On June 19, 2014 the Supreme Court of Ohio handed down a merit decision in In re A.G., 2014-Ohio-2597. In a 5-2 opinion authored by Chief Justice O’Connor, the Court held that in ongoing child-custody litigation arising from a divorce, a child is not a proper party, and has no due process right to attend, but does have an interest in the action. In such proceedings, the court has the discretion to exclude the child if, under the totality of the circumstances, exclusion is in that child’s best interest.
In this particular case, A.G. was excluded from visitation proceedings ancillary to her parents’ divorce, and the Supreme Court held the trial court did not abuse its discretion in doing so. Justice Kennedy concurred in judgment only, without further elaboration. Justice O’Neill dissented, joined by Justice Pfeifer. The case was argued October 23, 2013. Read the oral argument preview here and the analysis of the argument here.
Pertinent Rules and Statutes
Civ. R. 75(B)(2)- When it is essential to protect the interests of a child, the court may join the child of the parties as a party defendant and appoint a guardian ad litem and legal counsel, if necessary, for the child and tax the costs.
R.C. 3109.04(D)(2)( authorizes domestic relations court to certify the case to juvenile court if it is not in the best interest of the child to reside with either parent.)
R.C. 3109.04(B)(2)(b) (The wishes and concerns of a child who is of suitable age and mental capacity are to be considered by a trial court in the allocation of parental rights and responsibilities.)
A.G.’s parents are Lolita, a Russian citizen, and Patrick, a U.S. citizen. The two met and married in Russia in early 1995, then settled in the U.S. A.G. was born in December of 1995.
Patrick filed for divorce in Henry County in 1998, and was granted custody of A.G.
Both Parents Separately Abscond with A.G.
In February of 1999, Patrick absconded with A.G. The F.B.I. tracked them down in Florida. Patrick had been planning to take A.G. to Costa Rica. Patrick was arrested, and A.G. was returned to the custody of her mother.
In February of 2001, the Henry County Domestic Relations Court approved a consent judgment of divorce between Patrick and Lolita which resolved all the issues except child support and visitation. The same day the court established a visitation schedule for Patrick with A.G. Within weeks of this order, Lolita absconded with A.G. to Moscow. According to the court appointed guardian ad litem (GAL) for A.G., a year later A.G. was forcibly abducted from her mother’s Moscow home. The F.B.I. believed Patrick was responsible.
A Plague on Both Their Houses
The Henry County Domestic Relations court determined that it was in A.G.’s best interest that neither parent be her legal custodian or residential parent. On July 25, 2002, that court certified the case to juvenile court.
Henry County Juvenile Court
Also on July 25, 2002, the juvenile court ordered law enforcement to seize A.G. if they could find her, and ordered her placed in the care of the Henry County Department of Job and Family Services for her protection. The next day, Patrick brought her there, where she remained in the temporary custody of the county for two months.
On September 23, 2002, the juvenile court awarded custody of A.G. to Lolita, and granted Patrick unsupervised visitation. Then both parties moved out of Henry county-Lolita to Ottawa County; Patrick to North Carolina. So the case was transferred to the Ottawa County Juvenile Court.
Ottawa County Juvenile Court
The Ottawa County Juvenile Court appointed a GAL for A.G., pursuant to Civ.R.75(B)(2). On June 23, 2006, the GAL, believing Patrick to be violent and unpredictable, asked for and was granted an emergency order suspending Patrick’s visitation. But by February of 2007, the GAL notified the court she was no longer certain of her earlier recommendation, and sought a psychological evaluation of A.G. and her parents to determine what was in A.G.’s best interest. The court did so, and interviewed A.G. in chambers.
On July 11, 2008, Patrick was granted supervised visitation with A.G., but only in Ottawa County. Despite a letter from A.G. telling her father she had no intention of visiting him in North Carolina, on Sept. 14, 2009 Patrick moved for unsupervised visits in North Carolina.
Be patient! We’re getting there.
On October 14, 2009, A.G. got a lawyer, who moved to terminate Patrick’s then-existing visitation rights. On October 21, 2009, A.G. filed a motion for permission to attend her trial. She was then 13 years old.
