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Case Summaries: Visitation

DOMESTIC RELATIONS COURT MAY DECIDE MOTION TO MODIFY VISITATION BASED ON OUTCOME OF RELATED CPO PROCEEDING: Where the same judge and court conducted a hearing on a motion to modify a DV CPO and the subsequent hearing on respondent’s motion to modify visitation in the parties’ post-divorce child custody case, the domestic relations court properly adjudicated the later motion to modify visitation based on the outcome of the previous custody modification proceeding.  The trial court need not notice the underlying factual basis for the protection order, since it is the fact of the protection order and its terms which preclude the possibility of the father exercising visitation with his children.  Dowhan v. Dowhan, 2013-Ohio-4097 (11th App. Dist., Lake, 9/23/2013.)

Keywords: parenting time custody parental rights

April 24, 2014

CPO Court Lacked Jurisdiction To Make Custody Determination And Child-Related Restrictions Were Unreasonable:

Pursuant to the plain language of R.C. 3113.31(E)(1)(d), the domestic relations court did not have authority to make an allocation of parental rights and responsibilities in the father’s DV CPO, since the Juvenile Division of the Lake County Court of Common Pleas had previously determined the child’s custody issues.  In addition, some of the child-related restrictions on the mother and her husband—including the no-contact and stay-away restrictions and the prohibition against respondent’s entering the child’s school or school grounds—were unrelated to respondent’s offending conduct and were thus unreasonable.  The CPO on behalf of the father’s minor child should have been limited to restricting respondent from drinking alcohol in their vehicle while the child was in the vehicle, when the order was based on that conduct. Therefore, the court of appeals reversed the improper terms in the CPO and remanded the case to the trial court.  Hoyt v. Heindell, 2010-Ohio-6058 (11th Dist., Lake, 12/10/2010).

Keywords: parenting time, visitation, residential parent, domestic violence, civil protection order

Date: 3/28/11

Provisions Affecting Parental Rights Stricken from DV CPO:

The Seventh District Court of Appeals struck two provisions—stay away and no-contact orders—from a DV CPO because they dealt with communication with the parties’ minor child, who was named a protected party in the CPO.  Because the juvenile court already had jurisdiction over all issues involving the minor child in a pending custody proceeding, the stricken sections of the CPO infringed upon the prior jurisdiction of the juvenile court.  McCue v. Marlin, 187 Ohio App.3d 1 (7th Dist., Mahoning, 3/26/2010).

Keywords: conflicting orders, supersedes, civil protection order, domestic violence

Date: 12/1/10

Subsequent Visitation Order Supersedes CPO: The court of appeals held that magistrate’s temporary visitation order in divorce case was sufficient to entitle father to relief from civil protection order that named child as protected person; fact that civil protection order was subject to being superseded by orders entered in divorce action did not deprive mother and child of equal protection; and fact that temporary visitation order in divorce action superseded civil protection order did not violate state constitution. Delmatto v. Hamed, 2008 WL 5124388, 2008-Ohio-6375 (5th Dist., Fairfield, 12/03/08).


Evidence Insufficient for CPO to Protect Children:

The court of appeals held that: (1) evidence was sufficient to establish that father attempted to cause or recklessly caused bodily injury to mother as element required for CPO; (2) evidence was sufficient to establish that father placed mother in fear of imminent serious physical harm as element required for CPO; but (3) evidence was insufficient to support CPO against father for the protection of his children and the five-year no-contact order with his four children was reversed. Lillard v. Allen, 2008 WL 2836879, 2008-Ohio-3664 (8th Dist., Cuyahoga, 7/24/08).


Court Finds that DV Abuser Would Not Harm His Children: A trial court did not err in denying a grandmother custody of a child when it found that a father was a suitable parent. After the child’s mother died, the maternal grandmother sought custody of the child, arguing that, because of the father’s history of domestic violence, he was not a suitable parent. The court, acknowledging the impact and detriment that can occur as a result of a child being subject to domestic violence, found that the evidence did not indicate that the father would subject his children to domestic violence. Reaper v. James, 2009 WL 104613, 2009-Ohio-151 (4th Dist., Lawrence, 1/13/09).


