State ex rel. M.L.G. v. MontgomeryState ex rel. M.L.G. v. Montgomery
Rendered on August 9, 2012
Massucci & Kline LLC, LeeAnn M. Massucci and Kenneth R. Kline, for M.L.G.
Ron O‘Brien, Prosecuting Attorney, and A. Paul Thies, for Robert G. Montgomery and Franklin County Probate Court.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE‘S DECISION AND APPEAL FROM THE FRANKLIN COUNTY COURT OF COMMON PLEAS, DIVISION OF DOMESTIC RELATIONS, JUVENILE BRANCH
CONNOR, J.
{¶ 1} In these consolidated appeals, we address two related actions. Case No. 12AP-13 involves an original action in which objections have been filed to the magistrate‘s decision denying a request for writs оf mandamus and prohibition arising out of a final decree of adoption issued by the Franklin County Probate Court (“probate court“). Case No. 12AP-401 involves an appeal from a judgment entry issued by the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch (“juvenile court“), granting shared custody to a nonparent. For the reasons that follow, we sustain the objections but otherwise adopt the magistrate‘s findings of fact and conclusions of law, except as to the conclusion that the juvenile court had jurisdiction to decide the custody issue, and we further remand the judgment of the juvenile court with instructions to dismiss the action.
{¶ 2} In case No. 12AP-13, relator, M.L.G., filed an original action requesting this court to issue a writ of prohibition ordering respondent, the Honorable Robert G. Montgomery (“Judge Montgomery“), a judge in the Franklin County Probate Court, to cease finalization of the adoption of the minor child, M.E.G., and to issue a writ of mandamus ordering Judge Montgomery to void the adoption of M.E.G. by intervenor-respondent, M.B.H. (formerly M.E.G.‘s stepfather). This court referred this matter to a magistrate pursuant to
{¶ 3} In case No. 12AP-401, respondent-appellant, J.L.H., appeals from a judgment entry of the juvenile court, denying her motion to dismiss petitioner-appellee M.L.G.‘s complaint for custody, as well as her motion to vacate visitation orders, and granting M.L.G. shared legal custody of M.E.G.
{¶ 4} M.L.G. and J.L.H. were a same-sex couple who began a long-term relationship in approximately 1998. The two women formalized their relationship by attending pre-wedding counseling and entering into a “holy union” through a ceremony attended by their friends and relatives in September 1999. In October 1999, they executed a “Marital Commitment Agreement.” They also executed wills in which each woman left her property to the other, rather than their next of kin.
{¶ 5} The parties had discussions about beginning a family and decided J.L.H. would get pregnant first because she was older. The parties selected a private donor and J.L.H. was artificially inseminated. J.L.H. gave birth to M.E.G. on July 22, 2005.
{¶ 6} J.L.H. and M.L.G. lived together with M.E.G. for the first three years of the minor child‘s life. The parties did not enter into a written agreement regarding custody of M.E.G. In May 2008, M.L.G. and J.L.H. ended their relationship. J.L.H. and M.E.G. moved out of the house they had all shared in Toledo, Ohio and relocated to the Columbus area, while M.L.G. remained in the Toledo area.
{¶ 7} For approximately one year after the termination of the relationship, the parties continued with an informal arrangement regarding M.E.G. However, in August 2009, J.L.H. severed M.L.G.‘s contact and communication with M.E.G. On August 28, 2009, M.L.G. filed a complaint for custody of M.E.G. in the juvenile court. The court ordered M.L.G. to have visitation with M.E.G. pending disposition of the custody action.
{¶ 8} On November 13, 2009, J.L.H. married M.B.H. On July 1, 2010, M.B.H. filed a petition in the probate court to adopt M.E.G.
{¶ 9} On September 14, 2010, the custody trial in this matter began in the juvenile court and spanned approximately ten non-consecutive days, with testimony finally
{¶ 10} On January 6, 2011, a final decree of adoption was issued by the probate court, which finalized the adoption of M.E.G. by M.B.H. On February 14, 2011, J.L.H. filed a motion to dismiss M.L.G.‘s petition for custody on the grounds that the final decree of adoption divested the juvenile cоurt of jurisdiction. Although approximately two months had passed since the conclusion of the custody trial, the magistrate had not yet issued a decision on the custody issue at that time.
