[Cite as I.C.-R. v. N.R., 2016-Ohio-1329.]


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

I.C.-R.                                             C.A. No.       27671

          Appellant

          v.                                        APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
N.R.                                                COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
          Appellee                                  CASE No.   2013-08-2324

                                  DECISION AND JOURNAL ENTRY

Dated: March 30, 2016



          WHITMORE, Judge.

          {¶1}   Appellant, I.C.-R. (“Wife”), appeals from the order of the Summit County

Domestic Relations Court granting custody of minor son (“M.”) to Appellee, N.R. (“Husband”).

We affirm.

                                                I

          {¶2}   M. was born in September 2012 during the parties’ marriage. Husband also had

sole custody of a school-age daughter (“A.”) from a previous relationship.

          {¶3}   Husband left the marital residence in July 2013 when M. was about 10 months

old. Wife filed for divorce in August 2013. She moved for physical and legal custody of the

child. Husband also requested custody.

          {¶4}   After a two-day hearing, the domestic relations court entered a final decree in

January 2015 granting physical and legal custody of M. to Husband, and visitation to Wife.

Wife previously had been the child’s custodial parent and primary caretaker since birth.
                                                2


       {¶5}   Numerous witnesses testified at the two-day hearing. They were:

              First Day

              (1)     Wife;

              (2)     James Brightbill (Guardian Ad Litem (“GAL”));

              (3)     Officer Vecchio (Twinsburg Police);

              (4)     Officer Hendershott (Twinsburg Police);

              (5)     Joseph McGrath (parents’ mutual friend/acquaintance);

              (6)     Bobbi Phipps (parents’ mutual friend/acquaintance);

              (7)     Maria Whitt (Wife’s sister);

              (8)     Lawrence Milne (Husband’s stepfather);

              (9)     Russell Roth (Husband’s father);

              (10)    Chris Derry (Common Ground Family Services director);

              Second Day

              (11)    Husband; and

              (12)    Dr. Janet Levatin (M.’s pediatrician).

       {¶6}   Husband testified that he left the marital residence after a dispute with Wife over

her refusal to vaccinate the child. He claimed that Wife spent significant time living with M. at

the maternal grandfather’s house and away from the marital residence because she was afraid

that M. would be exposed to illnesses in the marital apartment. Husband also claimed that Wife

unfairly berated A., called her names, and isolated her for fear that she would bring home germs.

Wife denied mistreating A.

       {¶7}   Wife testified that the parties’ marriage began to deteriorate two years before

Husband left, when Husband was involved in an incident that culminated in Husband pleading
                                                  3


guilty to misdemeanor criminal trespass. Wife testified that Husband was charged for slashing a

female neighbor’s car and threatening the neighbor and a girlfriend in the neighbor’s home.

Husband was initially charged with burglary, but pled to the lesser charge. At the hearing in this

matter, Husband admitted that he entered a guilty plea to criminal trespass but denied

committing the offense.

       {¶8}      Wife testified that Husband left the marital residence without warning.      She

testified that Husband had a serious drinking problem. Wife further testified that, after M. was

born, Husband frequently did not come home after work, and sometimes stayed out all night.

Wife averred that Husband had little interest in M., got angry when he got dirty as a result of

taking care of M., and did not take any significant part in the child’s daily care.

       {¶9}      Mr. McGrath, a work acquaintance of both parents during the marriage, testified

that Husband confided in him early in 2013 prior to leaving the marital residence. Mr. McGrath

claimed that he and Husband had gotten together to play video games. According to Mr.

McGrath, Husband was upset that Wife was spending so much time with M., and was not sure

that he could handle being a parent. Mr. McGrath testified that Husband disclosed thoughts

about suicide.

       {¶10} Husband disputed Mr. McGrath’s testimony. Husband testified that he was not

social friends with Mr. McGrath outside of work, he never confided in Mr. McGrath, he never

told Mr. McGrath that he was suicidal or did not want to be a father, and that Mr. McGrath had

made up the conversation. Husband testified that he was not suicidal.

       {¶11} A magistrate held a hearing in October 2013 on temporary support and custody.

Husband testified that he tried to arrange to visit M. between the time that he left the marital
                                                    4


residence in July 2013 and the hearing, but Wife would not let him see M. Wife denied that

Husband tried to visit M. during this period.

       {¶12} At the hearing before the magistrate, and at the final hearing before the domestic

relations court, each parent accused the other of exercising poor judgment when caring for M.

