DocketNumber: APPEAL NO. C-971041, TRIAL NO. A-9108214
Judges: Bettman, Doan, Painter
Filed Date: 1/29/1999
Status: Precedential
Modified Date: 10/19/2024
Plaintiff-appellant Michael Gaffney appeals the order of the domestic relations court adopting the magistrate's decision to grant grandparent visitation to his parents, Eugene and Marjorie Gaffney ("the Grandparents"). He brings one assignment of error.1
The record indicates that when Gaffney and Elizabeth Menrath2 were divorced in April of 1992, Gaffney was designated the residential parent of the couple's two minor children. Pursuant to an agreement reached by the parties, Menrath was granted visitation with the children. The Grandparents enjoyed frequent and regular visitation with the children until 1995, when Gaffney remarried and created a blended family consisting of his children and those of his new wife. The parties agree that, after Gaffney's remarriage, the relationship between Gaffney and the Grandparents became strained. Gaffney testified that the relationship deteriorated because his parents did not accept his decision to remarry or to include his stepchildren in family outings. The relationship between Gaffney and the Grandparents further deteriorated in 1996 when Gaffney decided not to attend a family Easter function. Following that incident, the Grandparents had infrequent visitation and interaction with the children. When the Grandparents did have visitation, it was because Menrath shared her visitation time with the Grandparents. Despite *Page 115 reconciliation attempts, Gaffney and the Grandparents neither reconciled nor reached a mutually satisfactory agreement about visitation.
Pursuant to R.C.
In his sole assignment of error, Gaffney contends that the domestic relations court erred in granting visitation to the Grandparents. Specifically, Gaffney argues that the order impermissibly impinges upon his common-law and constitutional rights of parental autonomy, is not in the best interest of the children, and violates public policy. While Gaffney's assignment of error is not well taken, it is far from frivolous, as Grandparents would have us declare.3 Because his arguments are interrelated, we consider them together.
Gaffney correctly asserts that, at common law, grandparents had no right of access to, or constitutional right of association with, their grandchildren. In re Martin.4 Nevertheless, the Ohio General Assembly, an acknowledged source of public policy, has clearly spoken on this issue. The legislature has created a statutory right of grandparent visitation.
Initially, the General Assembly authorized nonparent visitation by permitting visitation rights to "any person" having an interest in the welfare of the child. In re Whitaker.5 Since Whitaker, the legislature has amended the Revised Code to include grandparents explicitly and has provided the mechanism for their visitation. R.C.
Grandparent visitation undeniably imposes upon parental authority to some extent. The kinds of problems caused by this are ably articulated by Judge Doan in his concurrence. The question before us in this case is whether this infringement is permissible.
There is a federal constitutional basis upon which parental autonomy can be asserted. In Santosky v. Kramer,7 the United States Supreme Court *Page 116 acknowledged that parents have a fundamental liberty interest in the "care, custody, and management" of their children. In the application of the parental-autonomy doctrine on the state level, we recognize that a few states have interpreted their state constitutions to restrict grandparent visitation to situations where there is harm to a child or parental fitness is challenged.8 See, e.g., Hawk v. Hawk (holding unconstitutional that part of Tennessee's statute that permitted court-ordered grandparent visitation in an intact nuclear family with married parents whose fitness was unchallenged;) Beagle v. Beagle (state must first establish parental unfitness or significant harm to the child before court-ordered grandparent visitation can be considered). It is significant to us, however, that neither of these cases addressed the issue of grandparent visitation in the context of divorce, which is the circumstance now before us. As the court observed in Hawk, for example, "We note that the state has a stronger argument for court intervention to protect the extended family when the nuclear family has been dissolved."9
This case deals with visitation after a divorce. In Ohio, grandparent visitation is authorized in three circumstances: (1) in divorce, dissolution, legal separation, or annulment proceedings; (2) where the parent of the child is deceased; and (3) where the child is born to an unmarried mother, and the father has either acknowledged paternity of the child or been determined to be the child's father in an action brought under R.C. Chapter 3111. Therefore, once Gaffney and Menrath divorced, R.C.
Gaffney argues, however, that R.C.
Lastly, Gaffney argues that the order granting grandparent visitation is not in the best interest of his children.
Before grandparent visitation is granted, three criteria must be met under R.C.
The magistrate and the trial court reviewed and carefully considered each of the best-interest factors found in R.C.
DOAN, P.J., and PAINTER, J., concur separately.