[Cite as In re I.R.H., 2014-Ohio-1180.]

                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT

IN THE MATTER OF:                                  )
                                                   )
I.R.H.                                             )
                                                   )           CASE NO. 13 MA 158
                                                   )
                                                   )                 OPINION
                                                   )
                                                   )

CHARACTER OF PROCEEDINGS:                          Civil Appeal from Court of Common
                                                   Pleas, Juvenile Division of Mahoning
                                                   County, Ohio
                                                   Case No. 2012JG01507

JUDGMENT:                                          Reversed and Remanded

APPEARANCES:
For Appellees                                      Attorney Christopher A. Maruca
                                                   201 East Commerce Street, Suite 316
                                                   Youngstown, Ohio 44503

For Appellant                                      Attorney Amanda J. Jackson
                                                   1265 E. State Street
                                                   Salem, Ohio 44460




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
                        -2-


Dated: March 20, 2014
[Cite as In re I.R.H., 2014-Ohio-1180.]
DONOFRIO, J.

        {¶1}     Appellant, David Harris, appeals from a Mahoning County Common
Pleas Court Juvenile Division decision granting the motion for grandparents’ visitation
filed by appellees, John and Naomi Shenesky.
        {¶2}     This case involves the visitation of I.H. (d.o.b. 2/22/06).   I.H. is the
daughter of Carrie Harris and appellant. I.H.’s parents were married at the time of
her birth, but divorced in 2009. Carrie and appellant had shared parenting of I.H.
after the divorce. Appellees are Carrie’s parents and I.H.’s maternal grandparents.
        {¶3}     On December 22, 2011, Carrie was killed in an automobile accident.
Prior to Carrie’s death, appellees frequently visited with I.H. After Carrie’s death,
appellant continued to allow appellees to visit with I.H. at his home and invited them
to attend her soccer games and dance recitals. Disagreements eventually arose
between appellant and appellees.          At a June 2012 soccer game, appellant and
appellees got into an argument after which appellees’ time with I.H. greatly
diminished, as they ceased contacting appellee.
        {¶4}     Appellees filed a motion for grandparents’ visitation on August 31,
2012. A hearing was later held before a magistrate who heard testimony from the
parties, Harris’s mother, and the guardian ad litem (GAL).
        {¶5}     The magistrate made numerous findings as follows. Appellant is a fit
parent. Prior to appellant’s and Carrie’s divorce, appellees visited with I.H. four to six
times a year. After the divorce, appellees visited with I.H. more often. Appellees live
approximately 30 minutes from appellant and I.H. Appellant is a high school tutor
during the school year and is off all summer. I.H. takes part in activities including
plays, soccer, and swimming lessons. Since her mother’s death, I.H. suffers from
separation anxiety and is unable to attend sleepovers with her friends or family
members. Appellant is concerned about appellees’ ability to take care of I.H.
Appellant has allowed appellees limited visitation with I.H. at a restaurant in
Columbiana once every other week. Appellant believes this visitation is adequate
and additional visitation should not be granted. The GAL believes it to be in I.H.’s
best interest to have a relationship with appellees.
                                                                                -2-


       {¶6}   The magistrate then concluded it was important for I.H. to continue to
nurture a relationship with appellees.        He also found that appellant agreed.
Therefore, he made this an order of the court. However, the magistrate went on to
find that appellant’s concerns were real and not vindictive. Therefore, he overruled
appellees’ motion for expanded visitation.
       {¶7}   Appellees filed objections to the magistrate’s decision. They argued the
magistrate abused his discretion in denying their motion. They also requested an
oral hearing on their objections.
       {¶8}   The trial court scheduled a hearing on the objections.        But a week
before the scheduled hearing, the court cancelled the hearing and issued a judgment
entry noting that an oral hearing was not mandatory.          The court stated that it
reviewed the record and transcript and found the objections to be well taken. It noted
the parties had been unable to reach a visitation schedule agreement. It found that
appellees have a healthy relationship with I.H. The court further found that
communications between appellant and appellees are strained and therefore, it was
in I.H.’s best interest that the court establish a visitation schedule. The court granted
appellees visitation with I.H. in accordance with the court’s standard visitation
schedule for non-residential parents.     This includes overnight visits every other
weekend and visits every Wednesday evening. It also includes alternating holiday
visitation and evenly splitting summer vacations. The court noted that if the parties
came to some other agreed schedule they could submit it to the court for approval.
       {¶9}   Appellant filed a timely notice of appeal on September 27, 2013.
       {¶10} On appellant’s motion, this court granted a stay of the trial court’s order
pending this appeal.
       {¶11} Appellant raises two assignments of error, the first of which states:

              THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
       UNDER     THE     FOURTEENTH          AMENDMENT’S       DUE    PROCESS
       CLAUSE      BY    FAILING     TO      AFFORD     APPELLANT/FATHER’S
       PARENTAL DECISION SPECIAL WEIGHT.
                                                                               -3-


       {¶12} Appellant contends that R.C. 3109.11 is unconstitutional as applied to
him in this case. He asserts that because the court found he was a fit parent it
should have given special weight to his wishes regarding visitation. He also points
out the magistrate found that he has always made decisions that were in his
daughter’s best interest. Therefore, appellant argues, he should have the right to
decide when, where, and for how long his daughter visits with her grandparents.
Appellant further points out that he has provided appellees with the opportunity to
visit I.H. at his home, to speak to I.H. on the telephone, to “Skype” with her, and to
attend her soccer games and dance recitals. And appellant asserts the reason the
contact stopped between appellees and I.H. after the June 2012 argument was
because appellees stopped making requests to see or talk to I.H.
       {¶13} Appellant next argues there was no compelling reason presented by
appellees to disregard his wishes. In fact, he states, the evidence was that I.H. is
doing well in school, has many friends, and is involved in several extracurricular
activities. And he notes there was evidence that I.H. suffers from separation anxiety
since the loss of her mother. Thus, he contends that forcing her to visit with anyone,
even her grandparents, may be harmful to her.
       {¶14} Appellant goes on to argue that even if this court finds some compelling
reason for a visitation order, the standard visitation order for non-residential parents
ordered by the trial court is not narrowly tailored to fit this case. He points out that
even when I.H.’s mother was alive, appellees did not see I.H. as often as the
standard visitation order calls for. He argues that the standard visitation order is too
extensive and points to the every-other-weekend and half of all school vacations as
examples.     Appellant also asserts there is no case law that supports granting
grandparents a visitation schedule equivalent to that of a non-residential parent.
       {¶15} Finally, appellant points out that when asked why they never contacted
him to request visitation after the argument between the parties, appellees stated that
they did not feel comfortable doing so and would rather have the court “suggest”
visitation time.   Appellant argues that appellees’ “uncomfortableness” was not an
                                                                                -4-


appropriate reason for a court to get involved in a family matter.
       {¶16} R.C. 3109.11 provides for grandparent visitation rights when an
unmarried parent is deceased. The statute allows a court to grant a grandparent
reasonable visitation when it is in the best interest of the minor child. In examining
whether to grant visitation rights, the court must consider all relevant factors,
including, but not limited to, the best interest factors set forth in R.C. 3109.051(D) of
the Revised Code. R.C. 3109.11.
       {¶17} When determining whether a statute is unconstitutional as applied, the
burden is on the attacking party to present clear and convincing evidence of a
presently existing set of facts which makes the statute void and unconstitutional.
State v. Freeman, 7th Dist. No. 02-JE-42, 2003-Ohio-6730, citing State v. Dario, 106
Ohio App.3d 232, 665 N.E.2d 759 (1st Dist.1995).
       {¶18} Appellant cites to this court’s decision in Oliver v. Feldner, 149 Ohio
App.3d 114, 2002-Ohio-3209, 776 N.E.2d 499 (7th Dist.), in support of his position.
In Oliver, the trial court granted grandparent visitation to the paternal grandparents of
a child whose father was deceased.          The child’s mother was opposed to the
grandparents’ visitation. The trial court found it was in the child’s best interest to
have visitation with the grandparents. The trial court noted it should “give special
weight to the decision of a parent,” but rejected the mother's reasons for denying
visitation. The trial court granted the grandparents four to five hours per month of
visitation at their home. The mother appealed.
       {¶19} On appeal, the mother argued that the trial court did not properly
consider the best interest factors and did not give special weight to her wishes as
required by Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
She further asserted the trial court’s visitation order was an unconstitutional
infringement of her fundamental right to raise her daughter as she saw fit.
       {¶20} This court reviewed the Troxel decision in detail and pointed out that
Troxel requires the trial court give “special weight” to a parent’s wishes. Id. at ¶56.
We determined that “special weight” meant the deference provided to the parent's
                                                                                -5-


wishes could only be overcome by some compelling governmental interest and
overwhelmingly clear circumstances supporting that governmental interest. Id. at
¶59. We then concluded:

       It is clear from Troxel that the “special weight” that must be given to a
       parent's childrearing decisions has constitutional implications, and to
       overcome that “special weight,” there must be some showing of
       compelling reasons and circumstances to disregard the parent's
       wishes. We find no such compelling reasons either in the nonparental-
       visitation statute or the evidence presented in this case. Because we
       find no compelling interest at stake, it is also apparent that we cannot
       find that the resulting visitation order was narrowly tailored to achieve a
       compelling interest. Therefore, as applied to the facts of this case, the
       trial court's decision must be overturned.

