{¶ 2} Mother and Defendant/Appellee, Michael C. Boyd, (hereinafter referred to as "Father") were married in July of 1994 and together they had three children.1 In January of 2000, their marriage was dissolved and a separation agreement was approved and confirmed. Under their separation agreement, Mother and Father agreed to designate Mother the residential parent and legal custodian of the children, while Father was granted companionship rights with the children.
{¶ 3} In February of 2000, Mother moved to Michigan after gaining court approval. Additionally, the record reflects numerous motions filed by both Mother and Father between 2000 and 2003, seeking redress for the failure of the other party to abide by the orders of the court regarding visitation and child support payments.
{¶ 4} In March of 2003, Grandparents and Heather Howard, the children's paternal aunt, separately moved to intervene. In their motion, Grandparents requested the trial court to appoint a Guardian Ad Litem, to assign a Court Appointed Special Advocates (C.A.S.A.) volunteer and involve the Seneca County Department of Job and Family Services, to order that the children be placed in counseling, and to order a set visitation schedule.
{¶ 5} In April of 2003, the magistrate granted Grandparents' motion to intervene and denied Howard's motion.
{¶ 6} In May of 2003, the magistrate ordered C.A.S.A. to complete a home investigation and an investigation of Mother and Father.
{¶ 7} In June of 2003, the magistrate granted Grandparents separate companionship rights with the children.
{¶ 8} In August of 2004, Grandparents moved to become the residential parents and legal custodians of the children.
{¶ 9} In September of 2004, Phyllis A. Boyd, the children's paternal grandmother, moved to intervene in the event Grandparents were named residential parents and legal custodians of the children. Phyllis later moved to amend her motion to request that she be named custodial parent of the children if neither Mother nor Father were named residential parent and legal custodian. Additionally, Father filed a separate motion to have himself, his current wife, and Phyllis be named custodial parents of the children. Also, Mother moved for the appointment of a Guardian Ad Litem. The trial court granted the motion for the appointment of a Guardian Ad Litem and appointed Ray Gittinger. Finally, an in camera interview of the children was conducted.
{¶ 10} On October 15, 2004, a hearing on the pending motions was held, which was continued until December 2, 2004. As a result of this first day of hearings, the magistrate found, among other things, that Phyllis' motion for leave to intervene was not in the best interests of the children.
{¶ 11} On October 19, 2004, Father filed a child custody residency affidavit required to be filed under R.C.
{¶ 12} On December 2, 2004, the hearing on the pending motions was held and was continued until January 10, 2005.
{¶ 13} On January 10, 2005, the trial court ordered that Mr. Gittinger was released from his duties as Guardian Ad Litem for the children, because he had no contact with the children since before the December 2, 2004 hearing. Additionally, the trial court heard arguments on the pending motions.
{¶ 14} On February 11, 2005, the magistrate issued its decision granting Grandparent's motion to become the residential parents and legal custodians of the children.
{¶ 15} On February 18, 2005, Mother filed her objections to the magistrate's decision. Additionally, the trial court issued an interim order, which found that the best interests of the children required immediate relief and ordered that the change in custody ordered by the Magistrate shall not be stayed, pending the consideration of Mother's objections.
{¶ 16} On November 30, 2005, the trial court denied Mother's objections and approved the Magistrate's February 2005 decision as an order of the court.
{¶ 17} It is from this judgment Mother appeals, presenting the following assignments of error for our review:
THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT BY GRANTING APPELLEE INTERVENOR'S (SIC.) MOTION TO GRANT THE APPELLEE INTERVENORS (SIC.) LEGAL CUSTODY OF APPELLANT'S MINOR CHILDREN AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO APPELLANT BY ALLOWING APPELLEES TO PROCEED AFTER OBJECTION TO THEIR FAILURE TO FILE AN AFFIDAVIT IN COMPLIANCE WITH SECTION3109.27 OF THE OHIO REVISED CODE.
THE TRIAL COURT ERRED IN DENYING THE REQUEST FOR A CONTINUANCE BY APPELLANT WHEN THE GUARDIAN AD LITEM FAILED TO APPEAR AND ADMITTING THE GUARDIAN'S REPORT.
{¶ 18} Due to the nature of Mother's assignments of error, we will review them out of order.
{¶ 20} R.C.
(A) Each party in a parenting proceeding, in the party's first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child's present address, the places where the child has lived within the last five years, and the name and present address of each person with whom the child has lived during that period. In this pleading or affidavit, each party also shall include all of the following information:
(1) Whether the party has participated as a party, a witness, or in any other capacity in any other litigation, in this or any other state, that concerned the allocation, between the parents of the same child, of parental rights and responsibilities for the care of the child and the designation of the residential parent and legal custodian of the child or that otherwise concerned the custody of the same child;
(2) Whether the party has information of any parenting proceeding concerning the child pending in a court of this or any other state;
(3) Whether the party knows of any person who is not a party to the proceeding and has physical custody of the child or claims to be a parent of the child who is designated the residential parent and legal custodian of the child or to have parenting time rights with respect to the child or to be a person other than a parent of the child who has custody or visitation rights with respect to the child;
(4) Whether the party previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child or previously has been determined, in a case in which a child has been adjudicated an abused child or a neglected child, to be the perpetrator of the abusive or neglectful act that was the basis of the adjudication.