Wife argued that Husband was not capable of watching M. on his own. She claimed that before

M. turned a year old, Husband was bathing M. in a shower stall when M. fell out and bruised his

face. Wife claimed that Husband was playing on his phone at the time. She testified that

Husband left the residence abruptly after the incident. Husband disputed Wife’s version of

events. He claimed that M. was in the shower stall but in a bath seat for infants, and that he

slipped from Husband’s grasp while wet and soapy. M. had a bruise but that there was no

bleeding or broken skin. Husband denied being on the phone. Wife also testified about an

incident when M. was a young infant and Husband let M. sleep on the couch while Husband fell

asleep on the floor. Wife discovered M. with a couch cushion on his face, but with no injuries.

       {¶13} Husband argued that he was capable of taking care of M. on his own, as shown by

the fact that he had raised A. since he obtained sole custody of her in 2005. Husband testified

that he was concerned about Wife’s choice to forgo vaccinations for M. He also was concerned

that Wife took M. to see a homeopathic pediatrician who did not administer vaccines and

recommended that M. take homeopathic supplements and remedies at age two for anxiety and

other conditions. Husband wanted to take M. to the pediatrician who had cared for his daughter.

Husband also recalled an incident when Wife was nursing M. in the back seat of a moving car

and did not want to put M. in an infant car seat.

       {¶14} Following the hearing on temporary support and custody, the magistrate awarded

temporary custody to Wife. Husband was awarded supervised visitation for two hours in the
                                                5


evenings on Tuesdays and Thursdays. It was agreed that a mutual friend from work, Bobbi

Phipps, would be present to supervise visitation at Wife’s apartment.         Wife testified that

Husband selected Ms. Phipps to supervise visitation. Husband testified that Ms. Phipps was a

mutual choice.

         {¶15} Ms. Phipps testified that Husband only missed one scheduled visitation during a

period of two or three months, with the exception of several occasions when Ms. Phipps was

unavailable. Husband testified that Wife frequently was not home when he arrived for visitation

on the appointed days. Wife testified that Husband “only showed up [for visitation] a handful of

times,” and that he arrived late and departed early. According to Ms. Phipps, the visitations were

tense.

         {¶16} It became less feasible for Ms. Phipps to supervise Husband’s visitation in early

2014. For visits on March 18 and 20, Husband brought his stepfather, Mr. Milne. Wife’s father,

the child’s maternal grandfather, was also present during the March 20 visit. During that visit,

Wife, Husband, and the maternal grandfather got into a dispute about the cleanliness of the

apartment and whether it was appropriate for M. to eat a piece of fruit that had been on the floor

or in Husband’s hand. According to Wife, Husband followed her into the kitchen and pushed

her. She testified that she nearly fell but was able to catch herself. Wife called the police.

Officer Hendershott was dispatched to the scene. Husband and Mr. Milne had left by the time he

arrived.

         {¶17} Officer Hendershott observed a bruise on the back of Wife’s upper right arm

consistent with her description of the events. Photographs were taken. Officer Hendershott

testified that the following day Wife provided additional photographs depicting apparent bruising
                                                 6


that was not visible in the initial photographs. Officer Hendershott testified that the additional

bruising may not have become visible immediately after the events in question.

       {¶18} Later on March 20, Officer Hendershott arrested Husband for domestic violence.

In a statement provided to police Husband asserted that he did not touch Wife or push her. He

testified that Wife’s father, the child’s maternal grandfather, pushed him. Husband testified that

the maternal grandfather was an alcoholic and a bully. The maternal grandfather could only

speak limited English and therefore did not provide a statement to police.

       {¶19} Husband was charged with misdemeanor domestic violence, but eventually pled

to a lesser charge of disorderly conduct. He testified that the decision to enter a plea was a

“business decision” and maintained that he did not touch Wife. Mr. Milne also testified that

Husband did not push Wife, and that the maternal grandfather was the aggressor who pushed

Husband. Mr. Milne testified that Husband wanted to file a police report on March 20, but that

Mr. Milne convinced him to not bother because Mr. Milne felt that a police report would not do

any good.

       {¶20} Wife was granted a civil protection order as a result of the March 20 incident.

The civil protection order was dismissed in October 2014 for failure to prosecute when Wife did

not appear for a hearing. Wife and her counsel asserted that they did not receive notice of the

hearing.    Wife did not file objections to the dismissal.     The dismissal was journalized in

November 2014.

       {¶21}     Prior to dismissal, the civil protection order was modified in April 2014 to allow

Husband one hour of visitation per week with M. at Common Ground Family Services

(“Common Ground”) visitation center. Mr. Derry, the director and owner of Common Ground,

and a licensed social worker in Ohio, testified at the hearing in this case. He testified that Wife
                                                 7


did not cooperate in scheduling an initial intake interview at Common Ground, which resulted in

a delay in scheduling Husband’s visitation. He testified that Wife also did not cooperate in

setting dates for Husband’s weekly visitation. He further testified that Wife only scheduled five

visits. Wife did not show up for two of the five scheduled visits, and did not pay for those visits.

