Parents vs. Non-Parents in Ohio Child Custody Actions

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Parent versus Non-Parent actions generally present themselves when either one parent dies, is incapacitated, or is otherwise unable to fulfill their parental duties.  The easiest way to prevent these actions, or at least to prepare for them, is to include a provision in one’s parenting plan providing that upon the death or incapacity of one of the parents, custody shall vest in the other parent.  Unfortunately, many parenting plans do not provide for such, which can lead to contentious litigation between parents and non-parents (in most case grandparents) in custody actions.

A discussion of the applicable law pertaining to situations wherein a parent is against a non-parent in a contested custody action is as follows:

In In re Perales (1977), 52 Ohio St.2d 89, the Ohio Supreme Court held that: “parents may be denied custody only if a preponderance of the evidence indicates abandonment, contractual relinquishment of custody, total inability to provide care or support, or that the parent is otherwise unsuitable that is, that an award of custody would be detrimental to the child.” Perales at 98.

In In re Davis, Mahoning App. No. 02-CA-95, 2003-Ohio-809, the child’s father appealed an award of custody to the maternal grandmother upon a finding that an award of custody to the father would be detrimental to the child. There, the court relied upon its decision in In re Lowe, Columbiana App. No. 00-CO-62, 2002-Ohio-440, wherein it found that under the suitability test, “[s]imply because one situation or environment is the better situation does not mean the other is detrimental or harmful to the child.” Davis at ¶ 12, quoting Lowe at ¶ 9, citing In re Porter (1996), 113 Ohio App.3d 583, 589. Additionally, the Davis court noted that the United States Supreme Court previously held a Washington statute unconsititutional where it permitted “any person to petition a court at any time for visitation whenever visitation could serve the best interest of the child.” Davis at ¶ 14, citing Troxel v. Granville (2000), 530 U.S. 57; Wash. Rev.Code 26.10.160(3).

In discussing Troxel, the Davis court stated: “Importantly, the court highlighted the fact that no lower court had found the parent in that case unfit. The court stated, ‘[t]hat aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children.’ [Troxel] at 68. The court continued, stating, ‘so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.’ Id. at 68-69. The court also opined, ‘the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made. Troxel, 570 U.S. at 72-73.” Davis at ¶ 5.

Relying upon those principles discussed in Troxel, the Davis court found that just because the child would have a period of adjustment if she moved from her grandmother’s residence to her father’s residence, that did not mean that it was detrimental for her to be raised by her father (emphasis added). Davis at ¶ 29. In reaching the conclusion that the obvious transitional issues of moving from one home to another (i.e. change of home, school, community, friends) did not support the type of detriment contemplated in Perales, the Davis court noted that other courts that found an award of custody to a parent detrimental found serious problems with the unsuitable parent. Id. at ¶ 27.

Specifically, the Davis court noted the following cases where serious problems supported findings of parental unsuitability: “In re Medure, 7th Dist. No. 01 CO 03, 2002-Ohio-5035 (children distrusted the parent; parent verbally and physically abused the children, including hitting them with ropes; parent did not keep adequate supplies of food at home); In re Adams, 9th Dist. No. 01CA0026, 2001-Ohio-1652 (parent was incarcerated for three months after child was born; parent currently on probation in two counties; parent had disorderly conduct charges pending against him; parent had not paid child support for some time; parent had failed to use a car seat when transporting child; parent was unable to secure a stable home or lasting employment); Slivka v. Sealock (May 18, 2001), 5th Dist. No. 00-CA-13 (parent made statements that she wanted child back because she always wanted three children and, if child was not returned to her, she would just get pregnant again; parent had history of psychological and behavioral problems; parent’s husband had domestic violence conviction); Reynolds v. Ross Cty. Children’s Services Agency (1983), 5 Ohio St.3d 27, 448 N.E.2d 816 (psychologist and psychiatrist testified they believed oldest child’s allegations of sexual abuse by parent and that the children were afraid of being returned to the parent).” Id. at 127.


The Court further examined its Perales decision in Masitto v. Masitto (1986), 22 Ohio St.3d 63, 488 N.E.2d 857. In Masitto, a child, Stacy, was born to Christine and Louis. Christine suffered severe brain damage during child birth and subsequently required constant care. Several years later, Louis signed an agreement consenting to the appointment of Stacy’s maternal grandparents as her joint guardians. He then filed for a divorce from Christine. The divorce decree did not use typical custody-awarding language, but instead referred to the guardianship status of the grandparents and established Louis’s visitation rights with Stacy. Several years later, Louis filed a motion for change of custody. The trial court denied Louis’s motion finding that it was in Stacy’s best interest to continue to live with her grandparents. The court of appeals reversed, on the basis that, in a custody dispute between a parent and a nonparent, the trial court must first find the parent unsuitable before it can award custody to the nonparent. The grandparents appealed.

The Supreme Court framed the issue as: “whether it is contrary to law for a trial court to proceed under the `best interest of the child’ test enunciated in R.C. 3109.04 when the parent requesting a change in custody has previously consented to the appointment of the child’s grandparents as her guardians.” Id. at 65. The Court acknowledged that the general rule regarding original custody awards in disputes between a parent and nonparent is that parents who are suitable have a paramount right to the custody of their children unless they forfeit that right. Id., citing Perales, 52 Ohio St.2d at 97. But it also stated that once an original custody award has been made, the general rule is that the award will not be modified unless necessary to serve the best interest of the child. Id.

