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BOYER, APPELLANT, v.
BOYER, APPELLEE
No. 75-1029
Supreme Court of
PRIOR HISTORY: [***1]
APPEAL from the Court of Appeals for
The subject of this cause is a custody dispute over George Bryan Boyer, Jr.,
who turned eight years old in March 1976.
Prior to going on the road with a carnival in 1968, George's parents, Sandra L.
Boyer, appellant herein, and George Bryan Boyer, Sr., appellee herein, left
George with his paternal grandparents when he was a few months old. George has
continually resided with his grandparents since that time.
On
During the pendency of the adoption proceeding, the Court of Common Pleas of
Licking [***2] County on
The custody hearing commenced on
Fifteen witnesses and over 200 pages of transcript provided a thorough inquiry
into the life-styles and home environments of the proposed custodians.
The court issued an oral order, which reads:
"I find it in the best interest of the child * * * to award the custody to
neither of the parents, but to award the custody of this child to Esther Boyer
[the grandmother], with reasonable visitation to Sandra L. Boyer.
"I am not making a finding that either party is unfit to have the custody
of this child, I am saying that it is for the best interest of this child to
make this order."
Subsequently, the court issued findings of fact and conclusions of law,
pursuant to Civ.
R. 52, which found, inter alia: (1) that [***3]
"neither parent [is] unfit," (2) "that the child has resided
with his paternal grandparents since infancy, and they are suitable and willing
to care for the grandchild," (3) "that it would be for the best
interest of said child to be awarded to the paternal grandmother, Esther C.
Boyer," (4) "that the child's interactions and interrelationship with
the paternal grandparents has been excellent and to the child's best
interest," (5) that "the child's adjustment to the paternal
grandparents home and community has been excellent," and (6) that
"the child's mental and physical health and the paternal grandparents
mental and physical health is excellent."
The court concluded that under R.
C. 3109.04, as amended September 30, 1974, an award of custody to a
nonparent could be made in the absence of finding both parents unfit, and that
it was in the best interest of George for custody to be awarded to his
grandmother.
The Court of Appeals affirmed the judgment, and this court allowed a motion to
certify the record.
DISPOSITION: Judgment affirmed.
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PROCEDURAL
POSTURE: In a custody action, appellant mother challenged a judgment of
the Court of Appeals for Licking County (Ohio) granting custody of her son to
the child's paternal grandparents pursuant to Ohio R. Civ. P. 75(P). The mother
contended that Ohio R. Civ. P. 75(P) conflicted
with Ohio Rev. Code § 3109.04. |
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OVERVIEW: The mother
and father left the child with his paternal grandparents when he was a few
months old, and the child continually resided with his grandparents after
that time. The lower court concluded that the parents were not unfit but that
it was in the child's best interest for the grandparents to have custody of
the child. The court affirmed the order. The court held that that the
conflicting portions of Ohio R. Civ. P. 75(P) and Ohio Rev. Code § 3109.04 dealt with
matters of substantive law and that the statute controlled. The court also
held that the lower court properly applied the provisions of Ohio Rev. Code § 3109.04. The court
stated that where the rights of the mother conflicted with the interests of
the child, the best interests of the child controlled. |
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OUTCOME: The court
affirmed the order granting the paternal grandparents custody of the minor
child. |
CORE TERMS: custody, best interest,
suitable, commit, Civil Rules, substantive law,
custodian, universally
LexisNexis(R) Head notes 
Hide
Head notes
Family Law > Child Custody
> Awards > General Overview
|
Ohio R. Civ. P. 75(P), in part,
reads: If the court finds, with respect to any child under
eighteen years of age, that neither parent is a suitable person to have
custody, it may commit the child to any other relative of the child. |
Family Law > Child Custody
> Awards > General Overview
|
Ohio Rev. Code § 3109.04 reads: If
the court finds, with respect to any child under eighteen years of age, that
custody to neither parent is in the best interest of the child, it may commit
the child to a relative of the child. |
Governments > Courts >
Authority to Adjudicate
Governments > Courts > Rule Application & Interpretation
|
The Modern Courts Amendment, |
Governments > Courts > Rule
Application & Interpretation
Governments > Legislation > Interpretation
|
Where conflicts arise between the civil rules and the statutory
law, the rule will control the statute on matters of procedure and the
statute will control the rule on matters of substantive law. |
Family Law > Child Custody
> Awards > General Overview
Governments > Courts > Rule Application & Interpretation
Governments > Legislation > Interpretation
|
The conflicting portions of Ohio Civ. R. 75(P) and Ohio Rev. Code § 3109.04 deal with
matters of substantive law and the statute, therefore, must control. The Ohio
General Assembly has granted to children the right to be placed with the
relative whose custodianship would be in the child's best interest. |
Family Law > Child Custody
> Awards > General Overview
Family Law > Guardians > General Overview
|
Ohio Rev. Code § 3109.04(C) sets
forth a five-factor test to be applied by the court in determining the proper
custodian of a child. |
Family Law > Child Custody
> Awards > General Overview
Family Law > Guardians > Duties & Rights
Family Law > Parental Duties & Rights > General Overview
|
Children and parents of those children, stand equal before the
law. They are entitled to protection from and by the law. The child's right
to a suitable custodian and parental rights, when not in harmony, are
competing interests, requiring that one give way to the other. |
HEADNOTES: Minors -- Custody -- Award to
nonparent -- Finding of parental unfitness or unsuitability not required, when
-- R.