Court Properly Issued order To Protect Child Despite Conflict With Illinois Visitation order

The court of appeals affirmed the domestic relations courts denial of respondents motion to set aside a DV CPO on the grounds that the Ohio court wrongly issued a (restricted) visitation schedule that conflicted with Illinois court custody and visitation orders. The Illinois court did not properly exercise jurisdiction over the visitation determination because the child had lived in Ohio since her birth, never lived in Illinois at any point in time, and Ohio had home state custody and visitation jurisdiction. The Ohio court was thus not obliged to afford full faith and credit to the Illinois court orders. Furthermore, even if the Illinois court orders had been found to be proper in this case, the Ohio court was still within its authority to issue the initial CPO because the mere existence of visitation orders in another state does not warrant the denial of a CPO when the child is subject to the threat of violence. While the CPO effectively restricted respondents visitation with his daughter, the chief purpose of the order was to protect the child. "In following such an order, the court acted within its discretion and fulfilled its duty to protect the citizens of the state." Ashburn v. Roth, 2007-Ohio-2995 (12th App. Dist., Butler, 6/18/07).


Keywords: parenting time UCCJEA interstate custody conflicting orders temporary emergency jurisdiction

Date: 3/27/2008



Mothers Shared Parenting Plan Denied and Visitation Rights Restricted Because of Boyfriends DV

The court of appeals affirmed the trial courts rejection of the mothers proposed shared parenting plan and the restrictions on her visitation rights with her children that had been imposed by the trial court in her divorce case. The trial court did not abuse its discretion where the mothers new live-in boyfriend had committed domestic violence and there was evidence of drug use in the home. The trial courts ruling was based on the safety, health, and best interests of the children. Bernard v. Bernard, 02-LW-0356, No. 00-CO-25 (Columbiana, 7th App.Dist., 1/20/2002).


Keywords: parenting time,companionship,joint custody

Date: 11/4/2002


Awarding Abuser Unsupervised Visitation

The court of appeals affirmed the trial courts decision despite the mothers claim that the trial court abused its discretion because it failed to include the parties child in the protection order, granted the father-abuser the opportunity to visit her without safety conditions, and excluded certain evidence at the hearing. The trial court properly excluded certain evidence of the husbands violent behavior during the marriage because it was cumulative and remote in time. Moreover, the record did not indicate any incidents of violence directed toward the child or contain any evidence demonstrating that visitation with the noncustodial parent would harm the child. Sabur v. El-Zant, Case No. 74525 (Cuyahoga 9/26/99).


Keywords: supervised

Date: 4/23/2002



Visitation orders

A court issuing a civil protection order must issue its own visitation orders, and may not make visitation dependent upon Children's Services approval. In any event, CPO orders concerning custody and visitation terminate by law 60 days after a divorce is filed. Elkins v. Elkins, 1992WL180118 (Franklin 1992).


Keywords: Children Services

Date: 4/23/2002



No Jurisdiction To Modify Prior Juvenile Court Visitation order

The trial court exceeded its jurisdiction by issuing a civil protection order that modified respondent's visitation rights from those contained in an earlier juvenile court order. When the petition for a civil protection order is filed with the common pleas court after the juvenile court has determined or has begun determining the allocation of parental rights, the common pleas court is without jurisdiction to modify that allocation. Stella v. Platz, Case No. 98CA18 (Washington 6/17/99).


