Gibson, In re

• Decision Date: 24 July 1991
• Docket Number: No. 90-1049,90-1049
• Citation: 61 Ohio St.3d 168,573 N.E.2d 1074
• Parties: In re GIBSON, a Minor.
• Court: Ohio Supreme Court

Page 168

61 Ohio St.3d 168

573 N.E.2d 1074

In re GIBSON, a Minor.

No. 90-1049.

Supreme Court of Ohio.

Submitted May 7, 1991.

Decided July 24, 1991.

SYLLABUS BY THE COURT

The complaint of a grandparent seeking only visitation with a grandchild may not be determined by the juvenile court pursuant to its authority to determine the "custody" of children under R.C. 2151.23(A)(2).

Appellant, Paul D. Gilbert, is the maternal grandfather of Mark Gibson, who was born in 1986. Gilbert initiated this proceeding by filing a "complaint for visitation rights with grandson" in the Juvenile Division of the Court of Common Pleas of Miami County. Gilbert asserted in the complaint that he had been denied visitation with Mark by Mark's natural parents, Steve and Bonny Gibson, appellees herein. Gilbert contended that a "very special relationship" existed between himself and Mark, that visitation would be in Mark's best interest, and that he should "be granted visitation rights under Revised Code Section 3109.05(B)." Gilbert did not allege, however, that the Gibsons' marriage or their care for Mark had been disrupted.

Gilbert also filed a motion for temporary visitation, which motion was initially granted. However, shortly thereafter, the juvenile court granted the Gibsons' motion to dissolve the temporary order and dismissed the complaint for visitation. The trial court later denied Gilbert's motion for reconsideration. The court of appeals affirmed.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Paul D. Gilbert, pro se.

Jeffrey E. Froelich and F. Ann Crossman, Dayton, for appellees.

MOYER, Chief Justice.

The question presented is whether the juvenile court had jurisdiction to entertain Gilbert's complaint for visitation with his grandson. The court of appeals determined that the juvenile court lacked such jurisdiction. We affirm.

In In re Whitaker (1988), 36 Ohio St.3d 213, 522 N.E.2d 563, we discussed the status of grandparental visitation rights in the context of a dissolution of marriage. We stated that "Ohio has two statutes that confer visitation rights upon nonparents: R.C. 3109.11 and 3109.05(B)." Id. at 215, 522 N.E.2d at 565. After reviewing those statutes, we concluded that grandparental visitation rights in Ohio "do not vest until the occurrence of a disruptive precipitating event, such as parental death or divorce. Otherwise, the common-law view of deferring to parental autonomy in raising the child is observed despite any moral or social obligations that may encourage contact between grandparents and grandchildren." (Footnote omitted.) Id. at 215, 522 N.E.2d at 566.

Although recent statutory amendments have no effect on the outcome of this case, we note that those amendments for the most part are consistent with the holding of Whitaker. ¹ The General Assembly has added a new section, R.C. 3109.051, which provides in subdivision (B)(1) that grandparental visitation may be granted in cases involving "a divorce, dissolution of marriage, legal separation, annulment, or child support proceeding that involves a child * * *." R.C. 3109.11 continues to allow for visitation with a child by those persons, including grandparents, who are related to the child's deceased parent. In one departure from the "disruptive precipitating event" principle, R.C. 3109.12 has been added to allow grandparental visitation in the case of "a child * * * born to an unmarried woman." Nevertheless, even with these changes, R.C. Chapter 3109 continues to honor parental autonomy when the natural parents of the child have remained married throughout the child's lifetime without disruption.

Apparently in view of our holding in Whitaker, Gilbert no longer relies on former R.C. 3109.05(B) as a basis for his argument. He has not alleged the occurrence of any disruptive precipitating event. Instead, Gilbert now relies upon a series of statutes governing the juvenile court. He first cites R.C. 2151.23(A)(2), which provides that the juvenile court has exclusive original jurisdiction "[t]o determine the custody of any child not a ward of another court of this state." He next relies on R.C. 2151.23(F)(1), which provides that "[t]he juvenile court shall exercise its jurisdiction in child custody matters in accordance with sections * * * 3109.21 to 3109.36 * * * of the Revised Code." Using R.C. 2151.23(F)(1), Gilbert further relies on former R.C. 3109.21(B), which provided, for purposes of the Uniform Child Custody Jurisdiction Act ("UCCJA") in R.C. 3109.21 to 3109.37, that " 'custody determination' means a court decision and court orders and instructions providing for the custody of a child, including visitation rights." ² He uses former R.C. 3109.21(B) in an attempt to show that "custody" includes "visitation" and that the juvenile court may hear a complaint for visitation pursuant to its power to determine "custody" cases.

In the alternative, Gilbert also contends that he has been denied equal protection of the laws because some grandparents allegedly can obtain visitation in Ohio under the "custody determination" definition in the UCCJA, while he cannot. He also asserts that Ohio courts possess inherent equitable power to act as parens patriae in the best interests of his grandson.

These arguments are not persuasive. They were waived when Gilbert failed to raise them in the juvenile court, and are not supported by law.

Gilbert misunderstands the meaning of the term "custody." "Visitation" and "custody" are related but distinct legal concepts. "Custody" resides in the party or parties who have the right to ultimate legal and physical control of a child. "Visitation" resides in a noncustodial party and encompasses that party's right to visit the child. See former R.C. 3109.05(B) (court may allow "parent who is deprived of the care, custody, and control of the children to visit them * * *."). In other words, "visitation" is granted to someone who does not have "custody." Although a party exercising visitation rights might gain temporary physical control over the child for that purpose, such control does not constitute "custody" because the legal authority to make fundamental decisions about the child's welfare remains with the custodial party and because the child eventually must be returned to the more permanent setting provided by that party. See Patrick v. Patrick (1962), 17 Wis.2d 434, 438, 117 N.W.2d 256, 259 (party having visitation does "not have custody during * * * visits, but only such obligation and authority as are practical necessities during such visits."); Westrate v. Westrate (App.1985), 124 Wis.2d 244, 248, 369 N.W.2d 165, 168 ("visitation differs from custody because the noncustodial parent and child do not live together as a single family unit."). In asking for visitation only, Gilbert was not asking the juvenile court to determine or award him "custody."

Gilbert's reliance on R.C. 2151.23(F)(1) and former R.C. 3109.21(B) is misplaced. Former R.C. 3109.21(B) was a definitional provision in the UCCJA. The definition of "custody determination" as "including visitation rights" was expressly limited in effect to the four corners of the UCCJA. Therefore, the definition of "custody determination" in former R.C. 3109.21(B) did not fix the meaning of "custody" in R.C. 2151.23(A)(2). Furthermore, in using the phrase "including visitation rights," the drafters of the UCCJA apparently recognized that "custody" does not encompass visitation and that an express provision "including visitation" was necessary to bring orders affecting visitation within the scope of the UCCJA. The drafters were creating a special definition for purposes of the UCCJA, and were not...