When Wife did show up, she brought the maternal grandfather, who was aggressive and

disruptive. Eventually the maternal grandfather was asked to leave and agreed only under threat

of police involvement. Mr. Derry testified that when Wife brought the child to scheduled visits,

she did not help him transition. Instead she would cry and tell M. that “she was sorry that she

had to put him through this” and that “this [was] dad’s idea of the right thing to do.”

       {¶22} Mr. Derry personally observed one of the three visits that occurred at Common

Ground. He testified that Wife brought M. to the visit very tired and agitated, as if he had been

kept awake for a long time. He had a “very bad diaper rash, extremely raw and red.” Wife did

not try to encourage him. She brought a diaper bag that contained “only a few diapers and some

clothes and some toys, but there was no blanket, no pacifier, no diaper ointment, no wipes or

anything like that.” There were no “comfort items” in the bag. In addition, a recording device

was found in the lining of the diaper bag. Also, “the child had a recording device stuck in his

shoe with his shoe tied on to his foot.” Mr. Derry testified that the device was “also agitating the

child’s condition” and contributed to the “child crying and being inconsolable” for the entire visit

with Husband. When Wife was confronted about the devices, she shrugged and turned away. At

the hearing, Wife denied placing a recording device in M.’s shoe. Mr. Derry testified that, based

on what he observed, Husband’s demeanor with M. was gentle, attentive, and responsive.

       {¶23} Mr. Derry testified that, without “a cooperative parent * * * helping the child to

transition to dad” there were “very few opportunities to observe dad with the child,” such that it
                                                    8


was “difficult to make recommendations” regarding what would be best for the child. Mr. Derry

testified that “[i]t [did not] appear based on what [he had] seen that [Wife valued] * * * her son’s

relationship with his dad.” According to Mr. Derry, “[s]he’s doing everything she can * * * to

try to thwart that relationship and to try to interfere.”

        {¶24} The parties did not successfully schedule any visitation sessions at Common

Ground after June 2014. Husband did not make any effort to contact Common Ground to

schedule his visitation. Common Ground did not hear from Husband until someone from the

center called Husband in September 2014. Husband claimed that he wanted to have visitation

but was waiting for someone to contact him regarding arrangements. Common Ground also

contacted Wife. Mr. Derry testified that “when we called [Wife], she said that * * * the [child’s]

doctor felt that the visits were too traumatic for the child and so [Wife] wasn’t going to bring the

child back for that reason.”

        {¶25} The child’s doctor, Dr. Levatin, testified at the hearing. Dr. Levatin practiced

pediatrics and homeopathic medicine. She testified that “[h]omeopathy works with the energy

[of the] body to help imbalances * * * self correct.” Dr. Levatin did not administer vaccinations

as part of her practice.       Dr. Levatin recommended homeopathic remedies for M., including

Stramonium in June 2014 to “help with fears, anxiety as it manifests in a [two]-year-old child,

and sleep and abnormal behavior such as biting and hitting.” Dr. Levatin opined that such

“abnormal” behaviors resulted from visits with Husband without Wife present. She admitted

that her only knowledge of the child’s relationship with Husband was based on what Wife told

her. She did not meet Husband or observe him with the child. Dr. Levatin’s only interaction

with Husband was to speak with him on the phone when he called to ask for copies of M.’s
                                                  9


medical records. Husband testified that Wife would not share M.’s medical information with

him.

         {¶26} The Court held a conference in chambers on October 20, 2014 during which

Husband’s visitation was discussed. Counsel for Husband and Wife were present in chambers

along with Mr. Brightbill, who, on Husband’s motion, had been appointed GAL for the child in

January 2014. Wife and Husband were not in chambers. Mr. Brightbill testified that it was

agreed between counsel and in the presence of the court that Husband would have visitation on

Saturdays from 10:00 to 4:00. It was also agreed that Mr. Brightbill would be present for the

first initial transition that week on Saturday, October 25.

         {¶27} Mr. Brightbill arrived at Wife’s residence to facilitate the transition on October

25. Husband arrived in a separate vehicle with Mr. Roth, the paternal grandfather. Husband

remained in the parking lot and did not approach Wife’s residence. Mr. Roth and Mr. Brightbill

approached the residence to receive the child.

         {¶28} Wife refused to allow the visitation to proceed without a written order from the

court. She stepped outside to have a conversation with Mr. Roth, but would not produce the

child.

         {¶29} Wife’s sister, Ms. Whitt, was present and filmed the encounter. It does not appear

that the recording was entered into evidence in this matter. Ms. Phipps was also present at

Wife’s residence.

         {¶30} Ms. Whitt called the Twinsburg police. Officer Vecchio responded. He testified

that “[Wife] said that she did not want the child to go so we were just there to keep the peace and

wait for [Husband] to leave, which he did.” It appears that the civil protection order against
                                                 10


Husband had been dismissed prior to the events of October 25.          The Twinsburg police

department had on record that Husband had been granted companionship time with the child.

