Whitaker, In re

• Decision Date: 04 May 1988
• Docket Number: No. 87-973,87-973
• Citation: 522 N.E.2d 563,36 Ohio St.3d 213
• Parties: In re WHITAKER et al.
• Court: Ohio Supreme Court

Page 213

36 Ohio St.3d 213

522 N.E.2d 563

In re WHITAKER et al.

No. 87-973.

Supreme Court of Ohio.

May 4, 1988.

Syllabus by the Court

1. Grandparents may be granted visitation rights under R.C. 3109.11 and 3109.05(B) if the trial court finds that such visitation is in the child's best interest.

2. The factors set forth in R.C. 3109.04(C) with respect to determining the child's best interest in custody cases apply equally to visitation cases. The trial court must weigh these and other relevant factors in determining the child's best interest in visitation cases.

3. An in camera interview of a child may be an appropriate method by which the trial court determines the child's best interest in visitation cases, even if one of the parties objects to such an interview.

Charles T. Whitaker married Sarah J. Whitaker (now Clinger), appellee herein, in December 1974 and the couple obtained a dissolution decree in April 1977. Shay Andrea Whitaker was born of the marriage on September 28, 1975.

A separation agreement, which was incorporated into the dissolution decree, granted custody of the child to appellee. The husband was ordered to make support payments and was given reasonable visitation rights. For approximately one year after the dissolution, Shay spent weekends with her paternal grandparents, Charles and Garnet Whitaker, appellants herein. In addition, the child stayed with appellants on a regular basis for at least five months while appellee was training as a nurse in Florida. Shay returned to her mother's home when appellee came back to Ohio. Appellee continued to allow Shay to visit with appellants on the weekends. She also left Shay with appellants for at least a week while appellee and her second husband were on their honeymoon.

In September or October 1984, appellee terminated appellants' visitation rights with the child for the reason that Shay's father, who did not live with appellants, had been arrested for abducting a nine-year-old girl in Ross County, Ohio. In an effort to regain visitation rights with Shay, a motion was filed in the Court of Common Pleas of Scioto County requesting that the court modify its previous visitation order so that appellants would be included as parties entitled to visitation.

After an evidentiary hearing, the trial court concluded that appellants had an interest in the welfare of the child and that it was in Shay's best interest to continue her relationship with her grandparents. Both parties presented testimony by expert witnesses to support their respective positions. The trial court, without conducting an in camera interview of the ten-year-old girl, agreed with the assessment rendered by appellants' expert. As a result, the trial court found for appellants and granted them visitation rights for one full weekend each month from 4:00 p.m. on Friday until 6:00 p.m. on Sunday.

Appellee appealed to the court of appeals, which held that the trial court should have granted appellee's motion to interview the child in camera. Further, the appellate court held that the trial court's order should have limited Shay's contact with her father on visitation days with her grandparents because the father had been convicted of a felony and was awaiting sentencing. Apparently finding that the visitation order was against the manifest weight of the evidence, the appellate court reversed the trial court's judgment and denied appellant's request for visitation rights.

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

Porter, Wright, Morris & Arthur, Denise M. Mirman, Columbus, and Ronald E. McKenzie, Portsmouth, for appellants.

Evans, St. Clair & Kelsey and Robert C. Hetterscheidt, Columbus, for appellee.

WRIGHT, Justice.

The issue of grandparent visitation rights has become a topic of intense interest in this state and elsewhere in recent years. This court has not directly addressed this important issue, but will do so today.

I

At common law, grandparents had no legal rights of access to their grandchildren. In other words, parents had complete authority to grant or deny grandparents the privilege of visiting their grandchildren. See Note, The Constitutional Constraints on Grandparents' Visitation Statutes (1986), 86 Colum.L.Rev. 118.

This situation has changed dramatically in recent years. Today, forty-eight states have enacted statutes recognizing grandparent visitation rights under certain circumstances. The emergence of these statutes, which were virtually unheard of fifteen years ago, has been attributed to the rising divorce rate and resulting family disruption, coupled with changing concepts of child custody and visitation in divorce and dissolution laws. Id. at 119-122.

