Ibrahim v. Ibrahim ( 2013 )

[Cite as Ibrahim v. Ibrahim, 2013-Ohio-5401.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Hanif Ibrahim, :
Plaintiff-Appellant, :
v. : No. 13AP-681
(C.P.C. No. 12DR-1670)
Sakhi Ibrahim, :
(REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on December 5, 2013
Elizabeth N. Gaba, for appellant.
Law Offices of Virginia C. Cornwell, and Virginia C.
Cornwell, for appellee.
Swope & Swope, and Kristy Swope, Guardian ad Litem.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
TYACK, J.
{¶ 1} Hanif Ibrahim is appealing from portions of his divorce decree. His counsel
assigns three errors for our consideration:
1. The trial court erred to the prejudice of Appellant in
awarding sole custody of Ishaq to Sakhi, placing no
restrictions on her relocation with the child, and forcing Hanif
to sign for a passport for Ishaq and requiring Hanif to agree to
Ishaq traveling with Sakhi out of the country, and in
particular to Dubai. This error is of Constitutional dimension.
It deprives Hanif of his right to association with his child and
to be free from a deprivation of substantive due process of law
in violation of Hanif's 1st, 4th, 9th and 14th Amendments
rights, and further deprives him of his rights to equal
protection of the courts in violation of the 1st and 14th
Amendments, and his rights under the Ohio Constitution. It
No. 13AP-681 2
deprives Ishaq for his right to association with his father and
to be free from a deprivation of substantive due process of law
in violation of Ishaq's 1st, 4th, 9th and 14th Amendments
rights, and further deprives him of his rights to equal
protection of the courts in violation of the 1st and 14th
Amendment, and his rights under the Ohio Constitution.
2. The trial court erred to the prejudice of Appellant in
awarding sole custody of Ishaq to Sakhi, placing no
restrictions on her relocation with the child, and forcing Hanif
to sign for a passport for Ishaq and requiring Hanif to agree to
Ishaq traveling with Sakhi out of the country, and in
particular to Dubai. This award to Sakhi, and lack of
restrictions on Sakhi were not supported by the evidence and
are not in the best interest of the child.
3. The trial court erred to the prejudice of Appellant in
awarding sole custody of Ishaq to Sakhi, rather than shared
parenting to both parties, on the basis that neither party had
filed a shared parenting plan. The parties filed an Agreed
shared parenting plan on June 14, 2012. To interpret the
statute otherwise is to permit the selective or discriminatory
enforcement of a Sec. 3109.04(A)(1), in violation of the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution as well as the Due Course of Law
Provision and Article I Section 16 of the Ohio Constitution. To
interpret the statute otherwise means that sec. 3109.04(A)(1)
is unconstitutional not just "on its face", but "as applied", both
for Hanif and Ishaq.
{¶ 2} Although the assignments of error are lengthy, they all turn on the same
question: Whether Hanif's ex-wife can be trusted to keep her residence with the couple's
one-year-old son, Ishaq, in this country.
{¶ 3} Hanif is afraid that his ex-wife is going to flee the country with the child
and, as a result, he will lose all contact with his son. The trial court addressed this issue at
length in the divorce decree:
Defendant Mother did testify that in an affidavit to the Court
on May 1, 2012, she was requesting sole custody of Ishaq and
leave of Court to return to Dubai. However, at trial she
testified that her intent is not currently to leave the United
States. She testified that she had a green card that allows her
to be in this country on condition of marriage, which expired
on March 31, 2013. Defendant Mother further testified that
she has an immigration attorney, and she is working with
No. 13AP-681 3
same to get the condition of marriage removed from her green
card so that she may stay in the United States. Defendant
Mother is confident that she will be allowed to stay in the
United States, and believes she has timely applied and is
requesting permission based upon abuse by a U.S. citizen and
her civil protection request.
* * * No credible evidence was presented that Defendant
Mother is a flight risk or that reasonable international travel
with Ishaq should not be permitted.
(R. 327, at 15-16, Decree of Divorce.)