Id. at ¶66; (Emphasis sic.)
       {¶21} After Oliver, the Ninth District was faced with a similar case in Estate of
Harrold v. Collier, 9th Dist. No. 03CA0064, 2004-Ohio-4331. In that case, the child
had resided with her mother and maternal grandparents. Years after the mother
died, the father was granted custody of the child and the grandparents filed a motion
for visitation. The magistrate granted visitation to the grandparents. The father filed
objections. The trial court found the child’s interest in maintaining a relationship with
the grandparents outweighed the father's wishes for no visitation. But it found Troxel
v. Granville, required courts to find “overwhelmingly clear circumstances” in support
of forcing visitation for the benefit of the child over the opposition of the parent.
Consequently, the trial court ruled that although the statutory factors seemed to
support visitation with the grandparents over the father’s objection, there was
insufficient proof to find overwhelmingly clear circumstances for overruling the
father’s wishes. Therefore, the trial court dismissed the grandparents’ motion for
visitation.
                                                                                    -6-


       {¶22} On appeal, the Ninth District found Troxel’s holding to be narrowly
construed to mean that the “sweeping overbreadth” of the Washington state
nonparental-visitation statute rendered the statute unconstitutional when applied. Id.
at ¶¶14, 18. The appellate court reversed the trial court's dismissal of the
grandparent’s visitation motion and remanded the case to the trial court.
       {¶23} On the father’s motion, the appellate court found its decision to be in
conflict with Oliver, supra, on the following issue:          “Whether Ohio Courts are
obligated to afford ‘special weight’ to the wishes of the parents of minor children
concerning non-parental visitation as outlined in Troxel v. Granville[.]”         The Ohio
Supreme Court determined that a conflict did exist and also accepted a discretionary
appeal. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165.
       {¶24} The Court first analyzed Troxel, 530 U.S. 57. It observed that at issue
in Troxel was a Washington statute that permitted “[a]ny person” to petition for
visitation rights “at any time” and authorized a court to grant such rights whenever the
visitation may serve a child's best interest. Id. at ¶8, citing Troxel, at 60. The Troxels
petitioned the court for visitation of their granddaughters following the death of the
girls’ father, their son. The mother objected. The trial court granted visitation, finding
it to be in the children’s best interest. The Washington Supreme Court held that the
Troxels were not entitled to a visitation order, because the Washington state statute
permitting such visitation unconstitutionally infringed on the fundamental right of
parents to rear their children.
       {¶25} On appeal, the United States Supreme Court found Washington's
visitation statute unconstitutionally infringed on the mother's fundamental right to
make decisions concerning the care, custody, and control of her children.                 In
reaching this conclusion, the Court recognized that “the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.” Id. at ¶9, citing Troxel, at
66. The Court ruled that the trial court disregarded the traditional presumption that a
fit parent acts in the best interest of his or her child. Id. at ¶10, citing Troxel, at 69. A
                                                                                 -7-


plurality of the Court went on to find that when the trial court intervened into the
private realm of the family, “it gave no special weight at all” to the mother's
determination of her children's best interests. Id. at ¶11, quoting Troxel, at 69. The
plurality found that if a fit parent's decision regarding nonparental visitation became
subject to judicial review, “the court must accord at least some special weight to the
parent's own determination.” (Emphasis sic.) Id., quoting Troxel, at 70.
       {¶26} The Harrold Court determined it would adopt Troxel’s plurality view and
held, “Ohio courts are obligated to afford some special weight to the wishes of
parents of minor children when considering petitions for nonparental visitation made
pursuant to R.C. 3109.11 or 3109.12.” Id. at paragraph one of the syllabus.
       {¶27} The Court went on to address the argument that Ohio’s nonparental
visitation statutes unconstitutionally infringed on a parent’s fundamental right to make
decisions regarding the care, custody, and control of his or her child. The Court
found the statutes constitutional after applying a strict-scrutiny test. Id. at ¶¶13, 40.
It determined the Ohio statutes were more narrowly tailored than the Washington
statute at issue in Troxel and also took into consideration the parent’s wishes and
concerns. Id. at ¶¶41, 42.
       {¶28} The Court also addressed the issue surrounding the presumption that a
fit parent acts in his or her child’s best interest:

