Leininger v. Leininger , 48 Ohio App. 2d 21 ( 1975 )

In reversing the judgment of the Juvenile Court which resulted in a denial of custody to the father, William Leininger, of his minor child, Keith Leininger, I would stress the following facts in the record and fashion the following legal principles as applicable thereto.

In 1968, the appellant in the divorce decree was granted custody of the minor child of the parties. By consent of the appellant, the minor child from time to time lived in the home of appellee Harvey W. Beck and his wife, from July 1968 to December 1970, and thereafter continually until August 13, 1973, at the request and with the consent of the appellant.

The Juvenile Court, by a judgment entry dated August 13, 1973, granted the temporary care, custody and control of Keith Leininger to Mr. Beck. The judgment entry recites that it was based on an affidavit. The only affidavit on record is that of Harvey Beck and recites that by agreement of both parents their son, Keith Leininger, a minor, was placed in the Beck home at the request of the Leininger parents and with the consent and approval of the Juvenile Court. No other factual basis, nor opposition by appellant to such judicial proceedings, appears in the record as a foundation for the August 13, 1973, temporary custody order. The temporary custody order was triggered by a motion for temporary custody filed by Mr. Beck.

Therefore, the Juvenile Court's judgment of October 11, 1974, denying appellant's motion, as the father, to change the temporary custody order and grant him custody of his son rests primarily upon an agreement of the parents, and their actions pursuant thereto, placing their child in the Beck home, and the ratification of this placement by the Juvenile Court through a temporary custody order.

I would fashion the following legal principle as applicable to these facts. Where a father is granted legal custody of his minor child by a divorce decree, and thereafter the Juvenile Court grants temporary custody to a third person, unrelated by blood or marriage to the minor child, based only on the fact that such third person has had physical custody of such child, with the consent and approval of his father, for approximately three to five years, such temporary custody order is not within the meaning of R. C. 3109.04, and was not intended to be controlled by the factors and standards of paragraphs (B) and (C), when the father seeks a modification of such temporary custody order and a return of legal custody of such child to himself.

A temporary custody order, based on the consent and approval of the parent having permanent legal custody by an order entered in a divorce decree, granting custody of a minor child to a third person unrelated by blood to such child, is one which may be terminated at any time at the discretion of the court having jurisdiction, consistent with common law principles. This is geared to the lodestar legal proposition that a parent has a right to custody of his child paramount to the claim of all other persons to such custody, unless the court judicially determines that the parent is an unfit and unsuitable person for such custody, or the parent loses such right on the basis of a common law legal principle properly applicaable, such as his or her abandonment or refusal to support the child. Cf. R. C.2151.011(B)(13); Baxter v. Baxter, 27 Ohio St. 2d 168;Grandon v. Grandon, 164 Ohio St. 234; Clark v. Bayer, 32 Ohio St. 299; Rowe v. Rowe, 58 Ohio Law. Abs. 497; Jackson v.Fitzgerald, 185 A.2d 724.