{¶ 4} The trial court also addressed the issues of involving the child in more detail
elsewhere in the decree following the mandates of R.C. 3109.04:
VI. ALLOCATION OF PARENTAL RIGHTS AND
RESPONSIBILITIES
Although Plaintiff Father, in his April 17, 2012, Complaint for
Legal Separation, requested sole custody, or in the
alternative, Shared Parenting, Plaintiff's May 13, 2012 First
Amended Complaint, which requested divorce rather than
legal separation, contained no such request for shared
parenting. Defendant Mother's argument is that Plaintiff
Father's First Amended Complaint did not renew his original
request for Shared Parenting, and therefore, the Court may
not consider his request for Shared Parenting. Nonetheless,
the Court finds that the Plaintiff Father did not file a
Proposed Shared Parenting Plan, and therefore, any such
request for Shared Parenting will not be considered.
R.C. 3109.04(F) provides the statutory criteria for the court to
consider in the allocation of parental rights and
responsibilities. In a divorce, the court must allocate the
parental rights and responsibilities for the minor children
born as issue of the marriage. R.C. 3109.04(A).
The Court makes the following findings with respect to the
factors of R.C. 3109.04(F)(1):
A. "The wishes of the child's parents regarding the
child's care;" R.C. 3109.04(F)(1)(a).
Based upon Plaintiff Father's narrative testimony, he wants
sole custody of Ishaq, and is willing to work on 50/50 time
share of parenting time with the Defendant if she can stay in
No. 13AP-681 4
this country after March. However, as stated within his
Closing Statement, Findings and Facts and
Recommendations of Plaintiff, Plaintiff Father requested
shared parenting with equal parenting time by alternating
weeks for the next four years and then for the remaining
years, alternating two week periods with no provision for
holidays, vacations, or international travel.
Based upon her testimony, the Defendant Mother is
requesting sole custody so long as she resides within Ohio.
She is requesting a schedule of several day visits on
Wednesdays, and alternate Saturday and Sundays, as she has
concerns with the minor child having overnights with the
Plaintiff Father prior to the child being able to communicate
his needs. Plaintiff Mother's concern was aptly demonstrated
in her testimony concerning Ishaq's day visit with Father on
or about August 18, 2012, wherein Mother sent him in a clean
diaper marked with an "X" inside the diaper prior to the 10:00
a.m. scheduled parenting time. After the conclusion of
Father's parenting time at approximately 1:00 p.m., Mother
testified that Ishaq remained in the same diaper for this time
period as demonstrated by the presence of the "X" in the
diaper upon the child's returning home to her.
Defendant Mother also testified regarding what she perceived
as Plaintiff Father's determination to switch Ishaq to formula
while she was still breast feeding, despite her requests and
what she believes was the recommendation of Ishaq's
pediatrician. Defendant Mother also testified regarding a
time where Ishaq had to go to the emergency room for
projectile vomiting immediately after the conclusion of
Plaintiff Father's visit. On that occasion, according to
Defendant Mother, Plaintiff Father was reluctant to answer
the doctor's questions about what he had been feeding Ishaq.
Despite Defendant Mother's concerns about Ishaq's safety,
she has not denied Plaintiff Father parenting time.
During the pendency of the litigation, the parties have
engaged in a parenting schedule providing Plaintiff Father
parenting time with Ishaq every Tuesday and Thursday from
6:00 p.m. until 9:00 p.m. and every Saturday and Sunday
from 10:00 a.m. until 1:00 p.m. Defendant Mother proposes
an expanded schedule to include one overnight once Ishaq is
two years old, and once he reaches school age, she proposes
some slight additional time for Plaintiff Father.
No. 13AP-681 5
Although Defendant Mother has been Ishaq's primary
caregiver since birth, the schedule has allowed Ishaq to have
regular and frequent contact with Plaintiff Father. Plaintiff
Father testified that he repeatedly spoke to the Guardian ad
litem to request overnight visitation.
