Rowe v. Franklin

• Decision Date: 28 June 1995
• Docket Number: Nos. C-930522,C-940358,s. C-930522
• Parties: ROWE, Appellant, v. FRANKLIN, Appellee. *
• Court: Ohio Court of Appeals

Page 176

105 Ohio App.3d 176

663 N.E.2d 955

ROWE, Appellant, v. FRANKLIN, Appellee. ^*

Nos. C-930522, C-940358.

Court of Appeals of Ohio First District, Hamilton County.

Decided June 28, 1995.

Stephen R. Felson, Cincinnati, for appellant.

Sallee Fry Waterman Co., L.P.A., Sallee Fry Waterman and Diane E. Perlich, Cincinnati, for appellee.

GORMAN, Presiding Judge.

Appellant, Kimberly Rowe ("mother"), appeals the trial court's decision designating appellee, Donald J. Franklin ("father"), the residential parent and legal guardian of their then five-year-old son. In her single assignment of error she challenges the trial court's allocation of all parental rights and responsibilities to the father. Because the trial court's findings demonstrate that it improperly focused on a "reproval of the mother" standard in determining the best interests of the child, we find that the assignment of error is well taken.

I. FACTS

The parties were married on July 25, 1987. On February 20, 1988, their son was born. In December 1991, the mother left the marital residence with the child and filed a complaint for divorce and a motion for temporary residential parenting rights and support. On January 8, 1992, the father counterclaimed for divorce and also requested temporary parenting rights and support. ¹ The child remained in the mother's custody pending either a temporary or a permanent custody determination by the court. ² The parties signed an agreed entry regarding visitation and child support. During May 1992, with the father's knowledge, the mother moved to Versailles, Kentucky, for what she expected to be a short time. She stated that the move was made to be closer to her job as a parttime pilot for the U.S. Army so she could increase her flying time and earn more money. During this same time, she was attending law school, after having earned a four-year degree in international affairs and business and having taken some graduate business classes. On May 13, 1992, the mother filed a notice of relocation providing her new address. On June 16, 1992, the parties filed an agreed entry which included a date for an oral hearing to contest the mother's relocation and a schedule for sharing parental responsibility for the summer. The father, an ironworker, was unemployed during that summer.

On September 10, 1993, the mother filed a motion to modify the court's order to allow her to remove the child to Versailles, Kentucky, and to establish his residence there. She had applied to take classes through the University of Kentucky Law School in July and had become pregnant sometime in May by a man whom she had begun seeing in March, and who was married but separated from his wife. In August she enrolled her son in a private school for the times she would attend law school classes. In response to her motion, the father filed an emergency motion for contempt and for return of the child to Ohio. The trial court denied her motion, held the father's contempt motion in abeyance, and allowed the child to remain with the mother until the completion of a previously ordered custody investigation.

Dr. Cynthia Dember completed a psychological evaluation on May 1, 1992. Parenting specialist Jayne Zuberbuhler completed a predecree parenting report on February 18, 1993. On March 5, 1993, the father moved to update Dr. Dember's evaluation, asserting that the mother's move to Kentucky constituted an extreme change of circumstances. The motion was granted. In the spring of 1993, the mother requested that Dr. Stuart A. Cooke evaluate the reports by Dr. Dember and Ms. Zuberbuhler and provide the trial court with his professional opinion. Dr. Dember and Ms. Zuberbuhler, while finding both parents adequate, ultimately recommended custody of the child be given to the father. Dr. Cooke recommended, however, that the mother be designated the residential parent.

Following a hearing eighteen months after the parties separated, the trial court removed custody from the mother and allocated full parental rights of the five-year-old child to the father. The mother appealed this decision, arguing that her move to Kentucky was an inappropriate basis for denial of custody and that the trial court further failed to consider that she was the child's primary caretaker.

II. R.C. 3109.04 AND LIFESTYLE CHOICES

In determining which parent should have custody of a minor child in a divorce proceeding, the trial court is bound to consider the best interests of the child. R.C. 3109.04(F). The relevant factors in determining the best interests of the child are enumerated in R.C. 3109.04(F), but the statutory factors are not all-inclusive.

