[Cite as S.D. v. K.H., 2018-Ohio-1181.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105244



                                              S.D.
                                                     PETITIONER-APPELLANT

                                               vs.


                                          K.H., ET AL.
                                                     RESPONDENTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Domestic Relations Division
                                    Case No. DR-16-363671

        BEFORE: Kilbane, P.J., Stewart, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                    March 29, 2018
ATTORNEYS FOR APPELLANT

Leeann M. Massucci
Colleen L. Marshall
Massucci Law Group, L.L.C.
250 Civic Center Drive, Suite 600
Columbus, Ohio 43215



ATTORNEY FOR APPELLEE

Leslie Johns
The Martinez Firm
4230 S.R. 306, Suite 240
Willoughby, Ohio 44094


Also Listed:

M.T.
5831 Eldon Drive
Parma Heights, Ohio 44130
MARY EILEEN KILBANE, P.J.:

       {¶1} Petitioner-appellant, S.D. (“Mother 2”), appeals from the decision of the

domestic relations court, denying her petition to register a foreign parentage order. For

the reasons set forth below, we affirm.

       {¶2} The underlying facts of this appeal present us with a situation where

mother-respondent-appellee, K.H. (“Mother 1”), and M.T. (“Father”), the biological

parents of the minor child, A.T. (d.o.b. 2/17/2006), divorced in November 2007. The

terms of the divorce decree provided Mother 1 with full and legal custody of A.T. and

Father with visitation rights. The decree also provided that Mother 1 could relocate

without notice to Father.

       {¶3} Shortly after the divorce, Mother 1 and Mother 2 began a relationship. In

September 2008, Mother 1, Mother 2, and A.T. moved to California. The three of them

lived together as a family with Mother 1 and Mother 2 sharing parenting responsibilities.

Mother 2 was the “stay-at-home parent.”         Mother 1 and Mother 2 ended their

relationship in May 2010, at which point in time the women continued to share parenting

responsibilities and split their parenting time 50/50 until July 2013, when Mother 1

ceased A.T.’s contact with Mother 2.

       {¶4} In response, Mother 2 sought to legally formalize her parental role in A.T.’s

life by filing with the Superior Court of California, County of Santa Clara (“California

Court”) a Petition to Establish Parental Relationship. In October 2013, the California
Court entered temporary orders giving Mother 2 custody and visitation rights. At a

hearing in January 2014, Mother 1 withdrew her objection to Mother 2 being recognized

as a parent, and the court issued a parentage order that was stipulated to by both Mother 1

and Mother 2. This parentage order found Mother 2 to be a parent of A.T. Thereafter,

the two women shared joint physical custody of A.T., and Mother 2 continued her

parenting responsibilities.

         {¶5} In 2016, Mother 1 filed a request for orders in the California Court, seeking

permission to move back to Ohio with A.T. Prior to the California Court’s ruling on the

motion, Mother 1 returned to Ohio with A.T. in April 2016. In the interim, Father filed a

motion with the California Court requesting to set aside the 2014 parentage order. A

hearing was held on the matter in June 2016. At this hearing, the California Court

indicated that it would contact the Domestic Relations Division of the Cuyahoga County

Common Pleas Court (“Ohio Court”) to determine whether the Ohio Court wished to

relinquish jurisdiction over issues related to A.T.’s custody and visitation to the California

Court.

         {¶6} On June 30, 2016, the Ohio Court communicated its findings in the matter

with the California Court through a letter and a copy of its judgment entry. In the letter,

the Ohio Court advised that it has exclusive and continuing jurisdiction over any custody

and parenting determinations with respect to A.T. The Ohio Court also noted that R.C.

3109.051(B)(1) does permit it to grant reasonable companionship or visitation rights to a

third party where the court determines that such companionship or visitation is in the best
interest of the child. The Ohio Court advised that should Mother 2 “wish to pursue

visitation rights pursuant to the Ohio Revised Code, she would need to file a motion to

intervene in the matter before our Court and file the appropriate motion to seek

visitation.”

       {¶7} In the judgment entry, the Ohio Court found that it has “exclusive continuing

jurisdiction over any custody and parenting determinations with respect to [A.T. under]

the Uniform Child Custody Jurisdiction and Enforcement Act (‘UCCJEA’), when it

issued a parenting order on November 8, 2007, as part of a decree of divorce between

[Mother 1 and Father].”1 The court reasoned that under both Ohio and California law,

when at least one of the parents still resides in the state that made the original custody

determination, that state has exclusive, continuing jurisdiction to modify its own order.