Plaintiff Father's parents, whose permanent residence is in
Pakistan, were staying with him at the time of trial. Plaintiff
believes that his parents are suitable caregivers for Ishaq
while he is at work. He would like Ishaq to have more time at
his house, with his parents watching Ishaq while he is at work.
However, Defendant Wife testified that due to concerns about
the age and medical conditions of the paternal grandparents,
she did not believe that they could properly care for the baby
without assistance from Plaintiff Father. Defendant Mother
believes that Ishaq's paternal grandmother is unable to lift
him at his current weight. Ishaq's paternal grandfather is in
failing health, and, according to Plaintiff Father, has been
diagnosed with cancer. Defendant Mother also indicated that
since neither grandparent drives or speaks English, she is
concerned about Ishaq in the event of an emergency.
Defendant Mother also expressed some concern about
paternal grandmother's use of anti-psychotic medication, but
it is not clear as to the extent of her psychological issues, if
any.
B. "If the court has interviewed the child in chambers
pursuant to division (B) of this section regarding the
child's wishes and concerns as to the allocation of
parental rights and responsibilities concerning the
child, the wishes and concerns of the child, as
expressed to the court;" R.C. 3109.04(F)(1)(b).
The Court did not conduct an interview of the child in
chambers, and neither parent requested an in-camera
interview.
C. The child's interaction and interrelationship with
his parents, siblings, and any other person who may
significantly affect the child's best interest; R.C.
3109.04(F)(1)(c).
Both parents gave testimony demonstrating that they are very
bonded to their child and show genuine love and affection for
Ishaq. Although Ishaq is only one year old, he has had the
opportunity to spend a good deal of time with both his
maternal and paternal grandparents. Ishaq's maternal
No. 13AP-681 6
grandparents have visited from Dubai, and his paternal
grandparents from Pakistan, are currently staying with the
Plaintiff Father. Defendant Mother does not have relatives in
the area, but she testified that she has made efforts to
establish a support system and network of friends, including
participating in "playgroups" with Ishaq, and joining
parenting and cultural groups.
D. The child's adjustment to the child's home, school,
and community; R.C. 3109.04(F)(1)(d).
Ishaq has been cared for at home since his birth with
Defendant Mother as the primary caregiver. Both parties
have residences located close to each other, within a few
minutes of the Gahanna police station. Defendant Mother
testified that Ishaq is well fed, well clothed and happy. Ishaq
is established with a pediatrician. Defendant Mother has
joined play groups and culture programs with Ishaq.
E. The mental and physical health of all persons
involved in the situation; R.C. 3109.04(F)(1)(e).
There are no health concerns evidenced in the record
regarding either child or their parents. Plaintiff Father
testified that he had concerns about scratches the child had on
his face alleging that the scratches were due to Defendant
Mother's failure to properly clip the child's nails.
F. The parent more likely to honor and facilitate
court-approved parenting time rights or visitation
and companionship rights; R.C. 3109.04(F)(1)(f).
The Court finds that the Defendant Mother is more willing to
honor and facilitate the Plaintiff Father's parenting time
rights. Defendant Mother testified that she did not always feel
that Plaintiff Father exercised the best care for their son
during his parenting time, but has continued to follow the
Court ordered parenting time. Defendant Mother has
continued her efforts to communicate to Plaintiff Father the
important information with respect to Ishaq including his
health, nutritional needs, and developmental milestones,
despite Plaintiff Father's self-serving rebuffs and critical
responses. Defendant Mother testified to a certain degree of
reluctance to allow parenting time in excess of the court
ordered time, recalling that she did not grant Plaintiff Father
additional parenting time as Plaintiff Father had requested
when his brother was in town. However, Mother further
No. 13AP-681 7
explained that she was unable to have the Guardian ad litem
verify this additional parenting time, and was concerned that
agreeing to additional parenting time without the Guardian ad
litem's knowledge and approval in advance, that Plaintiff
Father would claim that Defendant Mother failed to pick-up
the child. In light of Plaintiff Father's prior actions and
comportment, this refusal would be reasonable. Defendant
Mother also testified that she has been late a few times for the
exchanges, but has contacted the Plaintiff Father as soon as
the issue arose.