The Court considered the agreement Louis entered into with the grandparents. It found that not only did he consent to having his child be under the grandparents’ care, he also consented to the agreement to their being appointed her legal guardians, and later consented to a divorce decree that incorporated his agreement to leave his daughter in her grandparents’ care. Id. at 66. The Court concluded that by consenting to the agreement and the divorce decree, Louis forfeited his natural rights to custody of his daughter, making the child’s best interest the appropriate test for a change in custody. Id. The Court also noted an additional factor that it considered – the guardianship status of the child could not have existed unless the probate court found that the natural parents were unsuitable to have the custody of the child or whose interests, in the court’s opinion, would be promoted thereby. Id. Thus, the Court determined that Louis relinquished his natural rights to custody. It concluded that the prior agreement was an original award of custody to a guardian, the modification of which requires satisfaction of the child’s best interest. Id. at 67.

More recently, in In re Hockstok, 98 Ohio St.3d 238, 781 N.E.2d 971, 2002-Ohio-7208, the court examined whether, in a child custody case arising out of a parentage action between a parent and a nonparent, a trial court must make a parental unsuitability determination on the record before awarding legal custody of the child to the nonparent. The Hockstok case originated when the mother, Jennifer Gorslene, filed a complaint in the juvenile court to establish her child’s paternity. Paternity was established and the court designated Gorslene as the child’s residential parent. Soon thereafter, Gorslene’s father and stepmother, the Hockstoks, filed a motion to be made parties to the action so they could assert custodial rights to the child. The court granted the Hockstoks’ motion and found that it was in the child’s best interest to grant temporary custody to them. Gorslene and the Hockstoks subsequently entered into an agreement whereby the Hockstoks assumed temporary custody of the child for six months to give Gorslene time to create a stable living environment for her child. When the six months expired, the parties agreed to extend the period of temporary custody for another six months. Before the expiration of the six-month period, Gorslene filed a motion to terminate the Hockstoks’ temporary custody and regain custody of her child. The Hockstoks then filed a motion requesting legal custody of the child. The matter proceeded to a hearing. The court adopted the magistrate’s decision applying the best interests test and granting the Hockstoks legal custody of the child. Gorslene failed to appeal this decision.

Ten months later, Gorslene filed a motion for the reallocation of parental rights. The magistrate again applied the best interest test in recommending that the Hockstoks retain custody. Gorslene objected arguing the magistrate was first required to determine whether she was a suitable parent. The trial court, in adopting the magistrate’s decision, denied Gorslene’s motion. Gorslene appealed.

The court held that in a child custody case arising from a parentage action between a parent and a nonparent, the trial court must make a parental unsuitability determination on the record before awarding the child’s legal custody to a nonparent. Id. at the syllabus. On appeal, the Hockstoks argued that Gorslene failed to appeal the original grant of legal custody to them thereby constructively forfeiting her right to custody, and therefore, the court did not err in applying the best interest test. The court disagreed, finding that no evidence existed that Gorslene ever agreed to give the Hockstoks legal custody of her child.

The Court also reexamined Masitto, supra. It re-emphasized that the general rule in Ohio, as codified in R.C. 3109.04(B)(1) and (E)(1)(a), is that once an original custody award has been made, that award will not be modified unless necessary to serve the best interest of the child. Hockstok, 98 Ohio St.3d at ¶21, citing Masitto 22 Ohio St.3d at 65.

Finally, the 7th District Court of Appeals examined a custody dispute between a parent and a nonparent in In re Davis, 7th Dist No. 02-CA-95, 2003-Ohio-809. Davis began as a paternity action. Once paternity was established, James Price, the father, consented to the mother, Ieshia Davis, being the child’s residential parent. Davis’s grandmother, Phyllis Carwell, helped Davis care for the child. However, one day Davis left and never returned, leaving the child in Carwell’s care. Upon learning Davis had left, Price filed a motion for custody. The court granted Carwell temporary custody pending a hearing. The juvenile court, while not expressly stating it had done so, applied the best interest test and concluded that the transfer of custody from Carwell to Price was not appropriate at the time. Price appealed arguing that the juvenile court should have granted him custody unless it found him to be unsuitable.

The court noted that at the time of the hearing, Carwell only had temporary custody of the child. Therefore, the juvenile court was faced with an original custody determination between a parent and nonparent. The court then emphasized parents’ fundamental right to raise their children as long as they are deemed suitable under the Perales test. It concluded that the juvenile court erred in applying the best interest test instead of the suitability test and, since the evidence demonstrated that Price was a suitable parent, reversed the lower court’s judgment.

These cases all express that when a court is faced with an original custody action between a parent and a nonparent, the court must award custody to the parent unless it finds the parent to be unsuitable (emphasis added).


Even though grandparents will not be able to obtain custody unless they show the parent to be unfit, they may still have a right to visitation and companionship under Ohio law.

Ohio has authorized grandparent companionship or visitation rights by statute in three circumstances: (1) when married parents terminate their marriage or separate; (2) when a parent of a child is deceased; or (3) when the child is born to an unmarried woman.


Parent versus non-parent cases are some of the most difficult and contentious cases to deal with.  Absent the showing of unfitness a non-parent has almost an impossible standard to meet.  Above all, at the end of the day, the court and the non-parents still have to realize that a “Father is a Father” and a “Mother is a Mother,” and a parent (absent neglectful or abusive actions) should be a parent.