James Tolle v. Susan Gerstner
| Decision Date | 04 January 1983 |
| Docket Number | 83-LW-4988,7691 |
| Parties | JAMES TOLLE Plaintiff-Appellee v. SUSAN GERSTNER Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
MICHAEL V. LEWIS, Attorney at Law, 13 North Franklin Street Richwood, Ohio 43344 Attorney for Appellee.
ROBERT T. DUNLEVEY, JR. and STEPHEN A. WATRING, Attorneys at Law 1401 Talbott Tower, Dayton, Ohio 45402 Attorneys for Defendant-Appellant.
On October 30, 1980, plaintiff James Tolle filed a "Complaint in Declaratory Judgment and Application for Writ of Habeas Corpus" in the Montgomery County Court of Common Pleas, Juvenile Division. Plaintiff asserted in the complaint that defendant Susan Gerstner is the mother of Baby Boy Gerstner (Christopher), born on April 12, 1980. Mr. Tolle further alleged that he is the biological father of the child, although Susan Gerstner has, 1) refused to acknowledge him as the natural father of the child, and 2) has denied him his rights and duties incident to the father-son relationship. Mr. Tolle therefore asked that the Trial Court issue a writ of habeas corpus to produce said child before it in order that custody, support and visitation rights be determined.
Defendant, in her answer filed March 16, 1981, admitted that James Tolle is the biological father of the child, and that she had refused to acknowledge plaintiff as the natural father of the child.
Following hearings on June 5, 1981 and September 28, 1981, the Trial Court rendered its decision and order on January 11, 1982. The Court determined that plaintiff is the natural father of Christopher Gerstner, and that the child is in the lawful custody of his natural mother, Susan Gerstner. The Trial Court further found that a biological father has a right to visit with his illegitimate child if it is in the best interest of the child. The Trial Court concluded that visits of plaintiff with the child will add to, rather than harm the child, and it is in the best interest of the child in this case to know and enjoy his natural father as the father has expressed a sincere interest in the child's development and growth.
Defendant Susan Gerstner has appealed the order to this Court, contending that the Trial Court erred in three instances. As her first assignment of error, defendant argues that the Trial Court lacked subject matter jurisdiction over the action.
R.C. 2151.23 reads in pertinent part:
We shall consider first whether the Trial Court had jurisdiction in this case pursuant to R.C. 2151.23(3) to determine whether the father of a child born out of wedlock is entitled to visitation with the child, the child being in the lawful custody of the mother.
Habeas corpus is an extraordinary remedy and is not available as a means of relief where there is an adequate remedy in the ordinary course of the law. In re Hunt (1976), 46 Ohio St. 2d 378, 348 N.E. 2d 727. The scope of the inquiry in a habeas corpus proceeding involving the custody of a minor child is to resolve conflicting claims to the immediate right of possession of the child. See May v. Anderson (1953), 345 U.S. 528; In re Young (Clark County Court of Appeals No. 1172, March 28, 1978), unreported, aff'd 58 Ohio St. 2d 90.
The Juvenile Court does have subject matter jurisdiction in habeas corpus actions involving conflicting claims to the immediate right of possession of a child. R.C. 2151.23(A)(3).
The action here at issue, in contract, was not one to determine conflicting claims to the immediate right of possession of Christopher. Rather, plaintiff's complaint asked for a determination of future rights of the natural father of the child in respect to visitation and support.
Consequently, the Trial Court's determination pursuant to R.C. 2151.23(A)(3), habeas corpus, must be limited to the determination of the immediate right of possession of the child.
However, the Juvenile Court has jurisdiction to determine the "custody" of any child not a ward of another court of this state. R.C. 2151.23(A)(2). The term "custody" as used in R.C. 2151.23(A)(2), connotes the sum total of all parental rights, among which is the right to support for the child. Kolody v. Kolody (1960), 110 Ohio App. 260, 262, 169 N.E. 2d 34, 35. We hold that "custody" as used in R.C. 2151.23(A)(2) also must encompass the power to determine the right of visitation of a father with his child.
Plaintiff James Tolle's complaint asked for a declaratory judgment declaring the rights and status of the parties in relation to Christopher Gerstner as regards custody, visitation, and support. Courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations irrespective of whether further relief is or could be claimed, Coshocton Real Estate Co. v. Smith (1946), 147 Ohio St. 45, 67 N.E. 2d 904 (syllabus number two), thus the Juvenile Court in this case had jurisdiction to determine the rights and status of the parties concerning the "custody" of Christopher Gerstner.
Finally, we note that the Trial Court did not err in failing to appoint a guardian ad litem to represent the interests of the child. In this case, the natural mother and natural father of the child have adverse and conflicting interests, thus the best interest of the child was effectively represented to the Trial Court for its determination, as contrasted with Blackburn v. Ludden (1982), 1 Ohio Bar Reports 340, and In re Christopher (1977), 54 Ohio App. 2d 137, 376 N.E. 2d 603.
The assignment of error is...
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