Oral Argument Preview: Do Minors have a Constitutional Right to Participate in a Parental Dispute over Visitation? In re A.G.

On June 19, 2014, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument in this case here.

On October 23, 2013, the Supreme Court of Ohio will hear oral argument in the case of In re A.G. 12-2097. At issue in this case is whether the U.S. Constitution and the Ohio Constitution guarantee minors the right to attend and participate in disputed visitation proceedings between their parents. This case will be argued at Bucyrus High School, as part of the Court’s off-site program. Bucyrus is the home of Justice Paul Pfeifer.

Background

A.G. was born in December of 1995. In 1998, A.G.’s father, the Appellee, (Father) filed for divorce. Following the filing, A.G.’s parents contentiously fought for custody of their daughter. As a result, A.G. shifted back and forth between her parents and even spent time in foster care. Both of her parents absconded with A.G. to foreign countries in attempts to circumvent custody orders and both faced legal consequences for their actions. After the divorce was finalized in 2001, A.G.’s mother was awarded custody. Subsequently, after a period in which his visitation was suspended, Father was afforded the opportunity to exercise some supervised visitation during summer months.

The parties have differing accounts as to the success of the summer visits. A.G. argues that she feared her father and felt threatened due to his anger management issues. However, the social workers who supervised the visits concluded that the visits were constructive and that A.G. did not exhibit any fear of her father.  Furthermore, A.G.’s guardian ad litem believed A.G.’s mother was influencing A.G.’s bad perception of her father.

In 2009 when A.G. was 13 years old, Father filed a motion for unsupervised visitation. In response, A.G. hired her own lawyer and filed a motion to terminate all visitation with her father. Subsequently, A.G. filed a motion for leave to permit her attendance and participation at trial. The trial court denied the motion for leave on the basis that A.G. did not have a constitutional right to be present during a trial that involved a dispute between her parents.  Later, the trial court granted Father’s motion for unsupervised visitation. On appeal to the Sixth District Court of Appeals, the court affirmed the judgment of the trial court.

Key Precedent

United States Constitution, 14th Amendment, Section 1 (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws)

Ohio Constitution, Article 1, Section 16 (All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay, suits may be brought against the state, in such courts and in such manner, as provided by law)

Hanna v. Hanna, 177 Ohio App. 3d. 233 (10th Dist. 2008) (A minor does not have an independent legal right separate and apart from his or her parents to commence or maintain a change of custody action)

Juv. R. 1(C)(4) (Juvenile Rules of Procedure are to be followed in all juvenile courts except in proceedings which determine parent-child relationships)

A.G.’s Argument

A.G. argues that by denying her the opportunity to personally participate in the trial proceedings, she was denied her due process rights as guaranteed by the Fourteenth Amendment and the Ohio Constitution.

First, A.G. argues that the Ohio Rules of Juvenile Procedure should have been applied to her case instead of the Ohio Rules of Civil Procedure. Pursuant to Juv. R. 1(C)(4) the juvenile rules apply in all proceedings except those which determine the parent-child relationship. This was not such a proceeding, but rather was one to terminate visitation. That meant that the juvenile rules should have applied, and it they had been properly applied, the trial court erred in denying her motion for leave to participate since the Juvenile Rules do not specifically prohibit a child’s participation at a hearing in which the child has a direct interest in the outcome.

Second, A.G. argues that even if the trial court was correct in applying the Ohio Rules of Civil Procedure, her due process rights were still violated when the trial court denied her motion for leave. A.G. argues that the Ohio Rules of Civil Procedure apply to all persons, irrespective of age, and do not specifically prohibit a child’s participation in an adjudicatory hearing.

Lastly, A.G. argues that by denying her motion for leave, the trial court affected the outcome of the trial. A.G. argues that she was denied the opportunity to object and comment about the authenticity and/or relevance of any photographs used at trial, she was prevented from rebutting statements relating to interviews with her guardian ad litem, and the trial court did not have the opportunity to observe, first hand, her resultant reaction and demeanor relative to the witnesses and evidence presented at trial.

Father’s Argument

Father argues that A.G. was afforded sufficient due process through the application of the Ohio Rules of Civil Procedure, which apply in this case.  Specifically, Father argues that minors are already afforded due process and even have a qualified right to testify in court proceedings.  While he agrees that A.G. was not allowed to sit in the courtroom, he argues that she was allowed to participate, and that her lawyer and her mother adequately and appropriately protected her interests.  A.G. also had the opportunity to express her wishes and concerns to the court in an in-camera interview, and to her guardian ad litem. Father also argues that it would be contrary to public policy to give minors the unqualified right to attend the hearings of the parents’ divorce and custody proceedings.

In addition, Father argues that A.G. was not a party to the proceedings because there was no order to join her as a party defendant.  Therefore under Hanna v. Hanna, the motions A.G. filed should be construed as motions of her mother since A.G. does not have an independent legal right apart from her mother.

A.G.’s Proposed Proposition of Law

The denial of a person, under the age of majority, the opportunity to participate in trial proceedings in which they have a direct interest, is a violation of that person’s right to due process as guaranteed by the 14th Amendment of the U.S. Constitution and Article 1, Section 16, of the Ohio Constitution.

Father’s Proposed Counter Proposition of Law

The Appellant, a minor child, does not have an unqualified, constitutional right to be present in the courtroom for a hearing of motions regarding a modification of primary residential care, visitation/parenting time, and termination of parental association.

A.G.’s mother did not file a merit brief in this case, and thus cannot participate in the oral argument.

Student Contributor: Cameron Downer                                  

 

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