Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, March 8, 2006

Case Law Development: Supreme Court Rejects Review of Ohio Decision Favoring Grandparents

The Supreme Court refused Monday to consider an appeal in a case  involving an Ohio father who asked that the Court strike down Ohio visitation laws on the grounds that they interfere with a parents' right to raise a family free from government interference. Certiorari denied, March 6, 2006, 05-871. The father, who had never married the girl’s mother, won custody of the child but refused to allow her to see her maternal grandparents. The Ohio Supreme Court ruled that the girl should be allowed to maintain contact with the grandparents who had raised her until she was 5 years old.

The father, Brian S. Collier, shared a relationship with the mother that produced a daughter in 1997. They never married, and following the child’s birth, the child’s mother was designated as her residential parent and the father received supervised visitation with the child twice a week. From her birth, the child resided with her mother at the home of her maternal grandparents. The child’s mother was suffering from cancer, and the grandparents cared for her and their granddaughter until the mother’s death in 1999. Following their daughter’s death, the grandparents were granted temporary legal custody of the child. The father later filed for legal custody and in 2002 an Ohio Juvenile Court designated him as the residential parent. On July 31, 2002, he removed the child from her grandparent’s home, where she had lived for the previous five years, and refused to permit any further visitation her and her grandparents.

A juvenile court judge found that visitation with the grandparents was in the child’s best interests, but refused to allow it on the theory that Troxel v. Granville 530 U.S. 57 (2000), requires courts to find “overwhelmingly clear circumstances” that support forcing visitation for the benefit of the child over the opposition of the parent. It said there was insufficient proof in the record to find overwhelmingly clear circumstances for overruling the wishes of the child’s father.

The Ohio Supreme Court disagreed with the trial judge’s theory. It observed that “The plurality [in Troxell] stated that the problem was not that the trial court intervened into the private realm of the family, but that when it did, `it gave no special weight at all’ to the mother’s determination of her daughters’ best interests. The plurality stated that if a fit parent’s decision regarding nonparental visitation becomes subject to judicial review, `the court must accord at least some special weight to the parent’s own determination.’ However, the plurality explicitly declined to “define * * * the precise scope of the parental due process right in the visitation context.” 

The Ohio Supreme Court observed that Ohio’s statutes are more narrowly drawn and capable of a more narrow construction than the Washington statute in Troxel. It held that courts are, of course, obligated to afford some special weight to the wishes of parents of minor children when considering petitions for nonparental visitation made pursuant to R.C. 3109.11 or 3109.12. However, “Ohio’s nonparental-visitation statutes not only allow the trial court to afford parental decisions the requisite special weight, but they also allow the court to take into to consideration the best interest of the child and balance that interest against the parent’s desires. Further, while Troxel states that there is a presumption that fit parents act in the best interest of their children, nothing in Troxel indicates that this presumption is irrefutable. The trial court’s analysis of the best interests of a child need not end once a parent has articulated his or her wishes. By stating in Troxel that a trial court must accord at least some special weight to the parent’s wishes, the United States Supreme Court plurality did not declare that factor to be the sole determinant of the child’s best interest. Moreover, nothing in Troxel suggests that a parent’s wishes should be placed before a child’s best interest. The state has a compelling interest in protecting a child’s best interest.”

The Ohio Supreme Court held that the trial court properly placed the burden of proving that visitation would be in the best interest of the minor child on the grandparents, thereby honoring the traditional presumption that a fit parent acts in the best interest of his or her child. However, the trial court misinterpreted Troxel as requiring courts to find “overwhelmingly clear circumstances” to support forcing visitation for the benefit of the child over the opposition of the parent. “Troxel did not articulate such a standard.” Harold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, certiorari denied, March 6, 2006 (reo). Download here Ohio decision, Harold_v_Collier_grandparent_visitation.pdf

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