In contrast, significant testimony was presented that the
Plaintiff Father does not follow this Court's Orders. The
Plaintiff Father testified that he did not maintain the
Defendant Mother's health insurance, in violation of the
Court's Temporary Orders, and did not inform Defendant
Mother about the health insurance lapse. Yet, he maintained
dual health coverage for himself. At the time of trial, Plaintiff
Father had not yet taken the additional parenting classes he
was ordered to take six months earlier. Plaintiff Father also
testified that he did not remember if he turned over food
stamps to the Defendant Mother as he was required to do
pursuant to the Temporary Orders. He also testified that he
has not paid the medical bills associated with Ishaq's birth,
but further testified that he had paid some of his father's
medical bills.
Of further importance, Defendant Mother provided credible
testimony that Plaintiff Father is chronically late to the
parenting exchanges. Defendant Mother testified that he
blames his chronic tardiness on work conflicts, and traffic. It
is of great concern that Plaintiff Father does not take
responsibility for his actions as evidenced by Plaintiff Father's
evasive testimony and lack of credibility. Rather than take
responsibility for his actions, he consistently shifts the blame
to the Defendant Mother. He testified that he often leaves his
residence to return his child at 9:00 p.m., and that he is aware
that the exchange is 19 minutes from his house. When asked
if he was on time for exchanges, Plaintiff Father stated that he
has asked for the Guardian ad litem to move the exchanges to
6:30 p.m. (rather than the currently scheduled 6:00 p.m.) and
for overnight parenting time. He also deflected indicating
that Defendant Mother is 15-20 minutes late for exchanges.
His consistent lateness for a parenting time schedule that has
been in place since June 14, 2012, (as agreed) shows not only
an arrogance and disregard for the value of Defendant
No. 13AP-681 8
Mother's time, but a lack of insight as to how it negatively
affects his infant son to be made to regularly wait in a public
space or car for long periods of time without a valid basis. The
Plaintiff Father's chronic lateness in returning the child to
Defendant Mother is a further denial of Defendant Mother's
parenting time.
Plaintiff Father did testify that he has agreed to parenting
schedule changes in the past, citing an instance right before
Ramadan when the exchange was moved to an earlier 5:00
p.m. time.
G. Whether either parent has failed to make all child
support payments, including all arrearages, that are
required of that parent pursuant to a child support
order under which that parent is an obligor; R.C.
3109.04(F)(1)(g).
As of February 12, 2013, Plaintiff Father had a child support
arrearage in the amount of $4,279.65. See Defendants
Exhibit X. Based upon the parties' testimony, Defendant
Mother did not receive any financial support for the first five
months after Ishaq was born, and Plaintiff Father's meager
contribution consisted of one pack of diapers and several
outfits. However, Plaintiff Father testified that he is the sole
supporter of his parents whom live with him, and that they do
not contribute to his household expenses. Plaintiff Father
also testified that he has not fully paid the medical bills
associated with Ishaq's birth, but he has paid some of his
father's medical bills.
Further, Plaintiff Father applied for public assistance on
July 3, 2012, and misrepresented that his wife and son were
currently residing in his home. See Defendant's Exhibit Y.
Plaintiff Father's lack of financial support is further worsened
in light of Defendant Mother's testimony that her father
provided $20,000.00 to Plaintiff Father during the short
course of their marriage. Further, although the Magistrate
ordered Plaintiff Father to provide any food stamps to the
Defendant Mother, Plaintiff Father testified that he did not
recall whether or not he did so.