Most of these statutes explicitly recognize grandparent visitation rights. Others, such as the ones found in Ohio, grant such rights to parties other than noncustodial parents who have an interest in the welfare of the child.

Ohio has two statutes that confer visitation rights upon nonparents: R.C. 3109.11 and 3109.05(B). The former grants visitation rights to relatives of a deceased parent. The latter, which is the statutory provision at issue in this case, provides that in a divorce, dissolution of marriage, alimony or child-support proceedings:

"The court may make any just and reasonable order or decree permitting any parent who is deprived of the care, custody, and control of the children to visit them at the time and under the conditions that the court directs. In the discretion of the court, reasonable companionship or visitation rights may be granted to any other person having an interest in the welfare of the child. The juvenile court shall have exclusive jurisdiction to enter the orders in any case certified to it from another court." (Emphasis added.)

Thus, if grandparents are to have visitation rights in Ohio, they do not vest until the occurrence of a disruptive precipitating event, such as parental death or divorce. ¹ 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. See In re Schmidt (1986), 25 Ohio St.3d 331, 25 OBR 386, 496 N.E.2d 952, which held that grandparents have no inherent visitation rights with grandchildren or a constitutional right of association with them. Indeed, grandparents do not have any legal right to have contact with their grandchildren until a court grants them such a right. Id. at 336, 25 OBR at 391, 496 N.E.2d at 957. Nevertheless, courts in at least twenty-one states, including two Ohio appellate courts, have held that grandparents may be granted rights to visit with a child if such visitation would be in the child's best interest. ² Statutes authorizing grandparent visitation are based on the assumption that contact between grandparents and grandchildren is in the children's best interest. ³ The benefits of a healthy grandparent-grandchild relationship were recognized by the New Jersey Supreme Court in Mimkon v. Ford (1975), 66 N.J. 426, 332 A.2d 199, where the court stated:

"A very special relationship often arises and continues between grandparents and grandchildren. The tensions and conflicts which commonly mar relations between parents and children are often absent between those very same parents and their grandchildren. Visits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship. Neither the Legislature nor this Court is blind to human truths which grandparents and grandchildren have always known." Id. at 437, 332 A.2d at 204-205.

We, too, recognize the importance of a grandchild-grandparent relationship and understand that maintenance of this relationship may be in the best interest of the child. Therefore, we hold that grandparents may be granted visitation rights under R.C. 3109.11 and 3109.05(B) if the trial court finds that such visitation is in the child's best interest. ⁴

II

The next issue we address is what evidence must a trial court consider in determining whether grandparent visitation--or any other visitation--is in the child's best interest?

No statutory scheme currently exists by which a trial court is to determine the child's best interest in visitation cases. In custody cases, however, R.C. 3109.04(C) sets forth five factors that a trial court must consider in determining the child's best interest. These are:

"(1) The wishes of the child's parents regarding his custody;

"(2) The wishes of the child regarding his custody if he is eleven years of age or older;

"(3) The child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest;

"(4) The child's adjustment to his home, school, and community;

"(5) The mental and physical health of all persons involved in the situation."

Other than the fact that a custody award is more permanent in nature, many of the goals and concerns involved in custody cases are substantially similar to those found in visitation cases. Therefore, we hold that the factors set forth in R.C. 3109.04(C) with respect to determining the child's best interest in custody cases apply equally to visitation cases. The trial court must weigh these and other relevant factors in determining the child's best interest in visitation cases.

The statutory language of R.C. 3109.04(C)(2) mandates that the trial court consider the child's wishes regarding his or her custody once the child reaches the age of eleven. Prior to the child's attaining that age, the trial court need not consider the child's wishes. But it is certainly within the trial court's discretion to allow a child under the age of eleven to testify concerning his or her wishes. ⁵ Indeed, it must be remembered that the single...