(B)If the declaration under division (A)(1), (2), (3), or (4) of this section is in the affirmative, the court may require the declarant to give additional information under oath. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court's jurisdiction and the disposition of the case.
(C)Each party has a continuing duty to inform the court of any parenting proceeding concerning the child in this or any other state of which the party obtained information during this proceeding.
{¶ 21} The term "parenting proceeding" was defined as a proceeding "in which a parenting determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings." R.C.
{¶ 22} The purpose of the affidavit required under R.C.
{¶ 23} According to R.C.
{¶ 24} Upon our review of the record, we note that at the October 15, 2004 hearing, prior to hearing testimony, Mother's counsel moved to dismiss both Father's and Grandparent's motions for permanent custody, because each motion failed to comply with the requirements of R.C.
{¶ 25} The trial court proceeded to have Father and Grandparents testify under oath that they signed their motions for custody and that the motions were true and accurate to be test of their knowledge and ability. Further, the trial court noted that Mother was not prejudiced by the failure of Father or Grandparents to file an affidavit under 3109.27, because "she has been the children's residential parent and legal custodian[, so] she knows where the children have lived for the last five years" (October 15, 2004 tr. p. 19) and that it contacted the juvenile court in Seneca County, the Department of Job and Family Services in Kentwood, Michigan, and the Hancock County Department of Job and Family Services, but none would take the case. Finally, the trial court indicated that it was going to have Father and Grandparents complete a R.C.
{¶ 26} While we agree that Father and Grandparents should have filed a jurisdictional affidavit under R.C.
{¶ 27} Accordingly, Mother's second assignment of error is overruled.
{¶ 29} For simplicity, we start with the trial court's denial of Mother's request for a continuance. Our review of this issue begins by noting that the decision to grant or deny a continuance is within the sound discretion of the trial court. State v. Bryan,
{¶ 30} This Court has previously held that "[t]he review of a decision on a motion for continuance requires the appellate court to apply a balancing test, weighing the trial court's interest in controlling its own docket, including facilitating the efficient dispensation of justice, versus the potential prejudice to the moving party." Burton v.Burton,
{¶ 31} In the case sub judice, the Guardian Ad Litem failed to appear at the third day of hearings, in January of 2005. However, the Guardian Ad Litem's report and recommendation was prepared prior to the December 2004 hearing. Additionally, the Guardian Ad Litem was present for the first two days of trial and testified during the December 2004 hearing. During that hearing, the Guardian Ad Litem was cross-examined and subjected to recross-examination twice by Mother's counsel. Additionally, the Guardian Ad Litem testified and identified reports and evaluations, which served as the basis for his recommendations, and described the extent of his investigation.
{¶ 32} At the January 2005 hearing, all of the parties agreed that the Guardian Ad Litem failed to meet with any of the parties since the December 2004 hearing. The trial court noted that it "[did not] know what [the Guardian Ad Litem] has to contribute other than this (Sic.) opinion based on what he hears in court today. * * * [If] he had a contact with anybody since we were here the last time I would have thought it was important, but he hasn't had any contact with anybody." (Jan. 10, 2005 Trial Tr. p. 19-20).
{¶ 33} Given these facts, particularly the lengthy litigation, the lack of new information that the Guardian Ad Litem would have been able to provide, and Mother's opportunity at a prior hearing to cross-examine the Guardian Ad Litem,
we cannot find that the trial court abused its discretion in denying Mother's motion for a continuance.
{¶ 34} With respect to the admission of the Guardian Ad Litem's report and recommendation, it is well established that a trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice. Rigby v.Lake County (1991),
{¶ 35} At the January 2005 hearing, Grandparents moved for admission of the Guardian Ad Litem's report and recommendation dated October 15, 2004 into evidence. Mother's counsel objected, arguing that she wanted to inquire into whether the Guardian Ad Litem had done anything to further his duties. However, as noted above, the parties acknowledged that the Guardian Ad Litem had not met with the children after the December 2004 hearing. Additionally, Mother's counsel had the opportunity at the December 2004 hearing to cross-examine and recross-examine the Guardian Ad Litem about his report and recommendation. Therefore, we do not find that the trial court abused its discretion in admitting the Guardian Ad Litem's report and recommendation into evidence.
{¶ 36} Accordingly, Mother's third assignment of error is overruled.
{¶ 38} Trial courts are vested with broad discretion in determining the allocation of parental rights and responsibilities for the care of minor children. Miller v. Miller (1988),
{¶ 39} "This highly deferential standard of review rests on the premise that the trial judge is in the best position to determine the credibility of witnesses because he or she is able to observe their demeanor, gestures and attitude. * * *. This is especially true in a child custody case, since there may be much that is evident in the parties' demeanor and attitude that does not translate well to the record." Blaker v. Wilhelm, 6th Dist. No. WD-04-003,
{¶ 40} Child-custody disputes in Ohio fall within the purview of one of two statutes, R.C.
