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Ruling Too Dismissive of Right to Parent

By Marianna Brown Bettman · June 13th, 2007 · Legally Speaking
Child custody cases are always among the most wrenching cases courts are called on to decide. A sharply divided Ohio Supreme Court just issued a troubling decision involving a child named Brayden James.

It's a case that pits grandparents against parents. The case came to the high court from Hamilton County.

When Brayden James was 8 months old, his father, Damon James, was charged with an incident of domestic violence involving Brayden. Brayden and his mother, Jamie James, began staying with Jamie's parents, Cynthia and Rick Hutchinson.

The Hamilton County Department of Job and Family Services got involved. The agency filed a complaint in juvenile court, which found that Brayden was abused and dependent. At this point, all parties agreed that it was in Brayden's best interest to be placed with his maternal grandparents, the Hutchinsons. Still, a parental reunification plan remained the overarching goal in the case.

About a year later, at an annual review, Jamie and Damon agreed that the Hutchinsons should have legal custody of their son. Legal custody does not divest parents of their right to regain custody of their children. In order to meet the requirements of the court's reunification plan, Jamie and Damon participated in therapy, counseling and parenting classes. They had supervised visitation with their son. They paid child support to the Hutchinsons.

About three years after they had agreed to give legal custody of Brayden to the Hutchinsons, Damon and Jamie petitioned the Juvenile court, arguing that it was then in Brayden's best interest to be returned to them. In July 2004 the juvenile court agreed and returned Brayden to his parents.

The case could have ended there, but it didn't. The Hutchinsons appealed the juvenile court decision. They argued the court used the wrong standard and was wrong to return Brayden to his parents.

What has to be proven to show that a change of custody is warranted? That is what was involved in the appeal of this case.

Jamie and Damon relied on some past cases from the Ohio Supreme Court to argue that all they needed to prove was that a change in custody was in Brayden's best interest.

The Hutchinsons, by contrast, relied on statutes that state that, before any change in custody can be ordered, in addition to the best interest of the child there had to be a change in the circumstances of the child, parents or the legal custodian. Since Brayden's parents had failed to prove any change in circumstances, they argued, there should not have been a custody change.

Our local court of appeals, in an opinion written by Judge Mark Painter, found that statutory language requiring parents to prove a change in circumstances to regain custody of their child from a non-parent unconstitutionally infringed on the parents' rights to raise their children. The appeals court held the juvenile court was correct in applying only the best-interest-of-the child test and in returning Brayden to his parents on that basis.

The Ohio Supreme Court disagreed both with the juvenile court and the appeals court. In a 4-3 decision authored by Justice Terrence O'Donnell, the court agreed with Brayden's grandparents that, before a child custody order can be changed, the law clearly and constitutionally requires both a change in circumstances of the child, parents or custodian and that the change is in the best interest of the child. The General Assembly, as the policy-making body, has the right to enact such a requirement, O'Donnell wrote. Such a law is constitutional in that it is designed to "provide stability in the life of a child." Because the juvenile court did not require the Jameses to prove the change-in-circumstances necessary for a change in custody, its decision had to be reversed.

Justices Paul Pfeifer and Evelyn Stratton each wrote a dissent.

Part of each dissent is a technical one, criticizing the majority for basing its decision on the change-in-circumstances language of a domestic relations statute that does not apply to a case between parents and non-parents. That law, which deals with the allocation of parental rights, involves fights between parents in divorce court over custody changes. The dissenters seem correct on this point of law; but because there is also identical language in a statute which clearly does apply to juvenile court custody disputes between parents and non-parents, this point does not carry the day.

The true disagreement in this case is that Pfeifer and Stratton place more emphasis on the fundamental constitutional right of parents to raise their children as they see fit, while the majority sees custodial stability as paramount.

It was very significant to O'Donnell that Brayden had been adjudicated abused and dependent and that his parents had voluntarily given up custody of him. To Pfeifer, by contrast, "The majority opinion's concern for stability in the lives of children is noble, but it should not trump the fundamental 'liberty interest of natural parents in the care, custody, and management of their child, which does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.' "

Stratton agreed with the appeals court that the statute was unconstitutional as applied in this case. But she also argued the parents had met any statutory change-of-circumstances test by their successful completion of all that was required of them by the court, demonstrating their ability to be reunited with their child.

The high court's majority found the change-in-circumstances requirement was not unconstitutional because it encouraged stability in the lives of children.

But does it? Brayden has lived with his parents since July 2004. He now has a brother. His parents are now homeowners. They did everything the courts asked of them during their time of trouble in order to regain custody.

While I find it admirable that Brayden's grandparents stepped in during a time of crisis and kept Brayden out of foster care, I find a rigidity to the majority opinion that fails to appreciate the fundamental parental right to raise their children -- especially parents who have demonstrated they deserve another chance.

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.


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