A juvenile court has the authority to grant non-relative temporary visitation rights when it deems that doing so is in the best interest of the child involved, the Supreme Court of Ohio ruled yesterday.

The 5-2 majority held that a Franklin County juvenile court properly granted Julie Rowell temporary visitation rights during proceedings for shared custody of Julie Smith’s child, whom she helped raise for six years, after their relationship dissolved.

“In exercising its jurisdiction under R.C. 2152.23(A)(2), a juvenile court may issue temporary visitation orders that are in the best interest of the minor child during the litigation,” Ohio Supreme Court Justice Evelyn Lundberg Stratton wrote for the court.

Case summary details that Smith gave birth to a daughter in 2003 as a result of artificial insemination.

Rowell’s counsel, Leeann Massucci of Massucci and Kline LLC, stated that Rowell accompanied Smith to both inseminations, was in the delivery room at the time of the birth and helped raise the child.

When Smith and Rowell’s relationship ended, Rowell filed a petition seeking shared custody and requesting a temporary order for companionship time with the child.

The juvenile court granted the temporary order in January 2009, but after Smith failed to abide by it, she was found in contempt and appealed to the 10th District.

On appeal, the district court ruled that there were errors with the January order and reversed the finding of contempt. This prompted the juvenile court to grant another temporary order of visitation in February 2010, with which Smith also failed to comply, according to case summary.

The following month a magistrate found Smith was in contempt and sentenced her to three days in jail. Jail time was suspended on the grounds that Smith abide by the temporary visitation order and pay Rowell’s attorney fees for the contempt proceedings. Smith failed to comply and ultimately objected and appealed to the 10th District.

The appellate court ruled that the juvenile court lacked authority to issue the visitation order and that “Smith could not be held in contempt of an invalid order.”

Prior to the oral arguments before the Ohio Supreme Court, the case was resolved and Rowell was granted visitation rights, to which both parties are complying. Massucci, however, argued that the did not render the appeal moot.

“This is a matter of great public interest, because if the 10th District Court of Appeals case stands and says that you must be related to have a temporary order of visitation, then all of the parties out there that even have shared custody agreements that are unrelated, third parties technically, these people will not have access to a temporary order,” Massucci said, adding that there were multiple cases in Franklin County watching this case closely.

On review, the justices held that the appeal was grounded in the fact that a juvenile court may only exercise jurisdiction if a statute has expressly granted it that authority.

Smith’s attorney, Gary Gottfried of Gary Gottfried Co. LPA, argued that the trial court did not have such authority and wrongfully granted the temporary visitation order.

“Because the juvenile court has limited jurisdiction, it cannot award something that it doesn’t have,” he said in oral arguments.

After studying the applicable sections of the Ohio Revised Code, the justices stated that the juvenile court can issue temporary visitation if it determines that the visitation will be in the best interest of the child.

Smith alleged that such an interpretation was a violation of her constitutional rights as a parent, which Massucci refuted by emphasizing that Rowell was more than a babysitter who “thought it was appropriate to ask for custodial rights.”

“In fact, I think the distinction here is when you have two people who have entered a relationship and intentionally brought a child into the world and intentionally raised them together and intentionally provided a family scenario for them, I think the facts of those cases rise to a much higher level than there would be a coach or a babysitter,” Massucci stated.

The justices maintained that the juvenile court had the right to hear arguments from both Rowell and Smith and determine whether the visitation would benefit the child. Because the trial court had acted within its authority, the justices affirmed its decision.

“Accordingly, we reverse the judgment of the court of appeals and reinstate the trial court’s orders of June 30, 2010, and July 27, 2010,” Lanzinger wrote.

In a concurring opinion, Justice Yvette McGee Brown held that Smith should have been held responsible for being in contempt of multiple court orders. She wrote that Smith had “thumbed her nose” at court order for more than three years and should have to explain why she should not be held in contempt. Justice Paul Pfeifer concurred with McGee Brown’s opinion.

Justices Robert Cupp and Terrence O’Donnell dissented from the majority, finding that the trial court had recently issued a custody plan by which both parties were abiding.

“Consequently, this case is  moot and there is no actual controversy pertaining to the contempt proceedings presented to this court in this appeal. I would dismiss this appeal as moot,” Cupp wrote in a separate opinion.

The case is cited Rowell v. Smith, case No. 2012-Ohio-4313.

By | 2012-09-27T00:00:00+00:00 Thursday, September 27, 2012|