Keywords: modify, jurisdiction, conflicting orders

Date: 4/23/2002



Protection order Can Block Visitation

Incident to the power to issue emergency protection orders to prevent domestic abuse, a court that lacks jurisdiction over custody matters still has the jurisdiction to enjoin a father from contacting his minor child who is in custody of the mother pursuant to a divorce decree. Such orders then may be modified by a court with juvenile or domestic relations jurisdiction, where "resolution of custody, visitation and permissible contact between parents and between parent and child can be evaluated and resolved in light of full information, including the information that led up to the issuance of the emergency protection order." Stuckey v. Stuckey (Colo. 1989), 768 P.2d 694. Accord: Pendleton v. Minichino, 7 Conn. Super. Ct. 492 (1992).


Keywords: deny, denial

Date: 4/23/2002



Court Issuing DV CPO Need Not Consider "best Interest" Custody Factors

Since there is an affirmative duty to protect children from harm, a mothers failure to protect her child from acts of violence by the childs stepparent constituted an act of domestic violence justifying the issuance of a CPO against her; trial court had jurisdiction to issue a CPO temporarily allocating parental rights and responsibilities despite existence of an earlier divorce decree which previously allocated parental rights and responsibilities; trial court doesnt have to consider "best interest factors" when issuing temporary civil protection order against parents. Couch v. Harrison, Case No. CA2000-08-063, 2001 Ohio App. LEXIS 651 (12th Dist., Clermont, 2/12/01).


Keywords: jurisdiction, permitting abuse, failure to protect

Date: 4/23/2002



CPO May Not Prohibit Abuser From Removing Child From Local Area Where Prior Juvenile Court Visitation order Contained No Such Restrictions

The court of appeals vacated the parties CPO to the extent that it limited the abusers visitation rights in an existing juvenile court visitation order by restricting the child to Washington County, Ohio, and Wood County, West Virginia, when they were in the abusers visitation rights, the only way for the mother to seek such a limitation on his visitation rights would be to seek that relief in the juvenile court. Stella v. Platz, Case No. 98CA18 (Washington 6/17/99).


Keywords: modify, jurisdiction, conflicting orders

Date: 4/23/2002



CPO May Implicitly Restrict Visitation

The court of appeals held that there is insufficient evidence of domestic violence to issue a CPO. However, if the wife had sustained her burden in order to obtain a domestic violence CPO, "the court below would have had discretion to order husband to stay away from the family or household members named in the temporary protection order [sic] and this order would have necessarily restricted visitation by implication" even though the Lake County Domestic Relations Court had determined or was determining the visitation rights relating to their minor child. Rush v. Rush, Case No. 74832 (Cuyahoga 11/18/99).


Keywords: modify, jurisdiction, conflicting orders

Date:  4/23/2002



Statute Does Not Require Issuance of CPO To Protect Other Children of Family Where One Child of Family Has Been Abused

The trial court properly dismissed appellants petition for a civil protection order on behalf of her children because evidence of abuse to the abusers child was insufficient to support the grant of a CPO to protect the petitioners own children. The domestic violence statute does not require the issuance of a CPO to protect the other children of a family where evidence indicates abuse to one child of that family. The petitioner must support her/his claims with evidence of either injuries or attempts to injure either her children or herself, in order to meet the requirements of the CPO statute. Parrish v. Parrish, Case No. 98CA2470 (Ross 11/18/00).


Keywords: protected person, protected persons

Date: 4/23/2002



No Jurisdiction To Modify Visitation Provisions In Divorce Temporary orders

The court of appeals held that the trial court issuing the domestic violence CPO had no jurisdiction to modify and stay the abusive husbands visitation rights provided for in the temporary orders entered in the parties divorce action. The court of appeals determined that the trial court lacked authority under R.C. 3113.31 (E)(1)(d) to enter any orders concerning those issues in the CPO even though it was the same judge who had issued the temporary orders in a divorce case and the subsequent CPO. Kiedrowicz v. Kiedrowicz, Case No. H-98-049 (Huron 4/9/99).