       {¶31} Two days later, on October 27, 2014, Mr. Brightbill filed a motion to grant

Husband temporary custody of M. on the basis that Wife had demonstrated her reluctance and

lack of cooperation to allow Husband to have parenting time with the parties’ child. The GAL

submitted an affidavit regarding the events of October 25. The trial court granted the motion

within ten minutes after it was filed. Wife could not be served with the October 27 order right

away because she took leave from work beginning that day and was not staying at her residence.

Husband was concerned that Wife had fled the country with M. because she and the maternal

grandfather have Polish citizenship. Wife eventually returned to her residence and was made

aware of the order.

       {¶32} Wife moved the court to reconsider its temporary custody order and to remove the

GAL. The court denied Wife’s motions.

       {¶33} Mr. Brightbill testified at the hearing that an award of custody to Husband was in

the child’s best interest. He testified that Wife deprived Husband of parenting time with the

child without justifiable cause. He testified that he was aware of the March 20 incident that

resulted in Husband’s arrest for domestic violence. He further testified that Husband was

capable of taking care of the child.

       {¶34} The hearing took place over two days. Between the first and second days of the

hearing, the trial court issued an order granting Husband additional visitation and making both

parents residential and legal custodians of M.
                                                11


       {¶35} Following the second day of the hearing, the court entered a final decree granting

the parties a divorce and, among other things, designating Husband the residential and custodial

parent of M. The court awarded Wife visitation and ordered her to pay child support.

       {¶36} Wife appealed from the final decree and moved to stay. She filed a supplemental

motion to stay, stating that M. suffered unexplained injuries or rashes during visitation with

Husband. The trial court granted Wife’s motion to stay. M. was returned to Wife and Husband

has visitation on weekends.

       {¶37} We now turn to the issues raised on appeal. Wife brings three assignments of

error for our review. We consider the assignments of error out of order to facilitate analysis.

                                                 II

                               Assignment of Error Number Three

       THE TRIAL COURT ABUSED ITS DISCRETION IN REMOVING LEGAL
       AND PHYSICAL CUSTODY FROM THE [WIFE] AND PLACING LEGAL
       AND PHYSICAL CUSTODY WITH THE [HUSBAND].

       {¶38} In her third assignment of error, Wife contends that the trial court abused its

discretion when it removed her as physical and legal custodian of M. and granted custody to

Husband. We disagree.

       {¶39} Trial courts enjoy broad discretion in their allocation of parental rights and

responsibilities. Graves v. Graves, 9th Dist. Medina No. 3242-M, 2002-Ohio-3740, ¶ 31, citing

Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “[A] trial court’s determination in custody matters

‘should be accorded the utmost respect’ because ‘[t]he knowledge a trial court gains through

observing the witnesses and the parties in a custody proceeding cannot be conveyed to a

reviewing court by a printed record.’” Baxter v. Baxter, 9th Dist. Lorain No. 10CA009927,

2011-Ohio-4034, ¶ 6, quoting Miller at 74. Accordingly, reversal of a trial court’s custody
                                                12


award is not warranted absent an abuse of discretion. Id. An abuse of discretion means more

than an error of law or judgment; it implies that the trial court's attitude was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When an

award of custody is supported by a substantial amount of credible and competent evidence, the

trial court has not abused its discretion. See Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997).

When applying the abuse of discretion standard, a reviewing court is not free to merely substitute

its judgment for that of the trial court. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67 (1990). Therefore,

an appellate court must be guided by the presumption that the findings of the trial court are

correct. In re Jane Doe 1, 57 Ohio St.3d 135, 138 (1991).

       {¶40} When determining the best interest of the child, R.C. 3109.04(F)(1) requires the

trial court to consider “all relevant factors” that include, but are not limited to, enumerated

factors contained in the statute. The enumerated statutory factors are:

          (a) The wishes of the child’s parents regarding the child’s care;

          (b) If the court has interviewed the child * * * the wishes and concerns of the
              child, as expressed to the court;

          (c) The child’s interaction and interrelationship with the child’s parents,
              siblings, and any other person who may significantly affect the child’s best
              interest;

          (d) The child’s adjustment to the child’s home, school, and community;

          (e) The mental and physical health of all persons involved in the situation;

          (f)   The parent more likely to honor and facilitate court-approved parenting
                time rights or visitation and companionship rights;

          (g) Whether either parent has failed to make all child support payments * * *
              under which that parent is an obligor;

          (h) * * * [W]hether either parent or any member of the household of either
              parent previously has been convicted of or pleaded guilty to any offense
              involving a victim who at the time of the commission of the offense was a
                                                13


               member of the family or household that is the subject of the current
               proceeding and caused physical harm to the victim in the commission of
               the offense * * *;

         (i)   Whether the residential parent * * * has continuously and willfully denied
               the other parent’s right to parenting time in accordance with an order of
               the court;

         (j)   Whether either parent has established a residence, or is planning to
               establish a residence, outside this state.

