January 30, 2013
Nonparent Visitation Rights

by Justice Paul E. Pfeifer

On September 9, 2003, Julie Ann Smith gave birth to a daughter as the result of artificial insemination from an unknown donor. At the time, Smith was involved in a relationship with Julie Rose Rowell. But several years later, when their relationship ended, a prolonged and contentious custody battle began that eventually made its way here – to the Supreme Court of Ohio.

Rowell filed a petition in juvenile court seeking an order for shared custody. She also requested an order granting her companionship time with the child. A magistrate issued a temporary order granting shared custody, but Smith filed a motion to set aside the order.

In January 2009, the juvenile court granted Smith’s motion to set aside the magistrate’s temporary order, but issued another temporary order that again granted Rowel and Smith shared custody. A few days later, the court modified its previous order and issued another, this time designating Smith as the child’s legal custodian and residential parent and granting Rowell visitation rights.

When Smith failed to comply, Rowell filed a motion for contempt. Smith argued that the court did not have jurisdiction to award visitation rights to Rowell, so it also lacked the power to enforce the order through contempt.

In June 2009, the trial court issued a decision finding Smith in contempt of its order. The court concluded that it had authority to issue temporary orders under the Rules of Juvenile Court Procedure. In response, Smith filed an appeal.

The court of appeals reversed the finding of contempt, holding that the juvenile court had improperly applied the rules on which the contempt finding was based. But the matter did not end there.

In February 2010, a magistrate again issued an order that designated Smith as the temporary custodian and granted Rowell temporary visitation. Again Smith failed to comply; Rowell filed another motion to find Smith in contempt. This time a magistrate found Smith guilty of contempt and sentenced her to three days in jail – which could be suspended if, within 30 days, Smith allowed visitation and paid Rowell for attorney fees and costs.

When Smith failed to comply again, and after another round of motions, a court of appeals held that the juvenile court lacked authority to order visitation, making the underlying temporary order invalid, and therefore Smith could not be in contempt of an invalid order. After that, the case came before us.

According to the Ohio Constitution, a juvenile court may exercise jurisdiction only if expressly granted the authority to do so by statute. In this case, Rowell filed her petition for shared custody under a statute (we’ll call it the “nonparent custody statute”), which grants juvenile courts exclusive jurisdiction to determine the custody of any child, including “custodial claims brought by the persons considered nonparents at law.”

Based on that statute, the juvenile court issued temporary orders to permit visitation between Rowell and the child using the Rules of Juvenile Court Procedure. Under the particular rule, a “judge or magistrate may issue temporary orders with respect to the relations and conduct of other persons toward a child who is the subject of the complaint as the child’s interest and welfare may require.”

In her appeal, Smith argued that the nonparent custody statute confers jurisdiction to the court to determine custody, but does not authorize a court to grant visitation rights. The court of appeals agreed and reversed the order of contempt.

But one of the judges on the court of appeals dissented. The dissenting judge found persuasive an opinion by another court of appeals in a case that was very similar to Rowell’s. In that other case, the court of appeals affirmed a juvenile court’s order granting temporary visitation rights to Rita Goodman, who sought custody of and/or companionship rights with two children after her long-time relationship with the children’s biological mother ended.

The court reasoned that Goodman had a legal right to seek shared custody under the nonparent custody statute and that in such cases, it is the responsibility of the court to act in the best interest of the child. Thus, the court concluded, the juvenile court had jurisdiction to determine not only the issue of custody of the children but also whether it was in the children’s best interest to have companionship with the nonparent.

In Rowell’s case, the juvenile court relied on the juvenile court rule that allows nonparent visitation in granting Rowell visitation rights. In reviewing that decision, we determined that a juvenile court may issue temporary visitation orders in cases within its jurisdiction if it is in the child’s best interest.

Smith argued that this interpretation of the juvenile court rule violates her fundamental rights as a parent, which are protected by the United State Constitution. In support of this argument, Smith cited a United States Supreme Court case that stated parents have a fundamental right to make decisions concerning the care, custody, and control of their children that is protected from government interference by the Due Process Clause of the Fourteenth Amendment.

According to Smith, a court may not grant visitation rights to a nonparent under the nonparent custody statute, even temporarily, until the issue of custody is determined; otherwise, the order is an infringement on the parent’s fundamental rights.

The juvenile court had jurisdiction over the case, it afforded Smith the opportunity to be heard on the issue of visitation, and it had discretion under the juvenile rules to issue a temporary visitation order, so long as it was in the child’s best interest. Within these parameters, we concluded that the court had authority to grant the temporary order and that the temporary order did not violate Smith’s fundamental rights.

Consequently, we determined – by a five-to-two vote – that in exercising its jurisdiction under the nonparent custody statute, a juvenile court may issue temporary visitation orders that are in the best interest of the child during the litigation. We thus reversed the judgment of the court of appeals and reinstated the trial court’s orders.

EDITOR'S NOTE: The case referred to is Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313. Case No. 2011-1053. Decided September 26, 2012. Majority opinion written by Justice Evelyn Lundberg Stratton.