       Further, while Troxel states that there is a presumption that fit parents
       act in the best interest of their children, nothing in Troxel indicates that
       this presumption is irrefutable. The trial court's analysis of the best
       interests of a child need not end once a parent has articulated his or her
       wishes. By stating in Troxel that a trial court must accord at least some
       special weight to the parent's wishes, the United States Supreme Court
       plurality did not declare that factor to be the sole determinant of the
       child's best interest. Moreover, nothing in Troxel suggests that a
       parent's wishes should be placed before a child's best interest. The
       state has a compelling interest in protecting a child's best interest, In re
                                                                                 -8-


       T.R. (1990), 52 Ohio St.3d 6, 18, 556 N.E.2d 439, and Ohio's
       nonparental-visitation statutes are narrowly tailored to serve that
       compelling interest. They are not, therefore, unconstitutional under
       Troxel.

Id. at ¶44.
       {¶29} In applying its findings to the facts of the case, the Harrold Court found
the trial court properly placed the burden of proving that visitation would be in the
child’s best interest on the grandparents, thereby honoring the presumption that a fit
parent acts in the best interest of his or her child. Id. at ¶45. It also noted the trial
court expressly weighed the father's opposition to visitation as a factor in its decision,
which the Court found protected the father’s due-process rights. Id. And it pointed
out the trial court ultimately decided the child's best interests in maintaining her
relationship with her grandparents outweighed the father's desire for no visitation. Id.
The Court observed that while the trial court did not use the words “special weight,” it
was clear that it gave due deference to the father's wishes and concerns regarding
visitation before determining it was in the child's best interest to grant the
grandparents' motion for visitation.     Id. Therefore, the Court affirmed the Ninth
District’s decision.
       {¶30} Based on the Ohio Supreme Court’s analysis in Harrold, we conclude
the trial court in this case did not constitutionally apply R.C. 3109.11 to appellant.
While the magistrate indicated through his analysis that he gave appellant’s wishes
special weight, the trial court made no such indication. There is nothing in the trial
court’s judgment entry to suggest that it weighed appellant’s opposition to visitation in
reaching its decision. Thus, appellant’s due process rights were not protected. The
trial court, without any recognition of appellant’s wishes, overruled the magistrate’s
decision that denied appellees’ motion for visitation.
       {¶31} Thus, appellant met his burden of showing that, under the presently
existing set of facts, the trial court unconstitutionally applied R.C. 3109.11 to him.
Appellant’s other arguments are more properly addressed in his second assignment
                                                                                 -9-


of error, which deals with determining what is in I.H.’s best interest.
       {¶32} Accordingly, appellant’s first assignment of error has merit.
       {¶33} Appellant’s second assignment of error states:

              THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
       BY FAILING TO CONSIDER THE BEST INTERESTS OF THE CHILD
       AS SET FORTH IN OHIO REVISED CODE SECTION 3109.051(D).

       {¶34} Here appellant points out the trial court failed to address any of the
statutory best interest factors in overruling the magistrate’s decision that it was not in
I.H.’s best interest to grant appellees an expanded visitation schedule. He points to
several factors that he contends support his position. First, he notes that while I.H.
knows appellees and has spent some time with them, the amount of time has not
been significant and an order for her to spend every other weekend with them is a
significant change to I.H.’s life and not in her best interest. Second, he points out
that he works a teacher’s schedule and therefore is available to be with I.H. when she
is not at school. Third, he points out that I.H. has suffered from separation anxiety
since her mother’s death and does not want to be away from him for extended
periods of time. And he asserts that the visitation schedule imposed by the court
would interfere with I.H.’s involvement in dance, soccer, and church.             Fourth,
appellant also points to his concerns with appellees’ mental health. He asserts that
the maternal grandmother even lied under oath about her mental health issues.
Finally, appellant points to his own wishes and concerns as he expressed to the court
that it not set any specific visitation schedule.
       {¶35} In reviewing a trial court’s grant of grandparent visitation and the court’s
analysis of the best interest factors, we apply an abuse of discretion standard of
review. In re F.D., 2d Dist. No. 23358, 2009-Ohio-4788, ¶10. Abuse of discretion
connotes more than an error of law or judgment; it implies the trial court’s judgment
was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
                                                                                      - 10 -