The court stated that this is the law in both Ohio and California. The court went on to

state that “at no time did [the Ohio Court] decline to exercise its exclusive continuing

jurisdiction over the parties and [A.T.], or consent to the California [C]ourt assuming


       1 The  UCCJEA was “adopted by the Ohio General Assembly in 2004 and
became effective in 2005.”         Mulatu v. Girsha, 12th Dist. Clermont No.
CA2011-07-051, 2011-Ohio-6226, ¶ 15. The UCCJEA “provides an open door to the
judicial system so that issues related to child custody can be determined and
enforced despite a parent’s choice to relocate around the country, or the world.” Id.
 The main provisions of the UCCJEA include: “determining when states can
exercise jurisdiction over a child; requiring states to enforce custody
determinations; forbidding states from modifying custody determinations made by
other states unless the other state no longer had jurisdiction under the Uniform
Act; requiring states to decline jurisdiction if another state had assumed
jurisdiction; and permitting states to decline jurisdiction if another state would offer
a more convenient forum.” Id. at ¶ 14. The UCCJEA grants jurisdictional priority
and exclusive continuing jurisdiction to the home state. Id.
jurisdiction over the issue of parenting [A.T.].” The Ohio Court concluded that “the

orders issued by the [California Court] involving [A.T.] are void as a matter of law.”

The Ohio Court further found that “the custody and visitation orders issued by this Court

on November 8, 2007 and June 14, 2016, were the only valid parenting orders with

respect to [A.T.].”

       {¶8} Thereafter, on July 19, 2016, the California Court issued the following

findings: (1) the jurisdictional provisions of the UCCJEA do not apply to a parentage

determination; (2) the jurisdictional provisions of the UCCJEA do apply to custody and

visitation orders, and Ohio retained continuing and exclusive jurisdiction over all issues

related to A.T.’s custody and visitation; and (3) Father had proper notice of the

proceedings. In light of these findings, the California court denied Father’s request to set

aside the original parentage order and stayed all custody and visitation orders issued in the

proceedings.

       {¶9} Then on September 2, 2016, Mother 2 filed a petition to register the foreign

parentage order with the Ohio Court, seeking to enforce the parentage order issued by the

California Court.     Mother 1 and Father each opposed Mother 2’s petition.           In her

opposition, Mother 1 also requested a hearing to contest the registration of the foreign

parenting order. The court denied Mother 2’s petition in November 2016. The court

found that it has “exclusive continuing jurisdiction over custody matters pertaining to

[A.T.], and that the California Court’s February 2014 judgment is void for lack of

subject-matter jurisdiction.”
       {¶10} We note that at the time Mother 2 filed her petition in the instant case, she

contemporaneously filed a motion to intervene, a motion for immediate parenting time,

and a motion for shared parenting or custody (or to modify same) in the original divorce

case between Mother 1 and Father. The Ohio Court denied Mother 2’s motion to modify

parenting time, but granted her motion to intervene and renamed her motion for

immediate parenting time as a motion for companionship time. The court appointed a

guardian ad litem for A.T. and the matter was set for trial in April 2017. However,

through an agreed judgment entry, the matter was stayed by the trial court pending a

decision in the instant appeal.

       {¶11} Mother 2 now appeals the trial court’s denial of her petition to register the

foreign parentage order, and raises the following assignment of error for review.

                                   Assignment of Error

       The [Ohio Court’s] denial of the registration of the [California Court’s]
       Foreign Parentage Order No. 392242 is a violation of the Full Faith and
       Credit Clause, Article IV, Section 1, of the United States Constitution.

       {¶12} Mother 2 maintains that the California Court had the authority to adjudicate

parentage under California law, and that the parentage adjudication is a legal and

permanent parent-child relationship equivalent to an adoption.2 She argues that the issue

of parentage is separate from the issue of custody and visitation, and the California Court



       2Wenote that California is the first state to formally recognize that a child
can have more than two legal parents. As of January 2014, a child in California
may have more than two legal parents if limiting the child to two parents would be
detrimental to the child. Cal.Fam.Code 7612(c).
did not interfere with the Ohio Court’s jurisdiction over custody and visitation. As a

result, she contends that the Ohio Court erred in not giving her parentage order full faith

and credit under Ohio law and recognizing her status as a parent to A.T.