{¶ 11} On September 26, 2011, the juvenile court magistrate issued a judgment entry denying J.L.H.‘s motion to dismiss and motion to vacate the visitation order. The juvenile court magistrate also granted M.L.G. shared legal custody of M.E.G. Specifically, the juvenile court magistrate determined M.B.H‘s adoption of M.E.G. did not divest the juvenile court of jurisdiction to determine custody of M.E.G. The juvenile court magistrate also found J.L.H. had contractually, through her words and actions, relinquished custody оf M.E.G. to M.L.G. and, furthermore, it was in the best interest of M.E.G. to order shared custody between J.L.H. and M.L.G.
{¶ 12} On October 11, 2011, J.L.H. filed objections to the juvenile court magistrate‘s decision. A hearing was held before the juvenile court judge on the objections on November 15, 2011.
{¶ 13} On January 4, 2012, M.L.G. filed her complaint for writs of prohibition and mandamus in this court, claiming the probate court is without jurisdiction to finalize the adoption of M.E.G. by M.B.H. Specifically, M.L.G. requested the issuance of a writ of prohibition prohibiting Judge Montgomery and the probate court from further finalizing the adoption of M.E.G., and the issuance of a writ of mandamus ordering Judge Montgomery and the probatе court to immediately void the adoption of M.E.G. by M.B.H.
{¶ 14} On January 27, 2012, Judge Montgomery filed a motion to dismiss the complaint for the writs, arguing, inter alia, that M.L.G. lacked standing to bring the complaint because she is not a “parent” to M.E.G., and that M.L.G. is not entitled to the writs because she cannot establish a clear legal right to the extraordinary relief requested, the Judge Montgomery does not have a duty to perform the requested acts, and M.L.G. has or had adequate remedies at law.
{¶ 16} On April 9, 2012, J.L.H. and M.B.H. filed objections to the decision issued by the court of appeals magistrate. Specifically, J.L.H. and M.B.H. objected to the magistrate‘s determination that the juvenile court has jurisdiction to consider custody/visitation issues between the parties and that the proceedings in the probate court do not affect the custody matter in the juvenile court. M.L.G. filed a memorandum contra the objections and also asks this court to reconsider the appellate magistrate‘s denial of the writs of prohibition and mandamus.
{¶ 17} On April 26, 2012, the juvenile court, aftеr conducting a de novo review of the juvenile magistrate‘s findings and rulings, overruled J.L.H.‘s objections to the juvenile magistrate‘s decision, finding: (1) because M.L.G. is not and cannot be a “parent,” the probate court was not required to refrain from proceedings with the adoption; (2) the juvenile court was not divested of jurisdiction by the probate court‘s exclusive jurisdiction over adoption matters, as the adoption proceedings did not affect the status of the custody matter in the juvenile court; (3) there was reliable, credible evidence presented to demonstrate J.L.H. intended to relinquish a portion of her custоdial rights to M.L.G.; and (4) it is in M.E.G.‘s best interest to order shared custody.
{¶ 18} On May 3, 2012, J.L.H. filed a timely notice of appeal challenging the juvenile court‘s determination and raising two assignments of error for our review:
- The juvenile court erred by denying [J.L.H.‘s] motion to dismiss for lack of jurisdiction based on the issuance of the final adoption decree.
The juvenile court erred by awarding shared custody to [M.L.G.].
{¶ 19} We begin our analysis by addressing J.L.H. and M.B.H.‘s objections to the decision of the appellate court magistrate, which are limited to certain conclusions of law reached by the magistrate. Although J.L.H. and M.B.H. agree with the magistrate‘s ultimate decision to grant their motion to dismiss and to deny M.L.G.‘s request for writs of prohibition and mandamus, they object to the following determinations set forth by the magistrate: “As indicated previously, despite the fact that M.L.G. is not and cannot legally be identified as M.E.G.‘s parent, the juvenile court does have jurisdiction to consider custody/visitation issues between the parties. * * * The proceedings in the probate court do not affect the status of the custody matter in the juvenile court.” Magistrate‘s Decision, at 6. Specifically, J.L.H. and M.B.H. dispute the magistrate‘s determination that the probate court‘s issuance of a final decree of adoption does not divest the juvenile court of jurisdiction to decide the custody matter.
