In re A.G., No. 2012–2097.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtO'CONNOR, C.J.
Citation13 N.E.3d 1146,2014 Ohio 2597,139 Ohio St.3d 572
Docket NumberNo. 2012–2097.
Decision Date19 June 2014
Parties In re A.G.

139 Ohio St.3d 572
13 N.E.3d 1146
2014 Ohio 2597

In re A.G.

No. 2012–2097.

Supreme Court of Ohio.

Submitted Oct. 23, 2013.
Decided June 19, 2014.


Howard C. Whitcomb III, Toledo, for appellant.

Hallett, Hallett & Nagel, Timothy W. Hallett, Wauseon, and Eric K. Nagel, for appellee.

O'CONNOR, C.J.

139 Ohio St.3d 573

{¶ 1} In this appeal, we decide whether a court may exclude from trial a child who is the subject of custody litigation arising from a divorce case. We first clarify that when a domestic-relations court certifies an ongoing custody case to a juvenile court under R.C. 3109.04(D)(2), matters related to the original divorce-custody case continue to be domestic-relations matters, governed only by R.C. 3109.04. And we hold that a child is not a proper party in a divorce action or its ancillary custody proceedings, even if she is joined as a

13 N.E.3d 1149

party defendant pursuant to Civ.R. 75(B)(2). We recognize that although not a party to the action, a child who is the subject of custody litigation arising from a divorce has an interest in the matter, and we hold that in child-custody litigation arising from a divorce, a court has discretion to exclude the child from any proceeding if, in the totality of the circumstances, exclusion is in the best interest of that child.

{¶ 2} Because the Sixth District Court of Appeals correctly held that the trial court had discretion to exclude A.G., a nonparty, from a hearing in custody litigation ancillary to her parents' divorce, we affirm its judgment.

RELEVANT BACKGROUND

{¶ 3} In early 1995, Lolita1 (a Russian citizen) and Patrick (a United States citizen) met and married in Russia and settled in the United States directly thereafter. A.G. was born in December 1995.

Henry County Domestic–Relations Proceedings

{¶ 4} When Patrick filed for divorce in June 1998, the court granted his motion for custody of A.G., and he and Lolita reached an agreement on her visitation rights.

{¶ 5} But in February 1999, Patrick absconded with A.G. As a result, the domestic-relations court found Patrick in contempt of the agreed visitation order, issued a bench warrant for his arrest, and designated Lolita as the custodial parent.

{¶ 6} According to Lolita, in June 1999, the Federal Bureau of Investigation tracked Patrick down in Florida. When Patrick was arrested, he possessed $55,234 in cash, fake birth certificates for himself and A.G., and a fake identification card bearing his picture and the name "Michael James Phillips." Law enforcement also discovered evidence that Patrick had been in Arizona and was planning to take A.G. to Costa Rica imminently. The authorities returned A.G. to her mother. As a result, Patrick was convicted of attempted interference with custody.

139 Ohio St.3d 574

{¶ 7} Nearly two years later, on February 23, 2001, the Henry County Domestic Relations Court approved a consent judgment entry of divorce, which resolved all of the issues between the parties except child support and visitation. That same day, the court issued another judgment entry that established a schedule under which Patrick's visitation rights would expand over time.

{¶ 8} Within weeks of the order, this time, Lolita absconded with A.G. One year later, according to a court-appointed guardian ad litem ("GAL"), A.G. was forcibly abducted from Lolita's Moscow home. Reportedly, a group of men entered the residence, injected Lolita and A.G.'s maternal grandmother with drugs, and tied them up, thereby disabling the women and permitting the men to kidnap A.G.

{¶ 9} After the GAL notified the domestic-relations court that the F.B.I. believed that Patrick was responsible for the abduction, the court determined that A.G. was at risk for serious physical and emotional harm and that it was in her best interest that neither parent be designated the residential parent or legal custodian. Accordingly, on July 25, 2002, it certified the case to the juvenile division, pursuant to R.C. 3109.04(D)(2), which authorized the juvenile court to place A.G. in the temporary custody of the county, pending a custody determination.

Henry County Juvenile Court Proceedings

13 N.E.3d 1150

{¶ 10} In turn, the juvenile court2 determined that "the urgent nature of the circumstances and the child's imminent risk of harm" necessitated A.G.'s placement in the care and custody of the Henry County Department of Job and Family Services for her "protection, safety and best interest." That court also ordered law-enforcement officers to seize A.G., if any should find her.

{¶ 11} The next day, July 26, 2002, Patrick delivered the child to the Henry County Department of Job and Family Services. A.G. remained in the temporary custody of the county for two months while the Department of Job and Family Services conducted an investigation.

{¶ 12} On September 23, 2002, the juvenile court awarded custody of A.G. to Lolita and granted Patrick unsupervised visitation according to a standard schedule.

{¶ 13} Eventually, both parties moved out of Henry County. In 2002, Patrick moved to North Carolina. And in 2004, Lolita (and A.G.) moved to Ottawa County, Ohio. Accordingly, on February 10, 2006, the Henry County Juvenile

139 Ohio St.3d 575

Court transferred the case to the Ottawa County Juvenile Court, for proper venue.

