Legal Research and Writing

MEMORANDUM OF LAW

To: Jerrod Justice, Esq.

From: Joseph Long

Re: Court ordered non-parent visitation

Date: May 24, 2011

STATEMENT OF FACTS:

Petitioner and client, Madeline Mayberry, is the grandparent to Jason and Sara Mayberry. Madeline's son, Jason, whom has recently passed away, was married to the children's mother and Respondent, Elizabeth Mayberry. Jason suffered from drug abuse problems and Elizabeth herself, has been in extensive therapy and counseling for her own addictions. Madeline is requesting the Court to allow her to continue her visitation as was in place prior to her son's untimely death. Elizabeth contends that Madeline enabled Jason before his death to continue his drug habit in front of the children. Elizabeth feels that in the best interest of the children Madeline should not be able to visit with them. Madeline denies the allegations of Elizabeth and asks the Court to allow the visitation to continue.

ISSUES:

Whether or not, in light of Troxel v. Granville is Court ordered non-parent visitation in Ohio unconstitutional or can it be distinguished?

ANSWERS:

No, non-parent visitation is not unconstitutional in Ohio as long as the proper Ohio Revised Codes are followed and all necessary steps are applied. The best interest of the children must be priority. Each situation is different and must be distinguished as such. In this instance, the Court needs to take into consideration all issues and consider the thoughts of the children and what the children have encountered when with the grandparent. If the best interest of the children is considered then the outcome should reflect it.

DISCUSSION:

Non-parent visitation that is Court ordered in Ohio is not unconstitutional if the laws are carefully reviewed and followed. Under O.R.C. 3109.051(B) the Court may grant "reasonable" visitation if the following three things apply:

(a) The grandparent, relative, or other person files a motion with the court seeking companionship or visitation rights.

(b) The court determines that the grandparent, relative, or other person has an interest in the welfare of the child.

(c) The court determines that the granting of the companionship or visitation rights is in the best interest of the child.

Also under O.R.C. 3109.051(D) there are 16 factors which are considered by the Court. The most important and pertinent factor in this case is factor 15. This factor states, "In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child's parents, as expressed by them to the court." In the circumstances surrounding the issues in Troxel v. Granville, the Court did not consider the parent's concerns and issues she had regarding the length of time of the requested visits. As with the issue at hand, the Court needs to take into consideration