H. Whether either parent previously has been
convicted of or pleaded to any criminal offense
involving any act that resulted in a child being an
abused child or a neglected child; whether either
parent, in a case in which a child has been
No. 13AP-681 9
adjudicated an abused child or neglected child,
previously has been determined to be the perpetrator
of the abusive or neglectful act that is the bases of an
adjudication; whether either parent previously has
been convicted of or pleaded guilty to a violation of
section 2919.25 of the Revised Code involving a
victim who at the time of the commission of the
offense was a member of the family or household
that is the subject of the current proceeding, whether
either parent previously has been convicted of or
pleaded guilty to an offense involving a victim who at
the time of the commission of the offense was a
member of the family or household that is the subject
of the current proceeding and caused physical harm
to the victim in the commission of the offense; and
where there is reason to believe that either parent
has acted in a meaner resulting in a child being
abused or a neglected child; R.C. 3109.04(F)(1)(h).
No evidence was presented on this issue.
I. Whether the residential parent or one of the
parents subject to a shared parenting decree has
continuously and willfully denied the other parent
his or her right to visitation in accordance with an
order of the court; R.C. 3109.04(F)(1)(i).
This issue was previously addressed in subsection F. above.
J. Whether either parent has established a residence,
or is planning to establish a residence, outside the
state; R.C. 3109.04(F)(1)(j).
Plaintiff Father testified that he and Ishaq are U.S. citizens, a
focus that he emphasized throughout his testimony. Plaintiff
Father was born in Pakistan, and has family in Pakistan, India
and Dubai, United Arab Emirates (UAE). His parents have
their permanent home in Pakistan, but are currently staying
with the Plaintiff Father. Defendant Mother was born in
India, and has family in India and Dubai, UAE. Her parents
reside in Dubai, United Arab Emirates. Defendant Mother
testified that they first met online in October 2010 on two
arranged marriage web sites, and then met face-to-face in
December 2010 with Defendant Mother's father's permission.
Defendant Mother testified that Plaintiff Father seemed
settled and ready to start a family. She further testified that
she felt he was appropriate as a husband because he wanted
No. 13AP-681 10
his children to have an Islamic upbringing, was financially
able to care for her, and that he wanted to return to the
Middle East when the children were school age.
Defendant Mother testified that in December 2011 while she
was pregnant, that Plaintiff Father made threats of abduction.
They fought, and Plaintiff Father asked her to leave. He
threatened that if she tried to leave the United States with the
child, he would shoot her and run away.
Although these parties originally focused on a similarity of
their culture, it appears that there was much disagreement
about the practice of "confinement" wherein a woman, from
the time she is seven months pregnant until a minimum of 40
days after the child's birth, is in the care of her mother's
family. Defendant Mother testified that she would engage in
this traditional practice if she still lived at home. Defendant
Mother testified that she believed Plaintiff Father felt
threatened about this practice, so Defendant Mother's parents
decided to come to the U.S. Defendant Mother testified that
her parents came to the U.S. in January 2012 and rented an
apartment; on February 25, 2012, Plaintiff Father threw her
out of the house, and she moved into the apartment with her
parents. There were many attempts at reconciliation
including dinners at each other's houses and celebration of an
anniversary. Defendant Mother relayed in her testimony that
some days the Plaintiff Father was nice and sweet, and other
days he was rude and mad.
Defendant Mother did testify that in an affidavit to the Court
on May 1, 2012, she was requesting sole custody of Ishaq and
leave of Court to return to Dubai. However, at trial she
testified that her intent is not currently to leave the United
States. She testified that she had a green card that allows her
to be in this country on condition of marriage, which expired
on March 31, 2013. Defendant Mother further testified that
she has an immigration attorney, and she is working with
same to get the condition of marriage removed from her green
card so that she may stay in the United States. Defendant
Mother is confident that she will be allowed to stay in the
United States, and believes she has timely applied and is
requesting permission based upon abuse by a U.S. citizen and
her civil protection request.
Defendant Mother provided credible testimony that she
intends to remain in the United States, acknowledged Ishaq's
need for a relationship with his Father, and outlined her plan
No. 13AP-681 11
for supporting herself here. These plans include joining a
medical transcriptionist class, and ultimately completing her
residency to become a medical doctor. She also testified with
respect to the cultural groups, play groups and parenting
groups that she has participated in order to establish a
support system and further integrate herself and Ishaq into
the community. At the time of trial, no evidence was
presented that she was not legally in the United States or
under the threat of deportation. The Court finds Defendant
Mother's testimony to be credible. No credible evidence was
presented that Defendant Mother is a flight risk or that
reasonable international travel with Ishaq should not be
permitted.