      {¶36} R.C. 3901.15(D) sets out the best interest factors for the court to
consider when determining visitation issues. The R.C. 3901.15(D) factors are:

             (1) The prior interaction and interrelationships of the child with
      the child's parents, siblings, and other persons related by consanguinity
      or affinity, and with the person who requested companionship or
      visitation if that person is not a parent, sibling, or relative of the child;
             (2) The geographical location of the residence of each parent
      and the distance between those residences, and if the person is not a
      parent, the geographical location of that person's residence and the
      distance between that person's residence and the child's residence;
             (3) The child's and parents' available time, including, but not
      limited to, each parent's employment schedule, the child's school
      schedule, and the child's and the parents' holiday and vacation
      schedule;
             (4) The age of the child;
             (5) The child's adjustment to home, school, and community;
             (6) If the court has interviewed the child in chambers * * *, the
      wishes and concerns of the child, as expressed to the court;
             (7) The health and safety of the child;
             (8) The amount of time that will be available for the child to
      spend with siblings;
             (9) The mental and physical health of all parties;
             (10) Each parent's willingness to reschedule missed parenting
      time and to facilitate the other parent's parenting time rights, and with
      respect to a person who requested companionship or visitation, the
      willingness of that person to reschedule missed visitation;
             (11) In relation to parenting time, whether either parent
      previously has * * * [been the perpetrator in a case where a child has
      been abused or neglected].
                                                                               - 11 -


               (12) In relation to requested companionship or visitation by a
      person other than a parent, whether the person previously has * * *
      [been the perpetrator in a case where a child has been abused or
      neglected, or been convicted of certain domestic violence offenses, or
      acted in a manner resulting in a child being an abused child or a
      neglected child;
               (13) Whether the residential parent or one of the parents subject
      to a shared parenting decree has continuously and willfully denied the
      other parent's right to parenting time in accordance with an order of the
      court;
               (14) Whether either parent has established a residence or is
      planning to establish a residence outside this state;
               (15) 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;
               (16) Any other factor in the best interest of the child.

      {¶37} The evidence, as applied to the above factors, was as follows.
      {¶38} As to the first factor, Mrs. Shenesky testified that prior to appellant’s
and Carrie’s divorce, appellees only saw I.H. on holidays and birthdays. (Tr. 9).
After the divorce in 2009, appellees visited with I.H. at least twice a month. (Tr. 11,
31). Mrs. Shenesky stated that I.H. occasionally spent the night at appellees’ home
and I.H. enjoyed her time there. (Tr. 12). She testified that she and her husband had
a strong relationship with I.H. (Tr. 12). Mrs. Shenesky further testified that after
Carrie died in December 2011, appellant continued to allow I.H. to visit with appellees
at his home and they attended her soccer games. (Tr. 13). This continued until June
2012, when the parties got into an argument at a soccer game regarding an
insurance policy. (Tr. 17, 36-37). After the argument, appellees stopped calling
appellant and asking to visit with I.H. (Tr. 37). Mrs. Shenesky acknowledged that
appellant extended an offer to appellees to visit with I.H. at his home but they did not
                                                                               - 12 -


respond because they did not feel comfortable going to his home. (Tr. 38). She also
acknowledged that appellant had been allowing I.H. to visit with appellees at the
Dutch House restaurant on Fridays. (Tr. 51-52). Mr. Shenesky testified that I.H. has
been enjoying those visits where they talk about school, books I.H. is reading, and
church. (Tr. 71).
       {¶39} Additionally, appellant testified that he allowed I.H. to talk on the phone
with appellees whenever they called and “Skype” with them on the computer. (Tr.
96).   And he stated that up until the argument at the soccer game, appellees
frequently requested and he frequently allowed them to come to his house to visit I.H.
(Tr. 95-96).
       {¶40} As to the second factor, appellant and I.H. reside in Columbiana, Ohio.
Appellees reside in Koppel, Pennsylvania, which is approximately 30 minutes from
Columbiana. (Tr. 34).
       {¶41} As to the third factor, Mrs. Shenesky stated that she works steady night
turn and her husband is retired. (Tr. 44, 47). Appellant testified that he is a high
school tutor and is off during the summer and is available to I.H. when she is not in
school. (Tr. 99, 103).
       {¶42} As to the fourth factor, I.H. was seven years old at the time of the
hearing.
       {¶43} As to the fifth factor, appellant stated that I.H is involved in dance and
soccer, and would be starting swim lessons. (Tr. 102). He also stated she is very
social and enjoys playing with her friends. (Tr. 102). And appellant testified I.H.
loves school and does very well. (Tr. 105).
       {¶44} The sixth factor, regarding I.H.’s wishes and concerns as expressed to
the court, is not applicable because the court did not interview I.H.
       {¶45} As to the seventh factor, there appeared to be no concerns regarding
I.H.’s health and safety.
       {¶46} The eighth factor, regarding sibling relationships, is not applicable
because I.H. does not have any siblings.
                                                                                - 13 -


