[Cite as In re G.R.-Z., 2017-Ohio-8393.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: G.R.-Z. AND C.R.-Z.                           C.A. No.     28316



                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
                                                     CASE Nos. LC 15-10-0218
                                                                LC 15-10-0219

                                 DECISION AND JOURNAL ENTRY

Dated: November 1, 2017



        CARR, Judge.

        {¶1}     Appellant S.Z. and cross-appellant R.K. have appealed the judgment of the

Summit County Court of Common Pleas, Juvenile Division. This Court reverses and remands.

                                                I.

        {¶2}     S.Z. (“Domestic Partner”) and R.K., fka R.R. and R.R.-Z., (“Mother”) were in a

romantic relationship for a number of years. Same-sex marriage was not legally recognized

during the course of their relationship, and the two never married.        They did, however,

participate in a civil commitment ceremony. Mother conceived twins (G.R.-Z. and C.R.-Z.,

d.o.b. 1/5/2012) while the women were still romantically involved. J.A. donated his sperm for

the conception and signed an agreement relinquishing his parental rights to the children and
                                                2


releasing him from any obligation to pay child support.1 Genetic testing established J.A. as the

biological father of the twins. Mother intended for J.A. to remain a part of the children’s lives

and that the parties would refer to J.A. as an uncle until Mother decided to tell them about their

conceptions.

       {¶3}    Mother’s and Domestic Partner’s relationship soured, and the women separated in

March 2014. Domestic Partner moved out of Mother’s home, where the children resided, in July

2014. In June 2015, the parties executed an agreement whereby Domestic Partner was to have

some visitation with the children, as well as an obligation to bear some financial responsibility

for their “basic living expense[s].”

       {¶4}    In October 2015, Domestic Partner initiated an action in the juvenile court by

filing a “motion for legal custody” of the children, and appending the parties’ agreement and a

parenting proceeding affidavit. Pending hearing on the motion, Domestic Partner had weekly

two-hour supervised visitations with the children. In April 2016, Domestic Partner moved the

court for an order allowing her sister to attend visitations with her. A few weeks later, the

juvenile court expanded Domestic Partner’s visitation to weekly four-hour unsupervised

visitations on alternating Saturdays and Sundays.

       {¶5}    Mother moved to dismiss Domestic Partner’s motion for legal custody pursuant to

Civ.R. 12(C) on the pleadings. Domestic Partner responded in opposition, while J.A. joined in

Mother’s motion to dismiss. The juvenile court denied the motion to dismiss.

       {¶6}    The matter proceeded to hearing on Domestic Partner’s motion for legal custody.

The juvenile court issued its judgment in which it found that (1) Mother contractually


1
 That contract is not part of the record. Moreover, Mother and J.A. claim that they no longer
consider that agreement to be valid. This Court takes no position on the validity of that
agreement.
                                                  3


permanently relinquished some portion of her right to exclusive custody of the children, (2)

Domestic Partner failed to demonstrate that it was in the best interest of the children that Mother

and Domestic Partner share custody, and (3) the juvenile court lacked the jurisdiction to award

Domestic Partner visitation with the children. Domestic Partner and Mother timely filed their

respective notices of appeal and cross-appeal. Mother and Domestic Partner each raise one

assignment of error for review.

                                                  II.

                          MOTHER’S ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED [ITS] DISCRETION IN RULING THAT
       [MOTHER] RELINQUISHED PARTIAL CUSTODY RIGHTS TO
       [DOMESTIC PARTNER].

       {¶7}    Mother argues that the juvenile court erred by finding that she intended to

permanently relinquish a portion of her custodial rights to the children. This Court agrees.

       {¶8}    The Supreme Court of Ohio has recognized the right of a parent to enter into a

contract to share custody with a non-parent. In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660,

¶ 48-50. The Bonfield court did so in recognition of the “goal of providing a stable environment

for the children’s growth.”       Id. at ¶ 36.   More recently, the Supreme Court of Ohio has

recognized that a parent, through mere conduct, may create a contract with a non-parent to share

legal custody of children. In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, ¶ 14. What has

remained constant, however, is Ohio’s refusal to recognize a shared parenting agreement

between a parent and non-parent. Id. at ¶ 11, citing Bonfield at ¶ 35, and R.C. 3109.04.

       {¶9}    In this case, Mother and Domestic Partner entered into a written agreement in the

interest of “rais[ing] the children in a stable and loving environment.” The contract purported to

grant Domestic Partner some visitation with the children, as well as a financial obligation to pay
                                                 4


one-third of the cost of shelter, food, and childcare for the children every month, plus one-half of

any out-of-pocket expenses exceeding $150 for medical and dental emergencies or conditions.