Ottawa County Juvenile Court Proceedings

{¶ 14} The Ottawa County Juvenile Court promptly appointed a GAL pursuant to Civ.R. 75(B)(2), which provides that a court may join the child of the parties as a party defendant and appoint a GAL when it is essential to protect the child's interests. On June 23, 2006, the GAL filed a motion for an emergency order to suspend Patrick's visitation. In doing so, she stated that A.G. was "under a tremendous amount of emotional pressure due to the outrageous and unbelievable history of this case." And the GAL stated that she was confident that the child's "emotional and mental anguish and stress * * * increase with each visit that she is required to spend with her father." The cause of A.G.'s trouble, the GAL concluded, was Patrick's "alleged and documented violent and unpredictable nature and history." For all of those reasons, she asserted that it was in A.G.'s best interest to remain exclusively with her mother at least for the time being.

{¶ 15} That same day, the juvenile court granted the emergency motion.

{¶ 16} But on February 8, 2007, the GAL notified the court that she was uncertain of her earlier recommendation and that in her view, a best-interest determination in this case required expertise beyond that possessed by any GAL. Therefore, she recommended that a psychologist evaluate A.G. and her parents to determine what would be in A.G.'s best interest. The GAL also recommended that in the event of any trial, the juvenile court should excuse A.G. from appearing as a witness and instead interview her in chambers.

{¶ 17} The court ordered additional psychological evaluations and interviewed A.G. in chambers. As a result, on July 11, 2008, the juvenile court granted Patrick supervised visitation in Ottawa County only.

{¶ 18} Less than a year later, in February 2009, A.G. wrote a letter to her father wherein she stated that she had no intention of visiting him in North Carolina again. On September 14, 2009, Patrick responded by filing a motion for unsupervised visits in North Carolina.

13 N.E.3d 1151

{¶ 19} On October 14, 2009, counsel entered an appearance on behalf of A.G. and opposed Patrick's motion to expand his visitation rights and moved to terminate Patrick's then-existing visitation rights.

{¶ 20} On October 21, 2009, A.G. filed a motion to permit her attendance at trial. She was 13 years old at the time.

{¶ 21} Two days later, Lolita's counsel sought permission to withdraw from representation. In doing so, he explained that Lolita would be relying on the newly retained lawyer for the child and on her own pro se efforts. Moreover, counsel advised that Lolita had informed him that she was paying the bill for

139 Ohio St.3d 576

A.G.'s counsel and could not also employ separate counsel for herself. On November 18, 2009, and after some reluctance, the juvenile court granted Lolita's counsel's motion to withdraw.

{¶ 22} On February 9, 2010, the GAL filed a status report and revised recommendation in which she recommended that the court grant Patrick overnight, unsupervised visitation during which A.G. should be prohibited from using her cell phone except for 30 minutes a day and at a time designated by Patrick, or in the event of an emergency. In doing so, the GAL stated that she had recently, since the first part of November 2009, begun to study "the issue of parental alienation," which she described as "where a child rejects a parent for no good reason." Even though the GAL...

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51 practice notes
  • Cyran v. Cyran, Nos. 2016–1737
    • United States
    • United States State Supreme Court of Ohio
    • January 4, 2018
    ...American courts will not decide cases in which there is no longer an actual legal controversy between the parties. In re A.G. , 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. Thus, when parties "lack a legally cognizable interest 97 N.E.3d 490in the outcome," a case bec......
  • In re J.T., No. 18CA9
    • United States
    • United States Court of Appeals (Ohio)
    • February 5, 2019
    ...means that are "reasonably calculated" to inform the parent of the proceeding involving his or her child. In re A.G. , 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 64. Furthermore, the state must exercise "reasonable diligence in attempting to notify [parents] that [......
  • Heartland of Urbana OH, LLC v. McHugh Fuller Law Grp., PLLC, No. 2016–CA–3.
    • United States
    • United States Court of Appeals (Ohio)
    • September 23, 2016
    ...doctrine, " ‘American courts will not decide * * * cases in which there is no longer any actual controversy.’ " In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37, quoting Black's Law Dictionary 1100 (9th Ed.2009). This is based on the fact that courts have no du......
  • In re B.M., No. 16CA12
    • United States
    • United States Court of Appeals (Ohio)
    • September 21, 2017
    ...jurisdiction and venue are distinct legal concepts. In re Z.R., 144 Ohio St. 3d 380, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 16 ; In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 53, citing Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph one of the syllabus......
  • Request a trial to view additional results
51 cases
  • Cyran v. Cyran, Nos. 2016–1737
    • United States
    • United States State Supreme Court of Ohio
    • January 4, 2018
    ...American courts will not decide cases in which there is no longer an actual legal controversy between the parties. In re A.G. , 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. Thus, when parties "lack a legally cognizable interest 97 N.E.3d 490in the outcome," a case bec......
  • In re J.T., No. 18CA9
    • United States
    • United States Court of Appeals (Ohio)
    • February 5, 2019
    ...means that are "reasonably calculated" to inform the parent of the proceeding involving his or her child. In re A.G. , 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 64. Furthermore, the state must exercise "reasonable diligence in attempting to notify [parents] that [......
  • Heartland of Urbana OH, LLC v. McHugh Fuller Law Grp., PLLC, No. 2016–CA–3.
    • United States
    • United States Court of Appeals (Ohio)
    • September 23, 2016
    ...doctrine, " ‘American courts will not decide * * * cases in which there is no longer any actual controversy.’ " In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37, quoting Black's Law Dictionary 1100 (9th Ed.2009). This is based on the fact that courts have no du......
  • In re B.M., No. 16CA12
    • United States
    • United States Court of Appeals (Ohio)
    • September 21, 2017
    ...jurisdiction and venue are distinct legal concepts. In re Z.R., 144 Ohio St. 3d 380, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 16 ; In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 53, citing Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph one of the syllabus......
  • Request a trial to view additional results

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