R.C. 3109.04(F)(1).

       {¶41} The trial court stated that it “considered [the R.C. 3109.04(F)(1)] factors”

in making Husband the residential and legal custodian of M. The trial court found the

following:


       (a)     Both parents wish to be the residential parent and legal custodian of [M.].

       (b)     [M.] has a good relationship with both sides of his extended family. Husband has
               custody of a daughter [A.], age 11, from a prior relationship. [M.] and [A.] have a
               close relationship.

       (c)     [M.] is not yet in school or preschool. Husband believes [M.] should be in the
               childcare program that he used for [A.] Wife uses family for daycare. Husband
               testified as to his concerns about the maternal grandfather’s temper and excessive
               drinking.

       (d)     Both parties are in good mental and physical health.

       (e)     Based on Wife’s refusal to allow Husband to have companionship time with [M.]
               during the parties’ separation and her non-compliance with the temporary orders,
               Husband is far more likely to honor and facilitate court-approved parenting time
               rights or visitation and companionship.

       (f)     Husband has made all child support payments even when Wife was not
               complying with the [c]ourt’s temporary orders.

       (g)     Wife was the residential parent pursuant to the temporary orders. The [c]ourt
               heard testimony from the [GAL], and Chris Derry of Common Ground [], that
               Wife continuously and willfully denied Husband his court-ordered parenting time.
                                                14


       (h)     Wife attempted to defend her actions by pointing to several incidents where [M.]
               suffered minor injuries. The parties’ testimony differed drastically concerning
               these incidents. However, even Wife’s testimony was that [M.’s] injuries were
               minor and resulted from the type of accidents that occur to most, if not all, young
               active children.

       (i)     [Wife’s] use of these incidents to justify her refusal to comply with court orders is
               of concern to the [c]ourt.

       (j)     The [GAL] recommended, based on his investigation, that Husband be [M.’s]
               residential parent and legal custodian.

       (k)     Wife called [M.’s] pediatrician, Dr. Levitan [sic]. On direct examination Dr.
               [Levatin] testified that [M.’s] heath is “very good”; however, she also testified
               that she treated him for infections, teething discomfort and anxiety. Dr. [Levatin]
               practices homeopathic medicine and would only prescribe over-the-counter
               homeopathic medications. Dr. [Levatin] also testified as to Wife’s report of
               [M.’s] anxiety and Wife reports that [M.’s] contact with Husband was the cause
               of the anxiety.

       (l)     On cross-examination, Dr. [Levatin] acknowledged that her opinion as to the
               cause of [M.’s] anxiety was solely based on Wife’s report.

       (m)     Dr. Levatin testified further that she does not provide patients vaccines or
               inoculations.

       (n)     According to the report from [Common Ground] and the testimony of Chris
               Derry, Wife has been very resistant to Husband having parenting time with [M.].

       (o)     Mr. Derry also testified that Wife had placed a recording device in [M.’s] shoe
               and diaper bag.

       (p)     Mr. Derry further reported that Wife would not provide Husband with any
               information about the medication prescribed for [M.] by Dr. [Levatin].

       {¶42} Wife contends that the trial court abused its discretion because the court never

mentioned or overlooked certain evidence relating to the statutory best interest of the child

factors. Wife appears to be arguing that trial court was required to expressly address in the final

decree evidence of: (1) the desire of both parents to have custody of M.; (2) M.’s relationship

with Wife and other family members; (3) the child’s health; (4) Husband’s mental and physical

health; (5) evidence that Husband violated the civil protection order when he arrived at Wife’s
                                                15


house for visitation on October 25, 2014; (6) evidence that M. was abused or neglected; (7) the

events of March 20 that resulted in Husband being arrested for domestic violence and entering a

guilty plea to a lesser charge of disorderly conduct; and (8) Husband’s purported history of being

abusive to women in relation to his guilty plea to criminal trespass.

       {¶43} To the extent that the domestic relations court did not explicitly make findings of

fact on some of these factors, it was not required to.          We have held that “while [R.C.

3109.04(F)(1)] does mandate consideration of each factor by the trial court, the court need not

explicitly reiterate its findings with regard to those factors absent a Civ.R. 52 request for

findings of fact and conclusions of law.” Matis v. Matis¸ 9th Dist. Medina No. 04CA0025-M,

2005-Ohio-72, ¶ 6. Absent a Civ.R. 52 request, it is enough for the trial court’s order to state

that the court considered the factors enumerated in the statute. Id.

       {¶44} Here, the domestic relations court stated that it considered the statutory factors.