Plaintiff Father did not present any evidence that he intends
to move outside of the state. Plaintiff Father testified
regarding his fears that the Defendant Mother would move
outside of the United States and further testified as to what he
perceived as the likelihood that Defendant Mother was going
to take Ishaq and leave the United States and go to countries
which may not be signatories to the Hague Convention. In his
testimony, Plaintiff Father admitted that when Defendant
Mother returned to her apartment from the hospital after
Ishaq's birth rather than return with him to his residence, he
considered such an act as "child abduction" even though
Plaintiff Father actually drove Defendant Mother and Ishaq to
Defendant Mother's apartment. Plaintiff Father also admitted
upon cross-examination that he has placed alerts with the
U.S. Department of State and Interpol, Center for Missing
Children, the U.S. passport office indicating that his child is at
risk of being abducted. In order for the Defendant Mother to
be able to travel internationally with Ishaq, Plaintiff Father
would have to remove any existing barriers to international
travel he has initiated, both in the United States and abroad,
and refrain from initiation any new obstacles to Ishaq's travel.
In addition to abduction alerts to state and international
agencies, the Plaintiff Father also admitted that he contacted
U.S. Immigration, and testified that he told immigration
officials that his marriage was a sham, and that Defendant
Mother only married him for a green card. Plaintiff Father
also testified that he destroyed Defendant Mother's green
card, and other forms of her identification. Plaintiff Father
reiterated to this Court on many occasions that he was a
naturalized citizen, and clearly believes that this designation
provides a basis for him to obtain sole custody of this child.
Plaintiff Father's actions further indicate that he believes
No. 13AP-681 12
Defendant Mother should be deported. During the marriage,
there was significant conflict about Defendant Mother's
identification, particularly her green card which documented
that she was legally within the country. Defendant Mother
testified that she was often asked to leave the marital
residence, but that Plaintiff Father would not provide her with
her identification when she asked for it.
K. Other Relevant Evidence
1. Communication between the Parents: Defendant Mother
has continued attempts to communicate with Plaintiff Father
despite Plaintiff Father's physical and emotional abuse.
Plaintiff Father clearly rebuffs Defendant Mother when she
attempts to relay pertinent information as to Ishaq. It
appears that Plaintiff Father's sole focus is Defendant
Mother's lack of citizenship and his anger at her, rather than
providing a conducive environment of respect to encourage
Defendant Mother to openly engage with him and facilitate
co-parenting. Plaintiff Father simply cannot cooperate with
Defendant Mother despite her on-going efforts to do so. It is
incumbent upon Plaintiff Father to reconsider the effects of
his behavior upon his child, as well as the effects upon his
parenting time. Clearly, Plaintiff Father has the ability to
encourage the sharing of love, affection, and contact between
the child and the other parent, but it is unclear if he is willing
to do so.
Plaintiff Father testified that he does not want to continue to
exchange Ishaq at the Gahanna Police Station, yet Defendant
Mother testified with regard to Plaintiff Father's erratic
behavior at exchanges, including telling people in the parking
lot that this was an international abduction case. Defendant
Mother also testified that at a recent exchange that when
Ishaq began to cry that Defendant Mother attempted to
comfort Ishaq by patting his head and speaking to him,
Plaintiff Father smacked Defendant Mother's hand away.
2. Any history of, or potential for, child abuse, spouse abuse,
other domestic violence or parental kidnapping by either
parent:
In his narrative testimony, Plaintiff Father made several
allegations that Defendant Mother falsified a lot of
information, but he was not specific as to what she falsified
other than the Defendant Mother had filed a petition for a
civil protection order (which was granted). He also testified
No. 13AP-681 13
that there had been an abduction threat, but he failed to
present any evidence to support this perception. In fact,
Plaintiff Father was often evasive and not credible during
much of his testimony.