       {¶47} As to the ninth factor, the physical and mental health of the parties, Mrs.
Shenesky testified that neither she nor her husband suffer from any physical
disabilities. (Tr. 44).   She further testified that she has never been treated for
depression or anxiety and has never taken any medication for those conditions. (Tr.
44-45). Mr. Shenesky testified that he takes a mild anti-depressant and attends grief
therapy since he is still dealing with the death of his daughter and his trouble
regarding visitation with I.H. (Tr. 68). Additionally, he testified that Mrs. Shenesky is
also attending counseling and taking medication. (Tr. 79). And appellant testified he
has no physical or mental health issues. (Tr. 112). Appellant also voiced concerns
regarding Mrs. Shenesky’s mental health.        (Tr. 113).   But the GAL opined that
appellant’s concerns were unfounded. (Tr. 153).
       {¶48} As to the tenth factor, dealing with the rescheduling of missed parenting
time, does not appear to apply here.
       {¶49} The eleventh and twelfth factors are inapplicable as there was no
evidence that any of the parties were ever involved with the matters covered in those
factors such as child abuse or neglect.
       {¶50} The thirteenth factor was likewise inapplicable because there had not
previously been a court order regarding visitation.
       {¶51} As to the fourteenth factor, appellant lives in Ohio. Appellees live in
Pennsylvania.
       {¶52} As to the fifteenth factor, appellant’s wishes and concerns, appellant
testified regarding I.H.’s adjustment to her mother’s death. He stated that she is
handling it the best she can. (Tr. 104). But he stated she suffers from separation
anxiety when she is away from him. (Tr. 104). Even when she visits a friend’s
house, appellant stated, I.H. wants him to stay with her. (Tr. 120). He stated that
she talks to the school counselor. (Tr. 105). Appellant further testified that I.H. does
not spend the night at friend’s houses. (Tr. 108). He stated she tried it once but I.H.
was not comfortable with it. (Tr. 108). Appellant testified I.H. does not even spend
the night at his parents’ house, even though she used to before Carrie’s death. (Tr.
                                                                               - 14 -


108).   Appellant stated he does not want to force I.H to do something she is
uncomfortable with. (Tr. 109). He testified he was “scared to death” about how
restricted guidelines regarding visitation would affect I.H.     (Tr. 109).   However,
appellant did agree that it was important for I.H. to maintain a relationship with
appellees. (Tr. 109). He stated that he approved of the weekly visits at the Dutch
House. (Tr. 110-111). Appellant emphasized though that I.H. does not like it when
he is not with her. (Tr. 120).
        {¶53} Appellant’s concerns were also addressed by his mother, Dianne
Harris. Mrs. Harris testified that I.H. is going through “an anxiety separation.” (Tr.
143). She stated that I.H. “clings” to appellant and that apart from going to school,
I.H. is always with appellant.   (Tr. 143).   Mrs. Harris stated that before Carrie’s
accident, I.H. used to stay with her for extended periods of time but since the
accident, she no longer does. (Tr. 143). Mrs. Harris testified that the only time she
spends with I.H. without appellant present is when she takes I.H. to the bus stop in
the morning. (Tr. 144).
        {¶54} And finally as to any other best interest factor, the GAL testified she
was in favor of the transitional visitation schedule suggested by appellees and she
believed that schedule to be in I.H.’s best interest. (Tr. 155, 160, 163). She also
testified, however, that when she spoke with I.H., I.H. expressed to her that while she
wanted to visit with appellees, she wanted them to come to her house and she was
not comfortable going to appellees’ house. (Tr. 180). And the GAL testified that she
believes appellant is a good, fit father who makes decisions in I.H.’s best interest in
every area except when it comes to appellees. (Tr. 183, 185).
        {¶55} In the present case, the magistrate recognized in his decision the
presumption that a fit parent acts in his child’s best interest and that the court must
give some special weight to the parent’s wishes. The magistrate went on to find that
appellant is a fit parent and recognized that appellant was concerned about
appellees’ ability to care for I.H. The magistrate further noted that appellant believed
the limited visitation he allowed between I.H. and appellees was adequate. And the
                                                                                - 15 -