On February 9, 2010, the GAL filed a revised recommendation that Patrick be granted overnight unsupervised visitation with A.G., ultimately expanding that recommendation to a motion to grant custody to Patrick. The GAL had become convinced that Lolita was intentionally alienating A.G. from her father, and recommended that Lolita have no contact with A.G. until proper reunification occurred between A.G. and Patrick.
Patrick joined the GAL’s motion; A.G. and Lolita opposed it. In preparation for a hearing on this motion, the judge interviewed A.G. in chambers. Five days later the judge denied A.G.’s motion to attend the hearing. The judge found that A.G. would be represented by counsel at this trial, that her mother could also advance her interests, and that A.G. had had the opportunity to express her wishes to the court at the in-camera hearing. The hearing took place in early November of 2010. A.G. was then fourteen.
The juvenile court denied a change of custody to Patrick, but granted Patrick unsupervised visitation in Ottawa County and in North Carolina.
A.G. appealed. The Sixth District Court of Appeals affirmed the judgment of the trial court, finding that the trial court did not err in excluding A.G. from the proceedings.
Lost the forest for the trees? Here is the proposition of law A.G. urged the court to accept (it did not):
“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 I, Section 16, of the Ohio Constitution.”
A.G. argued that she had a right to be present at the hearing because she was a party who had filed a motion to modify visitation. The Court disagreed both with her contention that she was a party, and that she had the right to be present at the hearing.
Analysis of Decision
After the argument, I wrote this in my blog post:
“Even though this case will likely be moot as to A.G. who turns 18 in December [of 2013,] the Court is still likely to decide it under the “capable of repetition yet evading review” exception to mootness. It raises a very interesting question, and could affect many in the future.”
The Court did just that.
In the opinion, the Chief wrote that A.G. turned 18 in December of 2013, so the substantive issues in her particular case are moot. But the Court held that her claim presents an “unsettled constitutional question and a matter of public and great general interest”—namely a child’s right to participate in custody litigation– and it thus had the authority to proceed to the merits. The Chief notes that this issue is “evolving,” referencing recent legislation by the state of Washington giving children the right to be present during dependency actions.
Jurisdiction and Venue
At oral argument there was a lot of confusion about whether this was a juvenile or a domestic relations matter. Justice Lanzinger, for example, had asked, since the case appeared to be a post-divorce matter, why was it in Juvenile Court? Actually, it turns out that Justice Kennedy, in one of her very infrequent questions, had the correct take-she asked if the case was sent over to juvenile court because neither parent was deemed suitable.
Short summary on this point
This was always a domestic relations case, and stayed that way despite any transfer to juvenile court, first in Henry County, and later to Ottawa County. The Ottawa County Juvenile Court stepped into the shoes of a domestic relations court in this matter.
Certification to Juvenile Court Doesn’t Change Domestic Relations Nature of Case
Once a domestic relations court issues an initial custody decree, it retains jurisdiction to modify that decree upon motion of one or both parents—but not by the child. By statute, only a parent, not a child, has the authority to invoke the jurisdiction of domestic relations court to modify a prior order.
R.C. 3109.04(D)(2) provides for the certification of a case from domestic relations to juvenile court if it is in the best interest of the child to be placed with neither parent. Once a case is thus certified, the juvenile court has exclusive, continuing jurisdiction to modify the custody decree, but in doing so, the juvenile court must still comply with R.C. 3109.04, which means A.G. continued to be unable to invoke the jurisdiction of the court to modify a prior custody order.
The juvenile court remains cloaked with domestic relations subject matter jurisdiction. Even if the child is joined as a party pursuant to Civ. R. 75(B)(2), which governs in divorce actions (A.G. had strenuously argued in the case that the juvenile rules applied) that does not make the child a proper party in a divorce action or ancillary custody proceedings. The rule is procedural, not jurisdictional.
A.G.’s Constitutional Arguments
A.G. argued she had the same right as her parents to participate in these proceedings. The Court summarily disagreed, noting that the constitutions (state and federal) permit and sometimes require that children and adults be treated differently, and this is such a situation.