Defendant Mother testified as to Plaintiff Father's controlling
behaviors. She testified that she felt as though she was "under
house arrest" – stating that Plaintiff Father controlled
everything including finances, phone, computer, and car keys.
During the marriage when Defendant Mother was still living
with the Plaintiff Father, and his parents were also residing
there, Defendant Mother testified that Plaintiff's father kept
the house keys and his mother kept the car keys if Plaintiff
Father was not present. Defendant Mother testified that she
had no access outside the house unless a neighbor took her
out, which was rare. She also testified that Plaintiff Father
would often tell her to leave the house, and she would ask for
her identification, and Plaintiff Father would refuse to provide
same. Plaintiff Father continually accused Defendant Mother
of marrying for a green card.
Defendant Mother testified that Plaintiff Father physically
abused her on two occasions during the marriage. Defendant
testified that August 28, 2011, was the first time Plaintiff hit
her. He threw her laptop, pushed her against a wall and told
her to leave. On January 20, 2012, Defendant Mother
testified that Plaintiff Father asked for her passport, and she
asked for her green card in return. He began screaming at
her, hit her, slapped her, and pushed her on the bed. She
recalled that he was screaming at her that her father would
not give him the money he had requested. At this time she
was 30 weeks pregnant, and she was sent to the hospital for
observation.
3. Recommendation of the guardian ad litem of the child: The
Guardian ad litem issued her interim recommendation and
report on February 20, 2013. She participated in the trial of
this matter, and was available for cross-examination, yet
neither party called her to testify. She filed her Final Report
and Recommendation of Guardian ad Litem on March 29,
2013. The Court has thoroughly reviewed each report and
recommendation.
In Plaintiff Father's narrative testimony, he testified that he
felt that the guardian ad litem was too biased.
(R. 327, at 6 – 19, Decree of Divorce.)
No. 13AP-681 14
{¶ 5} Turning to the individual assignments of error, the facts alleged in the
assignment of error do not correspond with the provisions of the decree set forth above.
{¶ 6} Divorce and ancillary custody actions are purely matters of statute. Shively
v. Shively, 10th Dist. No. 94APF02-249 (Sept. 22, 1994), citing State ex rel. Papp v.
James, 69 Ohio St. 3d 373, 379 (1994). In such actions, domestic relations courts have
jurisdiction, as statute confers and limits it, to allocate parental rights and responsibilities
for the care, custody, and control of a child. Id.; see R.C. 2301.01; R.C. 3105.03, 3105.21,
and 3109.04. In reviewing statutes, we are obligated "to give effect to the words used and
not to insert words not used." In re James, 113 Ohio St. 3d 420, 2007-Ohio-2335, ¶ 13.
{¶ 7} The first assignment of error alleges that the trial court erred and deprived
Hanif of his right to association with his child, his right to substantive due process, and
his right to equal protection, as well as depriving Ishaq of the same rights.
{¶ 8} Initially we address Hanif's presumption to be asserting the constitutional
rights of Ishaq in this appeal. Ishaq was a party to this divorce having been appointed a
Guardian ad Litem and had a right to file an appeal in this case. Schottenstein v.
Schottenstein, 10th Dist. No. 00AP-1088 (Nov. 29, 2001). An appellant cannot raise an
issue on another's behalf, especially when that party could have appealed. In re D.T., 10th
Dist. No. 07AP-853, 2008-Ohio-2287, ¶ 8. Hanif has no standing to appeal on behalf of
Ishaq in this appeal.
{¶ 9} In reviewing the trial court's decision, we are guided by a presumption that
the trial court's findings are correct. The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge that "the trial judge is best able to view
the witnesses, observe their demeanor, gestures, voice inflections, and use these
observations in weighing the credibility of the proffered testimony." Griffin v. Twin
Valley Psychiatric Sys., 10th Dist. No. 02AP-744, 2003-Ohio-7024, ¶ 28.