{¶ 20} This objection is substantially similar to J.L.H.‘s first assignment of error, in which she argues the juvenile court erred by failing to grant her motion to dismiss for lack of subject-matter jurisdiction, due to the probate court‘s issuance of a final decree of adoption. Therefore, we shall analyze these two challenges together.
{¶ 21} “It is well settled under Ohio law that a juvenile court may adjudicate custodial claims brought by the persons considered nonparents at law.” In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, ¶ 43. Additionally, a parent may relinquish sole custody of a child in favor of shared custody with a nonpаrent. In re Mullen, 185 Ohio App.3d 457, 2009-Ohio-6934, ¶ 6 (1st Dist.), citing Bonfield. Nevertheless, pursuant to
{¶ 22}
(A) A final decree of adoption and an interlocutory order of adoption that has become final as issued by a court of this state, * * * shall have the following effects as to all matters within the jurisdiction or before a court of this state * * *:
(1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological or other legal
parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and the adopted person‘s relatives, including the adopted person‘s biological or other legal parents, so that the adopted person thereafter is a stranger to the adopted person‘s former relatives for all purposes including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the person by name or by some designation not based on a parent and child or blood relationship;
(2) To create the relationship of parent and child between petitioner and the adopted person, as if the adopted person were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after thе adoption is decreed, and * * * which do not expressly exclude an adopted person from their operation or effect[.]
{¶ 23} A same-sex partner who is not the biological mother of a child cannot be considered a “parent” under Ohio law. Bonfield at ¶ 35-36. Therefore, under Bonfield, M.L.G. is not a “parent” and has no parental rights. Consequently, despite M.L.G.‘s claim that she (or at least the juvenile court) should have received notification of the adoption and an opportunity to be heard in the adoption proceedings because she is a nonparent under Bonfield, her notification of or consent to the adoption of M.E.G. was not required by law, and she is without standing to challenge the adoption. Additionally, because the action in juvenile court was not a parentage action (but rather a custody action) and, thus, no “parenting” action was pending in juvenile court, we find the probate court, which has exclusive jurisdiction over matters of adoption, acted properly in moving forward with the adoption. More important, however, is our determination that the final decree of adoption served to terminate all pre-adoption legal relationships between M.E.G. (the adopted person) and her former family, except those established through her biological mother (J.L.H.), as shall be explained more fully below.
{¶ 24} An adoption terminates the jurisdiction of a juvenile court, a divorce court, and/or a probate court as it relates to the granting of post-adoption visitation rights with respect to former parents (State ex rel. Kaylor v. Bruening, 80 Ohio St.3d 142 (1997);
{¶ 25} Based upon current statutory authority and case law, we believe a final decree of adoption awards all custodial rights solely to the adoptive parents and as a result, no other court can make any subsequent custody determinations which would award custodial rights to any other person based on a pre-adoption relаtionship which infringes upon the adoptive parents’ custodial rights. Stated differently, we interpret
{¶ 26} In that case, a woman who was married was given custody of a non-biological child, but her spouse was not given custody of the child. The couple subsequently divorced and the ex-husband was awarded visitation with the child. The woman later re-married and she and her new husband adopted the child and moved to terminate her ex-husband‘s visitation rights. The juvenile court found the visitation was proper, pursuant to
{¶ 27} “Adoption is a function of the state which necessitates the exercise of power in determining the proper custody of a child.” State ex rel. Portage Cty. Welfare Dept. v. Summers, 38 Ohio St.2d 144, 150 (1974). The adoption decree is a determination of custody. As a result, we agree with J.L.H. and M.B.H.‘s assertion that it is illogical to find that an adoption proceeding and a custody proceeding between a parent and a nonparent are two separate matters that can be determined concurrently by two different courts. If adoptive parents are ordered to permit visitation with various third parties, they “will not enjoy the same autonomy as natural parents.” Ridenour at 327. A final decree of adoption must be dispositive of any concurrent custody proceedings in another court and it must place all custodial rights in the adoptive parents. Therefore, we find a final decree of adoption terminates the jurisdiction of a juvenile court to award custodial rights to a nonparent on the basis of a pre-adoption relationship with the minor child.