Significantly, throughout the contract, Mother was consistently referred to as “custodial parent,”

while Domestic Partner was referred to as “non-custodial parent.”            Nowhere is there an

expressed intent to share custody; in fact, the agreement reflects that only Mother would have

custody. By consistently characterizing Domestic Partner’s interest as “non-custodial,” the plain

language of the agreement shows that Mother never intended to relinquish any portion of her

custody of the children.    The only contractual mechanism recognized under Ohio law which

allows a parent and non-parent to share in the rights and responsibilities relevant to the care and

upbringing of children is a shared custody agreement. See In re Bonfield, 2002-Ohio-6660, at ¶

48-50; In re Mullen, 2011-Ohio-3361 (recognizing shared custody agreements whether

expressed in writing or implied by conduct). Here, the parties chose to express their intent in

writing. However, there is nothing in their written agreement that evidences any intent by

Mother to share custody with Domestic Partner. In fact, the clear intent is that Mother would

retain undivided custody of the children.

       {¶10} Moreover, the parol evidence rule prohibits consideration of any oral agreements

or conduct by the parties to confer shared custody. The Supreme Court of Ohio has written:

       [T]he parol evidence rule is a rule of substantive law that prohibits a party who
       has entered into a written contract from contradicting the terms of the contract
       with evidence of alleged or actual agreements. When two parties have made a
       contract and have expressed it in a writing to which they have both assented as the
       complete and accurate integration of that contract, evidence, whether parol or
       otherwise, of antecedent understandings and negotiations will not be admitted for
       the purpose of varying or contradicting the writing.

(Internal quotations omitted.) Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio

St.3d 546, 2009-Ohio-3554, ¶ 14, quoting Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75
                                                5


Ohio St.3d 443, 440 (1996), quoting 3 Corbin, Corbin on Contracts 357, Section 573

(1960). In addition, the Supreme Court of Ohio has emphasized that


        [T]he best way to safeguard both a parent’s and a nonparent’s rights with respect
        to children is to agree in writing as to how custody is to be shared, the manner in
        which it is shared, and the degree to which it may be revocable or permanent, or
        to apply to a juvenile court for an order under R.C. 2151.23(A)(2) establishing the
        scope of the legal custody that the parent desires to share, or both.

In re Mullen at ¶ 21, citing Bonfield at ¶ 9.

        {¶11} Here, the parties memorialized their intent in a written agreement. The

preamble stated: “The clauses below form an agreement between the custodial and

noncustodial parents where the health, safety and development of [the children] is the

sole and foremost concern.” As the June 2015 written contract embodied the parties’

agreement, this Court is precluded from considering whether their conduct might have

given rise to an agreement to share custody of the children.


        {¶12} The plain language of the parties’ agreement indicates no intent to enter

into a shared custody agreement. As there was no valid shared custody agreement

between the parties, the juvenile court erred by finding that Mother permanently

relinquished some of her custodial rights regarding the children. Mother’s assignment of

error is sustained.


                      DOMESTIC PARTNER’S ASSIGNMENT OF ERROR

        THE COURT ERRED IN DEPRIVING [DOMESTIC PARTNER] OF HER
        CUSTODIAL RIGHTS WITHOUT A TRIAL AND ADJUDICATION ON THE
        MERITS OF HER FITNESS AND THE BEST INTEREST OF THE
        CHILDREN.

        {¶13} Domestic Partner argues that the juvenile court erred by effectively bifurcating

the hearing and refusing to consider evidence regarding the best interest of the children when it
                                                 6


denied her the opportunity to exercise her contractual custodial rights. Based on this Court’s

resolution of Mother’s assignment of error, Domestic Partner’s assignment of error has been

rendered moot.

       {¶14} The high court in Mullen set out the applicable test to determine whether to order

shared custody between a parent and a non-parent. Mullen at ¶ 12. First, the court must

determine whether a contract (written or implied by conduct) exists which confers custodial

rights on the non-parent. Id. If so, then the court must consider the second prong of the test, i.e.,

whether it is in the best interest of the children to order shared custody. Id. If, however, there is

no contract evidencing the intent for the parent and non-parent to share custody, the trial court

need not consider whether shared custody would be in the best interest of the children. Id. As

this Court has previously determined that there was no contract for shared custody, the juvenile

court was not required to consider whether shared custody was in the best interest of the

children.   This Court renders no conclusion regarding whether the juvenile court in fact

considered the issue of best interest. Moreover, as Domestic Partner did not challenge the

juvenile court’s refusal to grant her visitation with the children, we decline to consider that issue

also. Domestic Partner’s assignment of error is moot.

                                                III.

       {¶15} As a final note, this Court is concerned that no guardian ad litem was appointed to

represent the best interest of the children. Although it was a moot point in this case because the

parties had not attempted to enter into a shared custody agreement, where such an agreement

exists and implementation of that agreement hinges on the best interest of the children, the

appointment of a guardian ad litem is warranted.
                                                 7


                                                IV.

       {¶16} Mother’s assignment of error is sustained. Domestic Partner’s assignment of

error is moot and we decline to address it. The judgment of the Summit County Court of

Common Pleas, Juvenile Division, is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant/Cross-Appellee.




                                                      DONNA J. CARR
                                                      FOR THE COURT
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HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MARY ELLEN LESLIE, Attorney at Law, for Appellant/Cross-Appellee.

CHELSAY B. FINNEY, Attorney at Law, for Appellee/Cross-Appellant.