       {¶13} In this case of first impression, our discussion is limited to determining

whether the trial court’s decision “that the California Court’s February 2014 judgment is

void for lack of subject-matter jurisdiction” was proper. While we are cognizant of the

best interest of the child — the underlying tenet in child-custody determinations, we agree

with the trial court’s finding that “the California Court’s February 2014 judgment is void

for lack of subject-matter jurisdiction.”

       {¶14} From what can be gleaned in this limited record, Mother 1 and Father were

divorced by decree in the Ohio Court in November 2007. In September 2013, Mother 2

initiated court proceedings in California to establish a legal parental relationship with

A.T.

       {¶15} Both Ohio and California have enacted the UCCJEA. See R.C. Chapter

3217 and Cal.Fam. Code Chapter 3400. Relevant to this appeal, R.C. 3127.16 provides:

“a court of this state that has made a child custody determination consistent with [R.C.

3127.15 or 3127.17] has exclusive, continuing jurisdiction over the determination until

the court or a court of another state determines that the child, the child’s parents, and any

person acting as a parent do not presently reside in this state.” (Emphasis sic.)

       {¶16} R.C. 3127.01(B)(3) defines child-custody determination as

       a judgment, decree, or other order of a court that provides for legal custody,
       physical custody, parenting time, or visitation with respect to a child.
       “Child custody determination” includes an order that allocates parental
       rights and responsibilities.

(Emphasis sic.) R.C. 3127.01(B)(4) defines child-custody proceedings

       to include a proceeding in which legal custody, physical custody, parenting
       time, or visitation with respect to a child is an issue. “Child custody
       proceeding” may include a proceeding for divorce, separation, neglect,
       abuse, dependency, guardianship, parentage, termination of parental rights,
       or protection from domestic violence.

(Emphasis sic.)

       {¶17} In the instant case, the Ohio Court made the initial custody determination as

part of the divorce decree between Mother 1 and Father, and Father has lived in Ohio

continuously since that initial determination. At no time since then has the Ohio Court

declined jurisdiction, nor has it consented for the California Court to assume jurisdiction.

As a result, under the UCCJEA, the Ohio Court retains exclusive, continuing jurisdiction

over custody and parenting determinations with respect to A.T. See R.C. 3127.16 and

Cal.Fam.Code 3422.

       {¶18} The court proceedings initiated by Mother 2 in California established a legal

parental relationship with A.T. while the Ohio Court had exclusive, continuing

jurisdiction over the matter.     Because the Ohio Court has exclusive, continuing

jurisdiction, the California Court did not have subject-matter jurisdiction to make a

parenting determination regarding A.T. “Subject-matter jurisdiction is fundamental. It

defines the court’s power to decide cases.      Subject-matter jurisdiction can never be

waived; any decision entered without subject-matter jurisdiction is void.” Francis David

Corp. v. Scrapbook Memories & More, 8th Dist. Cuyahoga No. 93376, 2010-Ohio-82,
¶ 17, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992.

Therefore, the Ohio Court properly concluded that the California Court’s parenting order

is void and has no effect in the Ohio Court.

       {¶19} While Ohio does not recognize more than two legal parents, the trial court

aptly advised the parties that Ohio law does permit the court to grant “companionship or

visitation rights to any grandparent, any person related to the child by consanguinity or

affinity, or any person other than parent[.]” (Emphasis added.) R.C. 3109.051(B)(1).

The trial court has allowed Mother 2 to proceed with a motion for companionship in the

original divorce case between Mother 1 and Father. Following our decision in this

appeal, the companionship matter will proceed to trial where the trial court can make a

best-interest determination as to A.T. and her relationship with Mother 2.3

       {¶20} Thus, in light of the foregoing, Mother 2’s sole assignment of error is

overruled.

       {¶21} Accordingly, judgment is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the domestic


       3The  best interest of the child factors include, but are not limited to: the
child’s wishes; the child’s age; the child’s interaction and interrelationships with the
child’s parents, siblings, and any other person who may significantly affect the
child’s best interest; the health and safety of the child; the mental and physical
health of all person involved; the child’s adjustment to the child’s home, school, and
community; and the recommendation of the guardian ad litem of the child. R.C.
3109.04(F)(1)-(2).
relations division of the common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

MELODY J. STEWART, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