magistrate noted appellant’s concern about I.H.’s separation anxiety. The magistrate
then found it was important for I.H. to continue to nurture a relationship with
appellees and noted that appellant agreed. Thus, the magistrate ordered the parties
continue to nurture the relationship between I.H. and appellees. Yet the magistrate
went on to overrule appellees’ motion for expanded visitation. The reason he did so
was because he gave special weight to appellant’s wishes and concerns:              “The
concerns of the Father are real and not vindictive, especially about the Subject
Child’s separation anxiety issue.     Wherefore, the motion for the Court to order
expanded visitation is overruled.”
       {¶56} The trial court, however, reversed the magistrate’s decision. It found
that appellees have a healthy relationship with I.H. It further found communication
between the parties was strained. Therefore, the court found in was in I.H.’s best
interest for it to establish a visitation schedule.    The court ordered the standard
visitation schedule for non-residential parents.
       {¶57} The standard visitation schedule provides in part as follows. I.H. will
visit with appellees on alternating weekends from 6:00 p.m. Friday until 6:00 p.m.
Sunday and from 5:00 p.m. to 8:00 p.m. every Wednesday. Appellant must give
appellees written notice at least seven-days prior to any travel with I.H. to exceed 48
hours. Appellant must give appellees written notice at least 60-days prior to moving.
Appellees are entitled to access I.H.’s school and medical records on the same terms
as appellant. Appellees and appellant are to alternate visitation on all major holidays
and I.H.’s birthday and school vacations.          I.H. will spend half of her summer
vacations with appellant and half with appellees.
       {¶58} Applying the best interest factors to the case at bar reveals that a
visitation order is in I.H.’s best interest. But the standard order of visitation ordered
by the trial court is excessive.
       {¶59} Firstly, and most importantly, the trial court did not give special weight
to appellant’s wishes and concerns regarding visitation. This alone was an abuse of
discretion. There was no question that appellant is a fit parent. And appellant gave
                                                                                 - 16 -


heart-felt reasons for not wanting a court-ordered visitation schedule.           As the
magistrate found, appellant is genuinely concerned about I.H.’s anxiety about being
separated from him. And appellant does not want to force I.H. into any situation that
could make her uncomfortable.         The court’s judgment entry, however, gives no
indication that it gave appellant’s wishes and concerns any special weight at all. The
trial court’s order, which goes above and beyond appellees’ requested schedule and
overrules the magistrate’s decision, fails to consider appellant’s wishes and concerns
       {¶60} The best-interest factors indicate, however, that visitation with
appellees is in I.H.’s best interest. All parties agreed it was in I.H.’s best interest to
maintain a relationship with appellees. The GAL found visitation, as suggested by
appellees, to be in I.H.’s best interest. I.H. has known and visited with appellees her
entire life. Mrs. Shenesky testified she has a strong relationship with I.H. The parties
live approximately 30 minutes away, which makes visits feasible.            The parties’
employment schedules also make visits feasible. I.H. is involved in several activities,
but still has time for at least weekly dinner visits with appellees. And while appellant
did raise some concern regarding appellees’ mental health, the GAL found these
concerns to be unfounded. Weighing these factors and giving special weight to
appellant’s wishes and concerns, a visitation schedule with appellees is in I.H.’s best
interest, yet not to the extent that the trial court ordered.
       {¶61} There do not appear to be any factually similar cases where such an
extensive grandparent visitation order was issued.          There are at least two other
cases where the trial court granted the grandparents a standard visitation order.
However, the facts of those cases are very different than those in the case at bar.
       {¶62} In In re A.C., 9th Dist. No. 23154, 2006-Ohio-6155, A.C.’s mother died
when she was eight years old. Her father then left A.C. in her grandmother’s custody
while he “got his life together.” The father visited with A.C. during that time. After two
years had passed during which the grandmother cared for A.C., the father told the
grandmother he was ready to have A.C. return to his home. The grandmother filed a
motion for legal custody of A.C. The trial court awarded the father legal custody of
                                                                                 - 17 -