Noting that no one has an absolute constitutional right to be admitted to a court proceeding, the Court does find that A.G. has an interest in the outcome of these custody proceedings. This gives her a right to notice and the opportunity to be heard on the “narrow issue of her wishes and concerns regarding allocation of her parents’ rights to custody and visitation.”
Footnoting that notice is not an issue here, the Court turned its attention to the opportunity to be heard. The Court found the sufficiency of A.G.’s opportunity to be heard must be evaluated through the lens of R.C. 3109.04. Under that statute, a modification of a prior decree allocating parental rights will only be granted if there is a change in circumstances and the modification is in the best interest of the child. To determine the child’s best interest, the court must consider a list of statutory factors, and may interview the child in chambers, even if the parents object. This is one way in which the child has the opportunity to be heard without physically being present during the proceedings. Other ways are through a lawyer for the child, a parent, if parent-child interests are aligned, and also through a guardian ad litem who advocates for what is in the child’s best interest.
The Court found the various ways a child can be heard to be adequate, and concluded that due process does not require that a child be permitted to attend custody proceedings ancillary to a divorce. Further, the court has discretion to exclude the child from the proceedings if the court deems that in the child’s best interest.
Turning specifically to this case, the Court found that A.G.’s due process rights were not violated. She had the chance to convey her wishes directly to the judge, and her attorney and her mother advocated her views at trial. The GAL also participated in the trial. The court also had input from mental health professionals who had evaluated A.G. and her parents.
The Court found no abuse of discretion in excluding A.G. from the proceedings, and found that due process did not mandate that she be allowed to attend.
Justice O’Neill dissent, joined by Justice Pfeifer, pretty much mirrored his comments during oral argument, when he asked what possible reason there could be to exclude the child from being present at the hearing.
In his dissent, O’Neill notes that he does not disagree with the syllabus of this case, but only with its application, which he believes compels the opposite result from that reached by the majority. He also agrees the trial court has discretion in deciding whether to exclude a child from the proceedings, but found that the trial judge totally failed to analyze whether A.G. was of sufficient age and maturity to attend the trial. In his view, the evidence in the case weighed strongly in favor of allowing her to be present. He would find that excluding her subordinated her best interest to her feuding parents, and was an abuse of discretion.
As for the constitutional argument, O’Neill also suggests, without directly saying so, that A.G.’s rights under the open courts provision of the Ohio Constitution were violated. Both he and Justice Pfeifer asked about this at oral argument.
1. When a domestic-relations court certifies an ongoing custody case to a juvenile court under R.C. 3109.04(D)(2), matters related to the original divorce-custody case continue to be domestic-relations matters, governed only by R.C. 3109.04.
2. A child is not a proper party in a divorce action or its ancillary custody proceedings, even if she is joined as a party defendant pursuant to Civ.R. 75(B)(2).
3. Although not a party to the action, a child who is the subject of custody litigation arising from a divorce has an interest in the matter.
4. A court has discretion to exclude from court proceedings a child who is the subject of custody litigation arising from a divorce case if, considering the totality of the circumstances, exclusion is in the best interest of that child.
5. Due process does not mandate that a child be permitted to attend custody proceedings that are ancillary to a divorce.
When all was said and done (and a lot was said!) the Court pretty much accepted the arguments made by the father’s lawyer at oral argument. This is a summary of what he said there:
The civil rules, not the juvenile rules, applied in this case. When this case was transferred to the Ottawa Juvenile Court, it was and remained a domestic relations case, in the framework of a post-divorce matter. A.G. was never a party to the case. No order named her as such. While she had the right to a guardian ad litem and an attorney, she did not have the right to be named as a party or to be present. Her rights in this action are derivative of her parents’. Even if it was an abuse of the discretion by the trial court to exclude A.G. this does not rise to the level of a constitutional violation. A.G. had all the due process the relevant rules and statutes afforded her, and she did participate in this matter vigorously.
Like the justices, I was confused about why the case was in juvenile court to begin with, but that was cleared up. I also thought the Court would likely find A.G.’s right to participate was discretionary, but thought the Court might duck the constitutional question (it didn’t). It was also clear Justices O’Neill and Pfeifer were going the other way.