{¶ 28} Based upon the foregoing, and following an independent review pursuant to
{¶ 30} Furthermore, because the juvenile court was without jurisdiction to make a determination of custody, it logically follows, based upon our reasoning as set forth above, that the juvenile court erred in awarding shared custody to both M.L.G. and J.L.H. based on a pre-adoption relationship when the juvenile court lacked jurisdiction to do so. Therefore, we sustain J.L.H.‘s second assignment of error. As a result, we need not address the issue of whether J.L.H. relinquished partial custody of M.E.G. by her actions or whether or not shared custody is in the best interest of M.E.G.
{¶ 31} In conclusion, we sustain J.L.H. and M.B.H.‘s objections but adopt the magistrate‘s findings of facts and conclusions of law, except as to the conclusion that the adoption had no effect on the custody proceedings in juvenile court and the finding that the juvenile court had jurisdiction to consider the custody issues between M.L.G. and J.L.H. In addition, we sustain J.L.H.‘s first and second assignments of error, and reverse and remand this matter to the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, with instructions to dismiss the action.
Objections sustained; writs of prohibition and mandamus denied in case No. 12AP-13; judgment reversed; cause remanded with instructions in case No. 12AP-401.
BROWN, P.J., and KLATT, J., concur.
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Rendered on March 26, 2012
Massucci & Kline LLC, LeeAnn M. Massucci and Kenneth R. Klinе, for relator.
Ron O‘Brien, Proscecuting Attorney, and A. Paul Thies, for respondents.
Einstein & Poling, LLC, and Dianne D. Einstein, for intervenor-respondents.
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Findings of Fact:
{¶ 33} 1. M.L.G. and J.L.G, nka J.L.H. (hereinafter “J.L.H.“), began a long-term relationship in the summer of 1998 and formalized their relationship by attending pre-wedding counseling and entering into a “holy union” through а ceremony that was attended by relatives and friends. M.L.G. and J.L.H. entered into a Marital Commitment Agreement and prepared wills so that, in the event of the death of either party, the other party would get the property of the other, rather than their next of kin.
{¶ 34} 2. The parties decided to have a child together and because J.L.H. was older, it was determined that she would attempt to conceive first.
{¶ 35} 3. On July 22, 2005, J.L.H. gave birth to M.E.G., and the parties raised her together.
{¶ 36} 4. Once M.E.G. was born, M.L.G. remained at home while J.L.H. continued to work full time as a nurse.
{¶ 37} 5. The two women raised M.E.G. together as a family for the first three years of M.E.G.‘s life until they separated in May 2008, and J.L.H. moved from Toledo, Ohio, and relocated in Dublin, Ohio.
{¶ 38} 6. In August 2009, J.L.H. completely severed all communication between M.L.G. and M.E.G, in spite of the fact that J.L.H. had agreed to parent jointly with M.L.G. and share her otherwise exclusive custodial rights with her.
{¶ 39} 7. On August 28, 2009, M.L.G. filed a complaint for custody of M.E.G. in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch (“juvenile court“).
{¶ 40} 8. The juvenile court ordered that M.L.G. have visitation with M.E.G. while the court adjudicated the custody matter.
{¶ 41} 9. J.L.H. married M.B.H. on July 1, 2010.
{¶ 43} 11. On September 26, 2011, a juvenile court magistrate found that the аdoption of M.E.G. by M.B.H. did not divest the juvenile court of its jurisdiction to determine custody issues concerning M.E.G.
{¶ 44} 12. On January 4, 2012, M.L.G. filed this complaint for writs of prohibition and mandamus, arguing that the probate court does not have jurisdiction to finalize the adoption of M.E.G. by M.B.H. and that the juvenile court has exclusive jurisdiction.
{¶ 45} 13. On January 30, 2012, J.L.H. and M.B.H. filed a motion to intervene, which was granted.
{¶ 46} 14. On January 27, 2012, respondent filed a motion to dismiss, arguing in part that M.L.G. does not have standing to bring this petition because she is not M.E.G.‘s parent.
{¶ 47} 15. M.L.G. has not filed a memorandum contra, and the matter is currently before the magistrate on respondent‘s motion to dismiss.
Conclusions of Law:
{¶ 48} For the reasons that follow, it is this mаgistrate‘s decision that this court should grant respondent‘s motion to dismiss.
{¶ 49} A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the nonmoving party. Id.
{¶ 50} In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that relator can prove no set of facts entitling him to recovery. O‘Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not subject to dismissal under
{¶ 51} Respondent argues that M.L.G. does not have standing to file this petition because she is not a parent of the minor child, M.E.G, despite the fact that M.L.G. occupied the rоle of a “parent” during the first few years of M.E.G.‘s life while she and J.L.H. were living together. It is undisputed that J.L.H. is the biological mother of M.E.G.
