You get custody of this decision

You get custody of this decision

A custody case for you to decide

By A.J. Wagner

A child custody case

A child custody case

This will be a case for you to decide if you so choose. I will present the facts and give you the decision of the trial court. You can then take a break and read the interesting articles on the following pages while you ponder how the case should be decided in the Court of Appeals. Then come back for the decision.

The story of this case begins in 2007 when the child was born to an unmarried couple. The child lived with both parents in a trailer provided by the paternal grandmother. In March of 2008, while the mother was at work, the child was left with the maternal grandparents. The grandfather took the child out in the car when he hit a pole. The child was properly restrained in a car seat and was unharmed but there were allegations of drinking against the grandfather that were never proven.

Because of the drinking, a referral was made to Clark County Children’s Services (CCCS) to look into the matter. CCCS developed a voluntary case plan for the parents who were to submit to mental health examinations, attend parenting classes and promise not to leave the child with intoxicated individuals. The parents did not comply with the program and CCCS eventually closed the case without taking any action.

The parents split up, after which the child and her mother went to live with an aunt. In June of 2008, the maternal grandmother filed for custody alleging that mom used illicit drugs, left the child with unsuitable persons and failed to take the child to health appointments.

At first the court granted temporary custody to the grandmother but after a second hearing the court gave custody back to mom and scheduled a full hearing. After a four-day hearing, conducted over several months, the court granted custody, once again, to the grandmother. As a basis for their decision, the court said that the mother “(1) lives in subsidized housing; (2) works 40 hours per week from 6 a.m. until 2 p.m., making $20,363 per year, and lacks health insurance; (3) has a suspended operator’s license due to a lack of insurance and a prior accident; (4) does not have “much of a support system”; (5) smoked marijuana at the beginning of 2010; (6) let the child’s health insurance card lapse; (7) did not comply with the case plan until shortly before trial; (8) spends considerable time “partying with friends and prioritizing her social life over that which was in [the child’s] best interest”; and (9) left the child in the care of unsuitable persons.”

Now it’s up to you. Is this enough to grant custody to the grandmother? Here is the law you must consider for this case as stated by the Second District Court of Appeals:

A parent’s right to raise a child is an essential and basic civil right. However, a parent may lose custody of a child to a non-parent if a court finds the parent unsuitable. Thus, in child custody proceedings under R.C. 2151.23(A)(2) between a parent and nonparent, a court may not award custody to the nonparent “without first determining that a preponderance of the evidence shows that the parent abandoned the child; contractually relinquished custody of the child; that the parent has become totally incapable of supporting or caring for the child; or that an award of custody to the parent would be detrimental to the child.”

Now you can go to the fridge and think about it, or read the rest of the paper and think about other things.

I see you came back (or couldn’t wait for the answer so you never left.) Good. Here’s what the Court of Appeals said.

The court noted that when the child was left with her parents there was another adult present and there was no proof that her parents were unsuitable. Further, that although there was testimony of some drinking and marijuana use, there was no proof of ongoing usage or usage when caring for the child and no proof of drunk driving. The appellate court said that the mother’s youth, her employment and the fact that she lived in subsidized housing was no reason to change custody.  Also, the court found that the health insurance lapsed for one month but was reinstated.

In short, there was no proof the child wasn’t properly tended to.

You may feel tricked by this since you did not know all the problems with the case, but my point is twofold. First, now you know some law on custody.

Second, the trial judge who heard all the evidence was sure of his or her decision but the Court of Appeals is there to check on trial courts to make sure they are thorough when weighing evidence. In this case they decided the trial court was not. That’s why we have a Court of Appeals. Like the decision or not, this is a very good thing in the law.


Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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