The court took extensive evidence related to the enumerated factors and other relevant

considerations over two days. The court heard the testimony of 12 witnesses, including the

parties, the GAL, and Mr. Derry. Testimony was given on each of the issues that Wife claims in

her assignment of error that the court overlooked or did not address. Wife did not make a Civ.R.

52 request to the court for findings of fact and conclusions of law. Thus, contrary to Wife’s

claim, the court was not obligated to explicitly address all of the statutory factors and all of the

evidence relevant to the custody award.

       {¶45} We are mindful that the record in this case contains evidence that falls squarely

under R.C. 3109.04(F)(1)(h), one of the factors to be considered by the court in determining the

best interest of the child. This factor requires the court to evaluate, among other things, “whether

either parent * * * has been convicted of or pleaded guilty to any offense involving a victim who
                                                  16


at the time of the commission of the offense was a member of the family or household that is the

subject of the current proceeding and caused physical harm to the victim in the commission of

the offense * * *.” R.C. 3109.04(F)(1)(h). Specifically, Wife testified that Husband pushed

Wife during the March 20, 2014 visitation with the child, which caused Wife to trip and injure

her arm.    There is photographic evidence of bruising from the alleged injury.                Officer

Hendershott also testified and prepared a police report regarding the incident, which is part of the

record. Moreover, Husband pled guilty to disorderly conduct after originally being charged with

domestic violence in consequence of the incident. Wife received a civil protection order as a

result of the confrontation. Husband and Mr. Milne testified at the hearing that Husband did not

touch Wife or push her.

       {¶46} Husband was not convicted of domestic violence under R.C. 2919.25, which

would have obligated the trial court to “make [] specific written findings of fact to support its

determination” in awarding custody to the offender. R.C. 3109.04(C). By contrast, there was no

requirement that the trial court make explicit findings pursuant to R.C. 3109.04(F)(1)(h) in the

absence of a conviction under R.C. 2919.25. See Matis, 2005-Ohio-72, at ¶ 6. Nonetheless,

issues related to domestic violence and abuse are so fundamental and chronic in child custody

matters that the better practice would be for the trial court to expressly set forth its findings under

R.C. 3109.04(F)(1)(h) when there is evidence relevant to that provision. However, despite our

preference for explicit language with respect to evidence under R.C. 3109.04(F)(1)(h), we find

that explicit language was not required and that the trial court did not abuse its discretion in not

specifically discussing this factor. See Matis at ¶ 6.

       {¶47} In this case there are a multitude of contested issues that turned on the credibility

of witnesses and evidence, including whether: (1) domestic violence occurred; (2) either parent
                                                 17


was neglectful; (3) Wife interfered with Husband’s relationship with the child; (4) Wife properly

cared for the health of the child; and (5) Husband suffered from mental or emotional health

problems. In awarding custody of M. to Husband, the trial court resolved the greater weight of

credibility issues in favor of Husband. We are obligated to treat the trial court’s determinations

of credibility with the utmost deference. See Baxter, 2011-Ohio-4034, at ¶ 6. Where, as here,

we have no basis to conclude that the trial court abused its discretion in making credibility

determinations, we will not supplant the trial court’s judgment with our own.

       {¶48} In addition, the trial court has discretion to assign weight to the relevant best

interest of the child factors depending upon the facts before the court. Brammer v. Brammer, 3d

Dist. Marion No. 9-12-57, 2013-Ohio-2843, ¶ 41. In awarding custody to Husband, the trial

court here placed considerable weight on evidence of Wife’s repeated disobedience of visitation

orders and refusal to facilitate a relationship between Husband and the child.       Approximately

half of the findings discussed in the final decree relate to Wife’s conduct in this regard. Having

carefully reviewed the record in its entirety, we are satisfied that a substantial amount of credible

and competent evidence supports the trial court’s findings. Accordingly, we find that the trial

court did not abuse its discretion in awarding custody of M. to Husband.

       {¶49} We have found that the trial court did not abuse its discretion in awarding custody

of M. to Husband. On this basis, Wife’s third assignment of error is overruled.

                                Assignment of Error Number One

       R.C. 3109.04(F)(1)(F) & (I) IS UNCONSTITUTIONAL BECAUSE IT
       VIOLATES THE SUBSTANTIVE DUE PROCESS CLAUSE OF THE
       FOURTEENTH AMENDMENT AND THE TRIAL COURT ERRED IN
       RELYING ON THAT SECTION.
                                                  18


          {¶50} In her first assignment of error, Wife argues that R.C. 3109.04(F)(1)(f) and (i)

violate the substantive due process guarantees of the United States and Ohio constitutions. We

disagree.