Concern for a child's well-being or best interests does not, however, provide the court carte blanche to judge the rights and lifestyles of parents by nonstatutory codes of moral or social values. Although a court is not obligated to wear blinders as to a parent's lifestyle and/or morals, including sexual conduct, any state interest in competing lifestyles and accompanying moral values which affect child custody would most equitably be served if limited to a determination of the direct or probable effect of parental conduct on the physical, mental, emotional, and social development of the child, see Whaley v. Whaley (1978), 61 Ohio App.2d 111, 118, 15 O.O.3d 136, 140-141, 399 N.E.2d 1270, 1275, as opposed to a determination of which lifestyle choices made by a parent are "correct." In a society as diverse as the one in which we live a court is ill-equipped to determine which of such choices are "correct."

III. CONSIDERATION OF DIRECT ADVERSE IMPACT OF PARENTS' CONDUCT

Many of the concerns expressed by the trial court in its findings of fact involved the mother's relationship with her male companion and the lifestyle choices she has made concerning her career. Where there is evidence of parental nonmarital sexual conduct, Professor Nora Lauerman has identified four basic approaches used by courts in determining child custody and parental rights. Lauerman, Nonmarital Sexual Conduct and Child Custody (1977), 46 U.Cin.L.Rev. 647. The following are still relevant:

(1) "Conclusive disqualification": A parent's adultery is an absolute bar to custody as a matter of law.

(2) "Presumptive unfitness": The parent's nonmarital sexual conduct is viewed as probably incompatible with the best interest of the child. To overcome the unsuitability presumption, the parent has a heavy burden to rebut the presumption of disqualification.

(3) "Direct adverse impact": The parent's nonmarital sexual conduct is irrelevant to custody unless it has a direct adverse impact on the child. It includes "clear direct impact," present and immediate impact, and "speculative direct impact," the risk of psychological, moral, or other impact.

(4) "Presumptive direct adverse impact": Although the court uses "impact" terminology, it explicitly or implicitly finds that the parent's nonmarital sexual conduct has an adverse impact on the child. Id. at 654-672.

The catalogue of cases cited by Professor Lauerman illustrates that, with the exception of the "direct adverse impact" test, the other tests have traditionally been more rigidly applied by courts where the mother is seeking custody of the child and tend to impose punishment on the mother for her nonmarital sexual activity. We find that the reasons for rejecting each in favor of the "direct adverse impact" test are persuasively stated in Whaley v. Whaley, supra, 61 Ohio App.2d at 116-119, 15 O.O.3d at 139-141, 399 N.E.2d at 1274-1276. The direct adverse impact test allows the court to consider moral principles, but only in relation to the direct or probable effect of the parent's conduct on the child.

While we recognize that the current situation is not a post-decree modification because there was no formal custody order to be modified, in a situation like this where the mother had actual physical custody of the child for an eighteen-month period, we find it difficult not to view the trial court's decision as a modification of the status quo and to analogize this situation to a custody modification. A modification of a prior custody order under R.C. 3109.04(E)(1)(a) depends on two factors: (1) a change of circumstances has occurred, and (2) the modification is necessary to serve the best interests of the child. In post-decree modifications the legislature has recognized the importance for a child to remain in a continuing relationship and the potential consequences detrimental to the child posed by a change of custody. Whaley v. Whaley, supra, 61 Ohio App.2d at 112, 15 O.O.3d at 136-137, 399 N.E.2d at 1272. Former R.C. 3109.04(B)(3) provided that where custody was contested, the test for modification of custody was specifically "direct adverse impact," i.e., that the child's current situation endangered significantly his physical well-being or his mental, moral or emotional development. The current statute, R.C. 3109.04(E)(1)(a)(iii), states that the test for modification is whether "[t]he harm likely to be caused by a change of environment is outweighed by the advantages of such a change to the child." The amendment seeks to continue custody with the residential parent initially designated with even broader emphasis on the best-interest-of-the-child standard. ³

An initial custody award is governed by R.C. 3109.04(B)(1) and depends upon the best-interests-of-the-child test only. Under R.C. 3109.04(B)(1) (formerly R.C. 3109.04[A] ), the legislature has not provided the same threshold when the court makes an initial custody award. The inquiry in an initial custody award is solely the best interests of the child. In light of legislative policy favoring continuity of the relationship for post-decree modification, we see no reason why consideration of the direct adverse impact of a parent's conduct or standards on the child should not also apply to initial custody determinations in this case. Where the parent has...