Order granting grandparents visitation rights reversed on appeal

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In the case of In re I.R.H., the Ohio Court of Appeals reversed an order granting the maternal grandparents visitation rights with the child. The case was sent back to the trial court to establish a more limited visitation schedule.

An Ohio statute authorizes grandparents to petition for court-ordered visitation rights in cases where the child's parents are unmarried, or have filed proceedings for divorce, dissolution of marriage or legal separation, or one of the child's parents is deceased. Visitation rights can be ordered if the court determines that the grandparent has an "interest in the welfare of the child" and that grandparent visitation would be in the child's best interest. The court must consider a "fit" parent's wishes when deciding whether to make an award.

Background and procedural history

The child was born in 2006, while the parents were married, but the parents obtained a divorce in 2009. The divorce decree provided for shared parenting.

The mother was killed in an automobile accident in 2012. The father permitted the grandparents some limited visits and invited them to soccer games and dance recitals. After disagreements arose, the grandparents filed a request for court-ordered visitation.

At the hearing, the father argued that forced visitation with third parties, including the grandparents, might be harmful to the child. He presented evidence that, since the mother's death, the child suffered from separation anxiety and had difficulty being separated from the father, to the point where the child was unable to go on sleepovers with friends or family members.

The magistrate determined that it was important for the child to continue to nurture a relationship with the maternal grandparents, and that the father agreed, but that the father's concerns were real and not vindictive, and overruled the grandparent's request for expanded visitation.

The trial court overruled the magistrate's decision, and granted visitation rights to the grandparents under the court's standard visitation schedule for non-residential parents.

The Seventh District's decision

The Seventh District agreed that the best interest factors supported visitation rights for the grandparents, but reversed the trial court's ruling on two grounds.

First, the Seventh District held that the father's due process rights were violated. Ohio law presumes that a fit parent acts in the child's best interests. The trial court must give some special weight to the parent's wishes, but the parent's wishes are not the sole determining factor and they should not be placed ahead of the child's best interest. The court's duty is to protect the child's best interest. The magistrate's ruling indicated that he gave special weight to the father's wishes, but that the trial court did not give recognition or special weight to the father's opposition to visitation nor to his concerns regarding the child's separation anxiety.

Second, the Seventh District held that it was improper for the trial court to issue a standard order of visitation. The standard visitation schedule included visitation every Wednesday evening, overnight visits on alternating weekends, and alternate visitation on all major holidays, the child's birthday, and school vacations, including one-half of the child's summer vacations. The appellate court stated that there is no court precedent for such an order, and that it extended even beyond the schedule which the grandparents had requested. The case was sent back to the trial court with instructions to establish a more limited, reasonable visitation schedule.

Contact an attorney

Individuals involved in family law matters such as child custody and visitation are urged to consult with a competent attorney for the protection of their legal rights.