          {¶51} At the outset we must address Husband’s claim that this Court may not address

Wife’s substantive due process claim because she failed to serve the attorney general in

accordance with R.C. 2721.12.         In relevant part, R.C. 2721.12(A) provides that “when

declaratory relief is sought * * * if any statute * * * is alleged to be unconstitutional, the attorney

general also shall be served with a copy of the complaint in the action or proceeding and shall be

heard.”

          {¶52} Contrary to Husband’s claim, Wife was not required to serve the attorney general

under R.C. 2721.12. The Supreme Court of Ohio has held that the notice requirement of the

statute applies only to declaratory judgment actions filed pursuant to Chapter 2721. Cleveland

Bar Assn. v. Picklo, 96 Ohio St.3d 195, 2002-Ohio-3995, ¶ 6-7. The case at bar was not filed as

a declaratory judgment action under Chapter 2721. Thus, there is no procedural bar to our

consideration of Wife’s constitutional argument.

          {¶53} Due process protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 66

(2000).     Accordingly, strict scrutiny must be applied to address Wife’s claim that R.C.

3109.04(F)(1)(f) and (i) infringe upon her right to raise M. See Harrold v. Collier, 107 Ohio

St.3d 44, 2005-Ohio-5334, ¶ 39; see also Cottrell v. Cottrell, 12th Dist. Warren No. CA2013-07-

065, 2014-Ohio-646, ¶ 20. Applying strict scrutiny, the issue we must decide is whether R.C.

3109.04(F)(1)(f) and (i) are narrowly tailored to promote a compelling government interest. See

Harrold at ¶ 39, citing Chavez v. Martinez, 538 U.S. 760, 775 (2003); see also Cottrell at ¶ 20.
                                                 19


       {¶54} We find that R.C. 3109.04(F)(1)(f) and (i) promote a compelling government

interest. These sections set forth two of the considerations to be weighed in conjunction with the

remaining factors of R.C. 3109.04(F)(1) to decide whether an allocation of parental rights is

within the best interest of the child. Respectively, these sections generally require the trial court

to determine whether (1) one parent is more likely to honor court orders regarding visitation, and

(2) whether the residential parent has demonstrated a history of violating court-ordered custodial

arrangements. It is well-established that promoting the best interests of children is a compelling

government interest. Cottrell at ¶ 20.

       {¶55} We also find that R.C. 3109.04(F)(1)(f) and (i) are narrowly tailored to serve a

determination of the best interest of the child. Wife argues that these sections are not narrowly

tailored because they do not account for instances when there is evidence that an abused parent

has disobeyed court orders to protect herself or the child from abuse. However, a trial court may

not decide the best interest of the child on the basis of R.C. 3109.04(F)(1)(f) and (i) alone, but

rather is obligated to weigh those provisions in conjunction with the other factors in the statute.

These other factors include R.C. 3109.04(F)(1)(h), which requires the court to determine the best

interest of the child having considered evidence related to physical harm caused to the other

parent and abuse or neglect of the child.         See R.C. 3109.04(F)(1)(h).       Moreover, R.C.

3109.04(F)(1) mandates consideration of “all relevant factors” to the issue of custody, which

would include a parent’s reasons for disobeying court orders, if reasons are given. We observe

that Wife has not specifically argued in this matter that she disobeyed court orders to protect

herself or M. from threatened harm.

       {¶56} Apparently relying on the dissent in Doe v. Delaware, 450 U.S. 382, 385 (1981),

Wife also argues that “[s]ubstantive due process forbids termination of parental rights in the
                                                20


absence of a demonstration of a compelling state interest, in the form of specific findings of

existing or threatened injury to the child.” (Wife’s emphasis deleted.) Wife’s argument is

misplaced considering that the case at bar does not involve a termination of parental rights.

       {¶57} Accordingly, we find that R.C. 3109.04(F)(1)(f) and (i), considered in conjunction

with R.C. 3109.04(F)(1)(h) and the remaining statutory factors, are narrowly tailored to promote

the compelling government interest of allocating parental rights in the best interest of the child

while observing parents’ fundamental right to the care and management of their children. As

such, Wife’s first assignment of error is not well-taken.

       {¶58} We have determined that R.C. 3109.04(F)(1)(f) and (i) do not violate substantive

due process. Wife’s first assignment of error is overruled on this basis.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED IN FAILING TO REMOVE THE GUARDIAN
       AD LITEM BECAUSE HE: (A) FAILED TO PERFORM HIS DUTIES; (B)
       INTERJECTED HIMSELF INTO A VIOLATING OF A CIVIL PROTECTION
       ORDER, THUS BECOMING A WITNESS AND (C) COMPLETELY
       DESTROYED ALL INDEPENDENCE HE MAY HAD [SIC] AND
       EXPRESSED A PERSONAL BIAS AGAINST THE [WIFE].

       {¶59} In her second assignment of error, Wife argues that the trial court erroneously

denied her motion to remove the GAL for failure to perform his duties in accordance with Sup.R.