A.C. and granted the grandmother standard visitation.            The grandmother then
appealed the denial of her motion for legal custody.
       {¶63} And in Harrold v. Collier, 9th Dist. No. 06CA0010, 2006-Ohio-5634, a
later decision following the Ohio Supreme Court’s remand to the trial court for a
visitation schedule in Harrold, 107 Ohio St.3d 44, the trial court granted the maternal
grandparents a visitation schedule very similar to the standard visitation schedule but
eliminating the mid-week visit.      The father appealed arguing the schedule was
grossly excessive for the grandparents. The Ninth District disagreed. The court
noted that for the first five years of her life, the child lived with the grandparents and
from the ages of two until five the grandparents were the child’s legal custodians. Id.
at ¶11. The court noted that because the grandparents functioned as the child’s
residential parents for a majority of her life, the trial court's visitation schedule
awarding them visitation similar to that of a non-residential parent could not be said to
be unreasonable. Id. The court also noted that the father never articulated his
reason for his opposition to visitation but only stated that he had a right to the care,
custody, and control of his child. Id. ¶10. The court stated that the father had not
provided a single reason why visitation was unreasonable. Id.
       {¶64} In the present case, unlike in A.C. and Harrold, I.H. has never lived with
appellees.   She lived with her parents when they were married, and after they
divorced, she resided alternately at her mother’s house and appellant’s house, which
were across the street from each other. Thus, she has never been in appellees’
custody. Moreover, unlike in Harrold, appellant has clearly articulated his reason for
his opposition to the proposed visitation schedule.
       {¶65} Thus, the cases which have granted standard visitation to grandparents
do not offer any support to the visitation order in this case.
       {¶66} Another problem with the standard order is that appellees did not even
seek such an extensive visitation schedule. Mrs. Shenesky testified regarding what
type of visitation appellees were seeking. Her counsel explained to her what the
standard order of visitation included and she specifically testified that she was not
                                                                               - 18 -


seeking the standard visitation order. (Tr. 24-25). Instead, she testified regarding an
order where appellees would gradually increase their visitation time. She stated that
for the first month they would visit for two hours a week. (Tr. 25). For the next
month, they would visit for four hours a week. (Tr. 25). For the third month, they
would visit for eight hours a week. (Tr. 25). And by the fourth month, she asked that
appellees have one overnight visit every other weekend. (Tr. 26).
       {¶67} As to summer visitation, Mrs. Shenesky testified that appellees were
not asking to have I.H. for half of the summer, but they would like to see her during
the summer. (Tr. 26). She stated they were asking the court to have two to three
weeks of visitation with I.H. during the 12-week summer. (Tr. 26, 28). And as to
holidays, Mrs. Shenesky testified:

       Q.      As far as holidays, such as Easter, which is, you know, coming
       up this weekend and Christmas and Thanksgiving, are you asking for a
       little bit of times on those holidays?
       A.      Not directly on the holiday. I - - I would think that I would want
       Dave [appellant] to have his time with [I.H.] on those holidays. I would -
       - you know, a day before, three days before, five days after. I’m so
       willing to just have her whenever.       It doesn’t necessarily mean a
       holiday, you know what I mean?
       Q.      I - - so you’re saying you can celebrate Christmas on the 23rd
       hypothetically?
       A.      Yes.
       Q.      But you want some time around there to celebrate the holidays
       with her?
       A.      Yes, please. Yes.

(Tr. 28-29).
       {¶68} The trial court’s standard visitation order is much more extensive than
what appellees requested. Additionally, it does not allow for any adjustment period
                                                                              - 19 -


as even Mrs. Shenesky recognized would be best. It simply jumps right into a two-
night visit at appellees’ home. And it elevates the grandparents into the role of a
non-residential parent.
      {¶69} In conclusion, the trial court abused its discretion in granting the
standard order of visitation in this case. There is no case law to support such an
order. Moreover, appellees did not request such an order. Most importantly, the
court did not give the required special weight to appellant’s wishes regarding
visitation and his concerns regarding I.H.’s separation anxiety. Thus, while the best
interest factors support a visitation order, the standard order of visitation issued in
this case is excessive and was an abuse of discretion by the trial court.
      {¶70} Accordingly, appellant’s second assignment of error has merit.
      {¶71} For the reasons stated above, the trial court’s judgment is hereby
reversed.   The matter is remanded for the trial court to fashion a more limited,
reasonable visitation schedule, not to exceed the schedule suggested by appellees.

Waite, J., concurs.

DeGenaro, P.J., concurs.