{¶ 52} In In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, the Ohio Supreme Court considered the legal status of a same-sex cohabitant where the same-sex couple had agreed to have a child via artificial insemination. In spite of the fact that the biological parent of the children desired to have the nonparent same-sex cohabitant legally identified as a parent, the Supreme Court held that a same-sex partner who was not the biological mother could not be considered a “parent” under Ohio law. Id. at ¶ 35-36.
{¶ 53} Despitе the fact that the same-sex partner who was not the biological mother of the children was not considered a parent, the Ohio Supreme Court determined that the juvenile court could make a custody determination. After noting that parents may waive their right to custody of their children, the Supreme Court upheld prior decisions finding that a “[parent‘s] 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.” In re Bonfield, at ¶ 48, citing Masitto v. Masitto, 22 Ohio St.3d 63, 65 (1986). The juvenile court considers all known factors tо determine what is in the best interest of the children.
{¶ 54} In the present case, it is undisputed that the custody action was filed, and that the juvenile court has exercised its jurisdiction and issued preliminary orders finding that it is in the best interest of M.E.G. that she maintain a relationship with M.L.G., and the court has ordered J.L.H. to comply with those orders and permit visitation of M.E.G. with M.L.G.
{¶ 55} M.L.G. cites In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, and In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, and argues that, when the issue of parenting is pending in juvenile court, the probate court must defer to the juvenile court and refrain from proceeding with the adoption until adjudication in the juvenile court.
{¶ 57} In In re P.A.C., the petitioner and the child‘s mother were married when the child was born, and the petitioner was listed as the child‘s father on the birth certificate. However, it was undisputed that the petitioner was not the child‘s biological father. A man named Gary was the biological father. The petitioner and the child‘s mother were divorced. Gary filed a complaint for allocation of parental rights in the juvenile court, and the petitioner filed a parentage action against Gary. The child‘s mother remarried, and her new husband filed a petition in the probate court to adopt the child. The probate court stayed the adoption proceеdings pending a determination in the parentage action.
{¶ 58} In both cases, the Ohio Supreme Court held that, when a parenting issue is pending in the juvenile court, the probate court must refrain from proceeding with the adoption of the child. Relator asserts that, pursuant to In re Pushcar and In re P.A.C., the probate court should not have proceeded with the adoption of M.E.G.
{¶ 59} There is a significant distinction between M.L.G.‘s situation and the situations of the petitioners in In re Pushcar and In re P.A.C. M.L.G. is not M.E.G.‘s parent, and she cannot legally be made one. M.L.G. has no parental rights. In re Bonfield. The matter currently pending in the juvenile court is a custody issue and not a parenting issue. Unlike the petitioners in In re Pushcar and In re P.A.C., M.L.G. has no standing to challenge M.E.G.‘s adoption―her consent is not necessary―there are no parental rights for her to lose.
{¶ 60} M.L.G. confuses the jurisdiction of the juvenile court to determine custody matters with the jurisdiction of the probate court to consider adoption matters. It is undisputed that the probate court has exclusive jurisdiction over adoption matters in the state of Ohio. In re Adoption of Ridenour, 61 Ohio St.3d 319 (1991). The fact that the
{¶ 61} The proceedings in the juvenile court do not divest the probate court of its jurisdiction to consider the adoption petition filed by M.B.H. The juvenile court proceedings pertain to custody and visitation of M.L.G. with M.E.G., and it is not a parenting issue. M.L.G. has no standing to challenge the adoption of M.E.G. by M.B.H. The record indicates that J.L.H. and M.B.H. have married, and it is the desire of J.L.H. to have her husband, M.B.H., adopt M.E.G., and it is M.B.H.‘s desire to do so. The proceedings in the probate court do not affect the status of the custody matter in the juvenile court. The two issues are separate and may be pursued concurrently. Further, pursuant to
{¶ 62} Finding that M.L.G. can prove no set of facts entitling her to relief, it is this magistrate‘s decision that this court should deny her requests for writs of prohibition and mandamus and grant respondent‘s motion to dismiss.
/s/ Stephanie Bisca Brooks
STEPHANIE BISCA BROOKS MAGISTRATE