{¶ 10} The trial court heard the actual testimony from Sakhi and found her
credible. Based upon the testimony presented in open court, the trial court judge
concluded that Sakhi was not going to flee the country with the child. The trial court
judge also concluded that Sakhi believed that Hanif should be involved in raising the
child.
No. 13AP-681 15
{¶ 11} We are not in a position to overturn that set of factual findings by the trial
court judge. Given those factual findings, Hanif will not lose access to the child.
{¶ 12} The first assignment of error is overruled.
{¶ 13} The second assignment of error argues the trial court, in awarding sole
custody of Ishaq to Sakhi without restrictions, was not in the best interest of the child and
was not supported by the evidence.
{¶ 14} "Judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by a reviewing court as being
against the manifest weight of the evidence." C. E. Morris Co. v. Foley Const. Co., 54 Ohio
St.2d 279, 280 (1978). The in-court testimony of Sakhi constituted competent credible
evidence to support the trial court's orders. Hanif's fears are understandable, but his fears
do not outweigh the testimony of his ex-wife which was found to be credible by the trial
court judge.
{¶ 15} Further, the trial court addressed the issue of international travel directly
and implemented a number of procedures and restrictions to ensure that the child would
be allowed to reasonably travel. These procedures include requiring written consent for
travel to be obtained from both parents, having the Guardian ad Litem hold Ishaq's
passport when not in use, and requiring the non-traveling parent to take all actions
necessary to facilitate the travel. (R.327, at 26-27 Decree of Divorce.) It is evident that
the trial court attempted to address the fears of Hanif but at the same time not hinder
Ishaq, who no doubt would benefit from international travel with much of his extended
family abroad, whose best interest the trial court is obligated to uphold.
{¶ 16} The second assignment of error is overruled.
{¶ 17} The third assignment of error argues the trial court erred in awarding sole
custody rather than shared parenting to both parties, on the basis that neither party had
filed a shared parenting plan.
{¶ 18} "The discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and the impact the court's
determination will have on the lives of the parties concerned. The knowledge a trial court
gains through observing the witnesses and the parties in a custody proceeding cannot be
conveyed to a reviewing court by a printed record." Miller v. Miller, 37 Ohio St. 3d 71, 74
No. 13AP-681 16
(1988). A trial court's discretion in custody matters is broad but must be guided by the
language set forth in R.C. 3109.04. See Baxter v. Baxter, 27 Ohio St. 2d 168 (1971). The
trial court's decision must not be reversed absent an abuse of discretion. Davis v.
Flickinger, 77 Ohio St. 3d 415, 418 (1997).
{¶ 19} The failure of the parties to file a shared parenting plan does not ultimately
decide the issue. The communication problems between the parties were enormous.
Hanif was not paying his child support, leading to an arrearage of over $4,000 on a child
who was less than two-years old. The visitation schedule had been a problem with Hanif
not showing up on time. Their attitudes toward each other were so bad that transfer of
the child occurred in a police station so it could be recorded.
{¶ 20} The mother was breastfeeding and had been the primary caregiver for the
child. If there were no shared parenting, she would be the likely residential parent. Given
the communication problems and other problems between the parties, shared parenting
was not in the best interest of anyone. We find that the trial court did not abuse its
discretion in naming Sakhi the residential parent and legal custodian, subject to the
parenting time of Hanif as determined by the court.
{¶ 21} The third assignment of error is overruled.
{¶ 22} All three assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed.
Judgment affirmed.
DORRIAN and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under the authority of Ohio
Constitution, Article IV, Section 6(C).
DORRIAN, J., concurring.
{¶ 23} Having carefully reviewed the transcript, I would concur with the majority
and would affirm the trial court. I would also note that the transcript reveals that
appellant, not appellee, threatened abduction. The appellee testified that appellant told
her, "if you ever try to leave with [the baby], I will just shoot you and I will take him and I
will run away within the United States." Appellee further testified that appellant told her
No. 13AP-681 17
"the United States is a big place and children go missing all the time and nobody would
ever find him." (Tr. Vol. II, 63.)