{¶ 41} Regardless of where the custody case originates, "it is well recognized that the right to raise a child is an `essential' and 'basic' civil right." In re Hayes (1997),
[A] court may not award custody to the nonparent "without first determining that a preponderance of the evidence shows that the parent abandoned the child; contractually relinquished custody of the child; that the parent has become totally incapable of supporting or caring for the child; or that an award of custody to the parent would be detrimental to the child."
In re Hockstok,
{¶ 42} Generally, the determination of unsuitability has been "a necessary first step in child custody proceedings between a natural parent and nonparent." Id. at 18. Specifically, the Ohio Supreme Court has held that an unsuitability determination is required under R.C.
{¶ 43} However, the Ohio Supreme Court has also held that an unsuitability finding is not always required when granting custody to a nonparent instead of either parent. Specifically, the Ohio Supreme Court has held that in a child custody dispute between parents and nonparents, originating from a divorce proceeding, R.C.
{¶ 44} Additionally, this Court has held that an unsuitability determination is required when awarding a child to a nonparent nonrelative. In re Dunn (1992),
{¶ 45} Nevertheless, this Court and the Ohio Supreme Court have never determined whether an unsuitability finding is necessary prior to awarding nonparents custody of a child in a situation similar to the facts currently before us. As noted above, in this case, Mother was originally designated the residential parent and legal custodian of the children, when Mother and Father were divorced in January of 2000, and still was residential parent and legal custodian, when nonparent relatives, Grandparents, moved to modify the original custody order to designate them the residential parents and legal custodians of the children.
{¶ 46} In making our decision, we are persuaded by the Ohio Supreme Court's consistent requirement that a trial court make an unsuitability finding prior to awarding custody of a child to a nonparent. In In rePerales, the Ohio Supreme Court noted Judge Ashburn's decision inClark v. Bayer (1877),
{¶ 47} Further, the Ohio Supreme Court discussed the importance of itsIn re Perales and Masitto decisions in In re Hockstock. The In reHockstock Court stated,
The important principle that harmonizes [In re] Perales and Masitto is that regardless of which could had jurisdiction, the juvenile or the domestic relations division of the court of common pleas, this court recognized the overriding importance of a trial court making a parental unsuitability determination on the record before awarding custody away from a natural parent to a nonparent. These two cases demonstrate the significance of the fundamental rights of natural parents in child custody cases between parents and nonparents.
In re Hockstock,
{¶ 48} Accordingly, we hold that when a nonparent moves to modify an original custody decree, arising out of a divorce proceeding which granted legal custody to a child's natural parent, the trial court shall not award a nonparent legal custody of the child or children until it has first determined that both parents are unsuitable under In rePerales.
{¶ 49} Applying our holding to the facts in the case sub judice, we find that the trial court failed to make the requisite finding of unsuitability as required by In re Perales. This Court has found that a trial court is not required to use the word "unsuitable" or some variation thereof in its findings in order to meet the requirements ofIn re Perales. In re Wright, 3d Dist. No. 4-01-20,
{¶ 50} Unlike the "best interest of the child" test enunciated in R.C.
{¶ 51} Here, the magistrate's decision provided, in paragraph 11:
Parents who are found by the court to be suitable parents have a paramount right to custody of their minor children. In re Perales (1977)
. However, the right of custody by the biological parents is not absolute. The Court "may commit the child to a relative of the child where the court finds that custody to neither parent is in the best interest of the child." Boyer v Boyer (1976) 46Ohio St.2d (Sic.) 83, 84. The Boyer Court further held, "The parents have a right to custody which transcends consideration of the child's best interest, is recognition that the child's right to a suitable custodian and parental rights, when not in harmony, are competing interests, requiring that one give way to the other." Id at 87. This Court finds that neither parent, based on the findings above, are suitable parents to have custody of these three children. 52 Ohio St.2d 89
(Feb. 11, 2005 Magistrate's Dec. p. 6). Reviewing the magistrate's decision, each of the "findings above" provides a finding that is termed either "in the best interest of the minor children" or "not in the best interest of the minor children." (Feb. 11, 2005 Magistrate's Dec. pp. 3-6). Because these findings appear to be applying the "best interests" test instead of the "unsuitability" test, we find that the trial court's findings are insufficient to satisfy this Court that a preponderance of the evidence showed that either parent was an unsuitable parent, as required by In re Perales.
{¶ 52} Accordingly, Mother's first assignment of error is sustained.
{¶ 53} Having found no error prejudicial to appellant herein, in the particulars assigned and argued in her second and third assignments of error, but having found error prejudicial to appellant, in the particulars assigned and argued in her first assignment of error, we affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion. Judgment Affirmed in Part,Reversed in Part, and Cause Remanded. BRYANT, P.J., concurs. CUPP, J.,concurs separately.
{¶ 54} CUPP, J., concurring separately. Although the trial court's intermediate factual findings leading to its conclusion, as noted in the opinion supra, did not utilize the proper standard for the issues involved in this case, it is also apparent, from the magistrate's recitation of the facts put into evidence, that there is sufficient evidence from which the trial court could, if it determined to do so, conclude that both parents are unsuitable to have the custody of the children.