Termination of Parenting Time (Juvenile Visitation)

Dubec v. Pochiro
2010-Ohio-1293
Seventh District Court of Appeals
Mahoning County
Juvenile Visitation

Defendant-appellant Christopher Pochiro appeals a decision terminating visitation with his fourteen-year-old daughter (Lana) and reducing his contact to weekly phone calls. The parties were never married. Several years of battling and one relocation resulted in Pochiro being granted the Standard Order of Visitation with visitation to take place at the paternal grandmother’s residence. The Order was effective September 15, 2008.
On October 8, 2008, less than a month after the Order took effect, Pochiro’s mother died. Pochiro exercised his regularly scheduled visitation the weekend of the funeral. During the weekend, the police were called to Pochiro’s residence. After Lana expressed concerns regarding her safety, the police decided to remove her from Pochiro’s care and placed her in the temporary custody of her maternal aunt. Venuto (Plaintiff-appellee) filed a motion to suspend visitation. After a hearing the court terminated Pochiro’s physical visitation with Lana, but did allow weekly telephone contact. On appeal, Pochiro asserted three assignments of error. All of which were found to have merit.

From the Opinion:

{¶23} Generally, the trial court looks only to the factors enumerated in R.C. 3109.051(D) and determines if modification of visitation is in the best interest of the child. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. However, in some cases, the foregoing statute does not stand in isolation. In re Kaiser, 7th Dist. No. 04 CO 9, 2004-Ohio-7208, ¶10. It must be read and interpreted in conjunction with other factors derived from caselaw to protect against infringement upon an individual’s constitutional rights. Id.

{¶24} This court has specifically held that "[t]he nonresidential parent has a fundamental and natural right to visitation." Anderson v. Anderson (2002), 147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, ¶22 (7th Dist.), citing Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, and Pettry v. Pettry (1984), 20 Ohio App.3d 350, 486 N.E.2d 213. "The child also has a fundamental right to visitation with the nonresidential parent." Id., citing Porter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O. 260, 267 N.E.2d 299, paragraph three of the syllabus.

{¶25} Concerning this fundamental right of the nonresidential parent to visitation with their child, this court has also noted that the right should be denied only under extraordinary circumstances. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574, ¶44, citing Pettry, supra, paragraph one of the syllabus. The burden of proof is on the one contesting visitation to demonstrate extraordinary circumstances by clear and convincing evidence. Pettry, 20 Ohio App.3d at 352-353, 486 N.E.2d 213.

{¶26} Pettry identified two extraordinary circumstances that would qualify: (1) if the noncustodial parent was unfit; or (2) if visitation would cause harm to the child. Another court has held that it would be an extraordinary circumstance if the noncustodial parent were imprisoned for a term of years for a crime of violence. In re Hall (1989), 65 Ohio App.3d 88, 90, 582 N.E.2d 1055. The examples listed in Pettry and Hall are not meant to provide an exclusive list of possible extraordinary circumstances. Hoppel, supra (involving nonresidential parent’s conviction for sexual battery against subject child’s stepsister). Once the custodial parent proves the existence of an extraordinary circumstance, the burden shifts back to the noncustodial parent to prove that any visitation would be in the best interests of the child. Id.

{¶30} Given that the trial court terminated Pochiro’s constitutionally protected visitation rights, we must now review the court’s judgment based on the standard elucidated above. The trial court did review Lana’s best interests under the factors enumerated in R.C. 3109.051(D). The court gave particular attention to: Lana’s prior interrelationship with Pochiro, R.C. 3109.051(D)(1); her age, R.C. 3109.051(D)(4); her adjustment to home, school, and community; R.C.3109.051(D)(5); her wish to not spend time with Pochiro, R.C. 3109.051(D)(6); and the "perceived safety of the child," R.C. 3109.051(D)(7). However, a thorough review of the trial court’s judgment entry reveals that it did not make the required initial finding that there was clear and convincing evidence of extraordinary circumstances that would justify terminating Pochiro’s visitation rights. The trial court skipped that step and instead limited its review to R.C. 3109.051(D)’s best interests of the child factors.