Keywords: conflicting orders

Date: 4/23/2002



Custodial Parent In Contempt For Obtaining TPO

Trial court found custodial mother in contempt of court for violating visitation orders by "apparently falsely obtaining a temporary protection order. Plaintiff [mother] never demonstrated a reasonable basis for obtaining the protection order." The trial court was also "concerned about plaintiffs reported visit(s) to the pediatrician to check for signs of sexual abuse." The TPO was issued in a criminal domestic violence case which was dismissed when the mother did not appear for trial, and resulted in father's loss of 33 days of scheduled visitation. The appellate court upheld the contempt finding. "The clear consequence of her volitionary act of gaining protective order was to deny visitation, in fact, to the father" (at 3). Spencer v. Spencer, Case No 17041 (Montgomery 12/28/98). Upon similar facts, a Maine appellate court remanded, requiring the trial court to find by clear and convincing evidence that the parent willfully misused the protection order process. Campbell v. Campbell, 604 A.2d 33 (Maine 1992).


Keywords: dismissal, backlash, punishing victim

Date: 4/23/2002



No Affirmative Defense To DV For Visitation Rights

The trial court erroneously gave a jury instruction outlining an affirmative defense based upon the right of a parent to exercise visitation rights with children by apparent analogy to R.C. 2919.23. This defense does not apply to visitation rights because it could allow one parent to physically harm another over visitation. State v. Streight, 2002 Ohio App. LEXIS 616 (Auglaize 2/14/02).



Date: 4/17/2002



Visitation Limitations Invalid

A probation condition prohibiting a domestic violence defendant from having any contact with his children for two years is invalid. State v. Brillhart (9th Dist. 8/24/98).



Date: 4/17/2002



Modification of Pick-up/drop-off Site To Safe Site

The trial court properly ordered the pick-up/drop-off of the parties child to be at the Hamilton Police Department station. There had been a prior domestic violence incident arising out of the exchange of the parties daughter. The court of appeals noted that a police station provides "safe harbor" and "provides an extra incentive for the parties to refrain from hostilities." (Note: The alleged abuser in this case was a police officer.) Heckel v. Heckel, Case No. CA99-12-214 (Butler 11/11/00).



Date: 4/17/2002



Court May order Supervised Visitation In CPO

Court of appeals overruled respondents assignments of error objecting to inclusion of supervised visitation order in a CPO of one years duration. Supervised visitation did not violate fathers constitutional right to due process or the legislatures intent regarding R.C. 3113.31. Brown v. Brown, Case No. 99AP-736 (Franklin 3/14/00).



Date: 4/17/2002



Visitation Altered By Protection order

Protection order that altered pickup and delivery points of children did not impermissibly modify divorce decree visitation rights of former husband, though he would be unable to contact former wife directly to arrange visitation as contemplated in the divorce decree. Steckler v. Steckler (North Dakota 1992), 492 N.W.2d 76.



Date: 4/17/2002



Protection order Proper Despite Shared Parenting

After father administered severe spanking to his son during his parenting time, a temporary protection order obtained by the mother in favor of the children was proper procedure, regardless of fact that parents had joint custody of the children. Ellibee v. Ellibee, 121 Idaho 501, 826 P.2d 462 (1992).



Date: 4/17/2002



No Forced Visitation With Mother's Murderer

Children's welfare found to outweigh parent's visitation rights, and Court decided that two teenage children should not be forced to visit their father, who was in jail for murdering their mother. The children opposed visitation as being too emotionally upsetting. In re Jergens, 1998 WL 336702 (Montgomery 1998)



Date: 4/17/2002



Four-year Prohibition On Contact With Children Is Excessive

The court of appeals vacated that part of felony domestic violence offenders community control sentence which requires him/her to stay away from his/her children for four years. Such an order is equivalent to a termination of parental rights, but the defendant was not offered the statutory and constitutional due process guarantees required in termination of parental rights cases. State of Ohio v. Sturgeon, Case No. C-000015 (Cuyahoga 11/22/00).



Date: 4/17/2002


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