Roberts v. Roberts

• Decision Date: 11 June 1985
• Docket Number: No. 84AP-1026,84AP-1026
• Parties: , 22 O.B.R. 328 ROBERTS, Appellant, v. ROBERTS, Appellee.
• Court: Ohio Court of Appeals

Page 127

22 Ohio App.3d 127

489 N.E.2d 1067, 22 O.B.R. 328

ROBERTS, Appellant, v. ROBERTS, Appellee.

No. 84AP-1026.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 11, 1985.

Syllabus by the Court

Where the only evidence before the trial court, in a visitation modification proceeding, is that the minor children of the parties will be harmed by exposure to their noncustodial parent's homosexual lifestyle, the trial court abuses its discretion by failing to impose conditions upon the noncustodial parent's exercise of visitation, which would protect the welfare and best interests of the children. If the court is unable to devise adequate safeguards, its only alternative is to terminate visitation until the children attain such an age as they will not be adversely affected by learning of their parent's lifestyle.

William W. Brown, Columbus, for appellant.

Orval E. Fields II, Columbus, for appellee.

NORRIS, Judge.

Plaintiff appeals from an order of the trial court which overruled her motion to terminate defendant's visitation with their three minor children, ages eight, five, and one and one-half, and, instead, modified the court's previous visitation order, found in the decree of divorce, by requiring that defendant exercise his visitation in the Columbus area and prohibiting him from having any unrelated male present during visitation.

According to the testimony adduced at the hearing, defendant is an admitted homosexual who now lives in Boston, Massachusetts, with a male companion in a homosexual relationship. On a few occasions, plaintiff, who is the children's custodian, had permitted defendant to visit with the children in Franklin County in her presence. She had forbidden defendant to allow his male companion to participate in visitation, and, when defendant insisted on her removing these restrictions, plaintiff filed her motion to terminate visitation.

At the hearing, plaintiff introduced the testimony of two psychologists, who agreed that such young children would be harmed significantly were they to learn that their father is a homosexual. One psychologist believed that:

" * * * [V]isitation should be terminated unless there is some type of guarantee that the children will not be exposed to the knowledge that their father is homosexual, or to behavior which would lead them to suspect that.

" * * * [T]he knowledge can be gained either by him telling them, by third party telling them, or by them drawing that conclusion, either through his behavior or through the situation of him visiting with a male friend."

The other psychologist concluded that visitation should be terminated to prevent harm to the children.

Plaintiff also introduced as an exhibit a book entitled "Loving Someone Gay," which defendant had given to her and which bore this notation from defendant:

" * * * that 'Someone' was your husband and is the father of three wonderful children!

"Please read in an effort to understand me and most of all for our children's sake!

"Love, Bob."

The expert witnesses disagreed with the positions taken by the author of the book, among them that a homosexual parent should be open with his children concerning his sexual preference, at the earliest age possible.

Defendant admitted that he had attempted to involve his male companion in visitation; said he had never tried to explain his homosexuality to his children; but that, "[i]f they ask me directly, I can't lie to my children."

The referee who conducted the hearing concluded that:

" * * * [I]t is not in the best interests of the children for them to be exposed to their father's lifestyle at this time. However, a complete termination of visitation is not warranted. Visitation in the past has been in plaintiff's presence. Defendant's male companion should not be present.

"It is therefore recommended * * * that visitation be modified such that defendant may exercise visitation in the Columbus area only and that defendant be prohibited from having any unrelated male present during said visitation. * * *."

The trial court overruled plaintiff's objections, and adopted the referee's report and recommendation.

Plaintiff raises two assignments of error:

"1. The trial court abused its discretion in that its modification order is against the manifest weight of the evidence presented.

"2. The trial court's modification order is contrary to and in direct conflict with its own findings of facts and thereby constitutes an abuse of discretion."

The assignments of error are interrelated and will be considered together. Because the trial court was vested with the discretion to make a visitation order which was "just and reasonable," permitting defendant to visit the children "at the time and under the conditions" it deemed proper (R.C. 3109.05), the standard to be applied to our review of the trial court's...