C. 3109.04, construed -- [***4] Civ.
R. 75(P) -- Requirement of finding of parental suitability -- Validity.
SYLLABUS: 1. In determining who shall have the
care, custody, and control of a child under 18 years of age, even though the
child's parents are not found to be unfit or unsuitable, the court may commit
the child to a relative of the child where the court finds that custody to
neither parent is in the best interest of the child. ( R.
C. 3109.04 construed.)
2. Insofar as Civ.
R. 75(P), which requires the court to find, prior to committing a child to
a relative, that both parents are unsuitable to have custody, abridges the
child's statutory right under R.
C. 3109.04 to be committed to a relative where commitment to a parent would
be contrary to the child's best interest, such rule is invalid under the
provisions of Section 5 of Article IV of the Ohio Constitution.
COUNSEL: Mr. Kenneth B. Schumaker, for
appellant.
Messrs. Silbaugh, Reed, Lentz, Huddle & Clark and Mr.
Joseph T. Clark, for appellee.
JUDGES: WILLIAM B. BROWN, J. O'NEILL, C. J.,
CORRIGAN, STERN, CELEBREZZE and P. BROWN, JJ., concur.
HERBERT, J., concurs in paragraph one of the syllabus and the judgment.
OPINION BY: BROWN
OPINION: [*85]
[**287] [***5]
The question presented is whether a court may commit a minor child to a
relative even though the court finds that the [**288]
parents are suitable persons or fit to take charge.
HN1
Civ.
R. 75(P), in pertinent part, reads:
"If the court finds, with respect to any child under eighteen years of
age, that neither parent is a suitable person to have custody, it may
commit the child to any other relative of the child * * *." (Emphasis
added.)
At the time the Civil Rules were promulgated, R.
C. 3109.04 and Civ.
R. 75(P), where pertinent, were identical.
The trial court, in committing George to the custody of his grandmother even
though the child's parents were not found to be unsuitable or unfit, purported
to derive authority from the present version of HN2R.
C. 3109.04, which reads:
"If the court finds, with respect to any child under eighteen years of
age, that custody to neither parent is in the best interest of the child,
it may commit the child to a relative of the child * * *." (Emphasis
added.)
Appellant's basic argument, in an apparent allusion [*86]
to the Modern Courts Amendment, Section 5(B) of Article IV of the Ohio
Constitution, is that Civ.
R. 75(P) controls [***6] the provisions of R.
C. 3109.04. HN3The
Modern Courts Amendment reads, in part:
"The Supreme Court shall prescribe rules governing practice and procedure
in all courts of the state, which rules shall not abridge, enlarge, or modify
any substantive right. * * * All laws in conflict with such rules shall be of
no further force or effect after such rules have taken effect."
The Amendment, along with Civ.
R. 1(A), recognizes that HN4where
conflicts arise between the Civil Rules and the statutory law, the rule will
control the statute on matters of procedure and the statute will control the
rule on matters of substantive law. State v. Hughes (1975), 41
Ohio St. 2d 208, 210; Morrison v. Steiner (1972), 32
Ohio St. 2d 86, 88; Krause, Admr., v. State (1972), 31
Ohio St. 2d 132, 145.
This court holds that HN5the
conflicting portions of Civ.
R. 75(P) and R.
C. 3109.04 deal with matters of substantive law and that the statute,
therefore, must control. The object of inquiry herein is the determination of
who shall have custody of George. The General Assembly has granted to children
the right to be placed with the relative whose custodianship would be in the
child's best [***7] interest.
As my opinion in State, ex rel. Portage County Welfare Dept., v.
Summers (1974), 38
Ohio St. 2d 144, 152-153, says:
"Historically, it has been the province of the courts to make the final
determination of the best interests of a child in custody disputes. In an early
case involving a custody dispute between the father and mother of a child, Gishwiler
v. Dodez (1855), 4
Ohio St. 615, 617, this court said:
"'* * * [I]t is universally agreed that neither of the parties has any
rights that can be made to conflict with the welfare of the child, and that the
order of the court should be made with a single reference to its best
interests. The contending parties may be fairly presumed to be more solicitous
to gratify their own interests and feelings, [*87]
than to develop the whole truth, with a view to the main object of the inquiry;
while the child, incapable of judging for itself, and wholly unrepresented in
the contest, is in danger of being overlooked. Under such circumstances, it is
the duty of the judge to become its protector, and not only to listen to all
the evidence produced by the parties calculated to throw light upon his path of
duty, but [***8] also to inform himself from all
other legitimate sources, the better to qualify himself to discharge
understandingly the delicate trust.'"
The Court of Common Pleas properly applied the provisions of R.
C. 3109.04.
[**289] We reject appellant's second assertion
that the standard for determining proper custody -- the best interest of the
child doctrine -- is unconstitutionally vague. The doctrine itself is not only
universally applied and recognized and amenable to description (see State,
ex rel. Portage County Welfare Dept., v. Summers, supra [38 Ohio St.
2d 144], at fn. 8, page 152), but also HN6R.
C. 3109.04(C) sets forth a five-factor test to be applied by the court in
determining the proper custodian of the child.
HN7Children
and parents of those children, stand equal before the law. They are entitled to
protection from and by the law. Appellant's basic premise, that the parents
have a right to custody which transcends consideration of the child's best
interest, is recognition that the child's right to a suitable custodian and
parental rights, when not in harmony, are competing interests, requiring that
one give way to the other.
For the foregoing reasons, the judgment [***9] of the Court of Appeals is affirmed.
Judgment affirmed.