Beekman v. Beekman

I join in the majority judgment, but write separately to make several points. I join the majority in overruling the third assignment of error. Appellee's method of taking physical custody of his son pursuant to the court's judgment was, as aptly noted by Judge Harsha in his concurring opinion, distasteful. However, I am not persuaded that such conduct rises to the level of reversible error.

The tenor of the first and second assignments of error is that the lower court erred in modifying custody/allocation of parental rights. Such a modification would be warranted in the cause sub judice if (1) there had been a change of circumstances, (2) the modification was in the best interest of the child, and (3) any harm likely to be caused by a change in environment is outweighed by the advantages. See R.C.3109.04(E)(1)(a). These are factual determinations to be made by the trial court and will be upheld on review by an appellate court so long as they are supported by some competent credible evidence. See Holm v. Smilowitz (1992), 83 Ohio App.3d 757,772-773, 615 N.E.2d 1047, 1056-1058; see, also, Yasher v.Yasher (Mar. 24, 1994), Cuyahoga App. No. 65545, unreported, 1994 WL 97694.

I concur with the majority insofar as they determine that there was sufficient evidence adduced below to establish those factors and modify custody. The expert opinion of Dr. Skillings was that the allegations of sexual abuse were completely unfounded and probably "fabricated by an adult near the children." The witness further opined that any parent who would attempt to manipulate a child in that manner has serious flaws. Testimony by another psychologist revealed that such manipulation would certainly be a "detrimental experience for a child, to be coached and manipulated into saying something about the other parent." I agree that all of this was sufficient for the lower court to find that the sexual abuse allegations were unsubstantiated. I also agree that this would be one factor to consider in deciding whether there had been a change of circumstances. However, I stop short of joining any suggestion in the principal opinion that this factorstanding alone would warrant modification of custody/allocation of parental rights.

This is an extremely sensitive topic. It is difficult to even imagine a more horrific crime in our society than the sexual abuse of one's own child. By the same token, it was noted by Dr. Hagen below that there is a significant percentage of false sexual abuse allegations made "in the course of contested custody disputes." This tactic for achieving a preferential posture for child custody is almost as despicable as the act itself. The trial courts must walk a fine line in dealing with these cases and I certainly can sympathize with the court below. However, the judicial system is not perfect and mistaken judgments of fact are not uncommon. I decline to join in announcing any rule of law which could potentially penalize a residential parent who makes an allegation of sexual abuse which might be true despite a lack of supporting evidence. It seems to me that this could have a "chilling effect" on the reporting of suspected sexual abuse. Residential parents may not want to risk losing custody if they can't prove their case, no matter how well founded that case may be.

Moreover, we need not even reach that point in order to find sufficient evidence of a change of circumstances. There was considerable testimony below that appellant has impeded appellee's visitation with the minor children and it is well settled that this is a factor to be considered as part of a change of circumstances allowing for custody modification. SeeHolm, supra 83 Ohio App.3d at 773, 615 N.E.2d at 1057-1058;Lenzer v. Lenzer (1962), 115 Ohio App. 442, 21 O.O.2d 67,183 N.E.2d 144; see, also, Well v. Well (1990), 70 Ohio App.3d 606,610, 591 N.E.2d 843, 845 (Harsha, J., dissenting); Grant v.Grant (July 21, 1989), Wood App. No. WD-88-29, unreported, 1989 WL 80951; Gordon v. Gordon (Oct. 9, 1987), Athens App. No. 1334, unreported, at 15-16, 1987 WL 18751. There was also evidence to indicate that the minor children had been instructed or encouraged to disobey and disrespect both their father and paternal grandparents. These factors, in addition to the unfounded allegations of sexual abuse, are enough to establish a sufficient change of circumstances to modify custody.