In Re Markham

I concur with the judgment of reversal found in the principal opinion, but dissent from its holding awarding custody as a matter of law to the appellant. I would reverse and remand for further proceedings as explained below.

Concerning the first assignment of error, it is apparent to me that the trial court did not consider all the relevant factors which determine the child's best interest in this case. The Findings of Fact and Conclusions of Law fail to make any mention of the evidence presented upon the issue of appellee's extremely uncooperative nature concerning visitation and reasonable phone calls by the children's mother. R.C.3109.04(C)(3) requires the trial court to consider this harmful conduct when determining the children's best interests. InPorter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O.2d 260,267 N.E.2d 299, the Ohio Supreme Court recognized that thechildren have a right to visitation and the associated love, companionship and training that accompany this interaction between parent and child. The child's right is independent of and in addition to that of the noncustodial parent. While the best interest of a child may still require placement with an uncooperative parent given the totality of the circumstances involved in any particular case, in this instance it was an abuse of discretion to make such a determination without consideration of this highly detrimental conduct by appellee.

Furthermore, while I agree that appellee's conduct of remaining in Florida in order to prevent the children's mother from having physical contact with them is also a negative factor to be considered by the trial court in applying the best interest test, I would not characterize it as "kidnapping." Nor would I hold that it requires placement with the mother as a matter of law. It is simply another relevant factor to be considered by the court and addressed in its Findings of Fact and Conclusions of Law.

Lastly, I do not believe the trial court abused its discretion in giving weight to appellee's "normalized" life style. Surely this court, which has no chance to observe the demeanor of witnesses or to ask them pertinent questions, should not enter into determinations of sincerity and credibility.Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846,849.

However, based upon the trial court's failure to consider the evidence of appellee's improper conduct concerning visitation and physical contact by appellant with her children, as evidenced by its failure to make findings of fact on this issue and others set forth in R.C. 3109.04(C), I would sustain the first assignment of error and remand the case to the trial court.

I further agree that appellant's second assignment of error should be sustained. Appellant did not specifically object to the trial court's failure to record the interview. However, I believe it is plain error within the provisions of Evid.R. 103(D) to allow an in camera interview of the parties' minor children without at least transcribing a record of the interview. Notwithstanding the trial court's characterization of the incamera proceeding, the lack of a record prevents effective appellate review of the entire custody issue. See Walker v.Walker (1974), 40 Ohio App.2d 6, 69 O.O.2d 3, 317 N.E.2d 415. This matter should be reversed and remanded for a new hearing on the issue of custody only.