Ohio Ct. App. | 1990
Lead Opinion
Plaintiff-appellant, Vicki Seibert, and defendant-appellee, Jeffrey B. Seibert, were married on February 11, 1984. One child, Brian Seibert, was born issue of the marriage on July 9, 1984. Appellant filed a complaint for divorce on July 15, 1988, to which appellee filed an answer and counterclaim.
The parties reached an agreement on all issues regarding the division of marital property and the allocation of marital debts, leaving the question of child custody as the sole remaining issue for the court's determination.
Following a March 13, 1989 evidentiary hearing on the issue of child custody, the Clermont County Court of Common Pleas, Domestic Relations Division, issued a decision dated April 3, 1989, in which it awarded custody of *344 the child to appellee. The court's custody decision was incorporated into its final divorce decree which appellant now appeals.
Appellant submits two assignments of error for our review which read, as follows:
First Assignment of Error
"The trial court abused its discretion by awarding custody of the parties' minor child to the defendant-appellee when all the evidence establishes that both parties are suitable custodians and plaintiff-appellant is the primary caretaker of the child."
Second Assignment of Error
"The trial court abused its discretion by making its custody order without consideration of all factors set forth in Ohio Rev. Code §
Combined, appellant's two assignments of error claim that the trial court abused its discretion in its custody order. In support of her position, appellant asserts that the trial court did not strongly consider the role of the child's primary caretaker, failed to consider all relevant statutory factors in R.C.
It is indisputably clear from the record that appellant fulfilled the role of the child's primary caretaker. By mutual agreement, appellant quit her job and devoted her full attention to domestic and child care responsibilities while appellee worked long hours in his career as an insurance salesman and sales manager. The record further reflects that the minor child developed a strong sibling relationship with appellant's daughter.
The primary concern in a child custody case is the child's best interest. Miller v. Miller (1988),
"(1) The wishes of the child's parents regarding his custody;
"(2) The wishes of the child regarding his custody if he is eleven years of age or older;
"(3) The child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest; *345
"(4) The child's adjustment to his home, school, and community;
"(5) The mental and physical health of all persons involved in the situation."
R.C.
The trial court did consider appellant's role as the child's primary caretaker. The court noted, however, that even though appellant had assumed primary responsibility for the child's care, "* * * the other factors considered by this Court outweigh the mother's being the primary caretaker of this child."
While we cannot say that the court did not consider the primary caretaker factor in its custody determination, it is apparent that the court attached little, if any, importance to it in light of the other factors. In evaluating the primary caretaker factor, the court did not consider appellant's role as the primary caretaker of a child of tender years. At common law, the mother's preferred privilege to nurture and care for children was based upon the perception that the best interest of a child of tender years was ordinarily served when custody was granted to the mother. See, e.g., Clark v. Bayer (1877),
Some courts have interpreted the best interest standard of R.C.
Although the court stated in Maxwell, supra, at 304, 8 OBR at 411,
R.C.
Appellant's other arguments concern the child's sibling relationship with appellant's daughter and the trial court's reliance on what appellant refers to as "future" factors and circumstances in rendering its custody order.
The record reflects that the child had developed a very close sibling relationship with appellant's daughter from a previous marriage. A child's interaction and interrelationship with siblings is a relevant factor for determining the child's best interest in a custody dispute. R.C.
Appellant's assertion that the trial court relied on "future" factors focuses on the testimony of Dr. Ronald Baum, a clinical psychologist who examined both parties as well as the minor child. Baum was concerned with appellant's "instability" caused by her having to relocate and find a job with limited employment qualifications. Baum also noted that appellant's instability resulted from the loss of emotional and financial support from appellee and her taking prescription medication for a "nervous condition." Although Baum testified that appellant was a well-suited parent and was not unfit, he did not recommend that custody be awarded to appellant because he was not sure if she would be able to provide the stability necessary in a custodial parent.
The conclusions which the trial court drew from Dr. Baum's testimony ignores the fact that appellant's financial and emotional instability stem in part from her relationship with appellee and her reliance upon him to provide for her financial well-being. In any event, it is clear that Baum's recommendations focused upon future possibilities rather than present factors. A custody award based on such future possibilities is contrary to the purpose of R.C.
We accordingly conclude that the trial court's reliance upon possible future circumstances coupled with its failure to consider the child's tender years render the custody award an abuse of discretion. The assignments of error are sustained and the case is remanded for further proceedings regarding the issue of child custody.
Judgment reversedand cause remanded.
KOEHLER, J., concurs.
HENDRICKSON, J., dissents.
Dissenting Opinion
I do not agree with the application of the so-called "tender years doctrine" to child custody cases. In fact, I agree with the comments of Judge Young which are contained in his dissent in Berry v. Berry (Mar. 12, 1990), Clermont CA88-11-081, unreported, 1990 WL 25703. Furthermore, as I am unable to *348 find that there is an abuse of discretion in the award of custody to appellee, the mere fact that it seems more logical to award custody to appellant does not justify reversal of the decision of the trial court.