48. We disagree.

       {¶60} We review a decision of the trial court declining to remove a GAL for abuse of

discretion. Loewen v. Newsome, 9th Dist. Summit No. 26960, 2014-Ohio-5786, ¶ 19. The trial

court acts within its discretion unless the court’s ruling was unreasonable, arbitrary, or

unconscionable. Blakemore, 5 Ohio St.3d at 219.

       {¶61} Sup.R. 48 governs GAL standards in Ohio. In the present case, Wife first argues

that the GAL failed to perform his duties as required by Sup.R. 48(D)(13)(g). The rule states:
                                                 21


       A guardian ad litem shall make reasonable efforts to become informed about the
       facts of the case and to contact all parties. In order to provide the court with
       relevant information and an informed recommendation as to the child’s best
       interest, a guardian ad litem shall, at a minimum, do the following, unless
       impracticable or inadvisable because of the age of the child or the specific
       circumstances of a particular case:

       ***

       (g) Interview school personnel, medical and mental health providers, child
       protective services workers and relevant court personnel and obtain copies of
       relevant records[.]

Sup.R. 48(D)(13).

       {¶62} Specifically, Wife argues that reversal is warranted because the GAL did not

interview Dr. Levatin.     However, there is no evidence that the GAL failed to consider

information from the pediatrician. Dr. Levatin wrote the GAL a letter and the GAL reviewed Dr.

Levatin’s website. The GAL obtained the doctor’s patient records for M. and discussed them in

his testimony at the hearing and in the GAL’s report to the court. In addition, Dr. Levatin

testified at the hearing and was subject to cross examination. The court thus had the opportunity

to consider M.’s medical history and Dr. Levatin’s opinion in light of all of the evidence. Under

the circumstances, Wife cannot demonstrate any prejudice arising from the GAL’s failure to

interview Dr. Levatin. Absent prejudice to Wife, we cannot say that the trial court abused its

discretion when it declined to remove the GAL for failure to adhere strictly to Sup.R.

48(D)(13)(g). See In re K.G., 9th Dist. Wayne No. 10CA0016, 2010-Ohio-4300, ¶ 20.

       {¶63} Wife also argues that the trial court abused its discretion when it did not remove

the GAL for a violation of Sup.R. 48(D)(7). Sup.R. 48(D)(7) states:

       When a court appoints an attorney to serve as both the guardian ad litem and
       attorney for a child, the attorney shall advocate for the child’s best interest and the
       child’s wishes in accord with the Rules of Professional Conduct. Attorneys who
       are to serve as both guardian ad litem and attorney should be aware of Rule 3.7 of
       the Rules of Professional Conduct and act accordingly.
                                                 22



Prof.Cond.R. 3.7(a) provides that, with certain exceptions, “[a] lawyer shall not act as an

advocate at a trial in which the lawyer is likely to be a necessary witness.”

       {¶64} Sup.R. 48(D)(7) does not appear to be applicable in this matter. By its express

terms, Sup.R. 48(D)(7) applies to attorneys who are appointed to serve both as the GAL and

attorney for the child. Under Sup.R. 48(C)(1), “Each court appointing a guardian ad litem * * *

shall enter an Order of Appointment which shall include: (a) [a] statement regarding whether a

person is being appointed as a guardian ad litem only or as a guardian ad litem and attorney for

the child.” Here, the order of appointment states only that Mr. Brightbill was appointed GAL,

and does not specify a dual appointment as GAL and attorney. Thus, Mr. Brightbill’s actions

would not be subject to scrutiny under Sup.R. 48(D)(7).

       {¶65} Even if Sup.R. 48(D)(7) applied, Wife’s argument lacks merit. She claims that

the “GAL injected himself into what would become hotly contested issues at trial, the events that

occurred on [October 25, 2014], temporary custody of the minor child, and whether [Husband]

violated a [c]ivil [p]rotection [o]rder.” Contrary to Wife’s contention, the GAL did not “inject

himself” into the situation for “no reason.” Rather, he attended the scheduled transition of the

child consistent with the agreement of the parties. As discussed, counsel for Wife and counsel

for Husband attended a conference in chambers and in the presence of the court on October 20.

Counsel agreed, as representatives of their respective clients, that Mr. Brightbill would attend

and facilitate the transition of the child on October 25. We are not persuaded that the GAL’s

compliance with the agreement made by Wife’s counsel on Wife’s behalf is a valid basis to

terminate the GAL. Moreover, to the extent that Wife claims that the GAL is a fact witness to

whether Husband violated the civil protection order on October 25, she is mistaken. That order
                                               23


had been dismissed prior to the events in question. Accordingly, the trial court did not abuse its

discretion in refusing to dismiss the GAL pursuant to Sup.R. 48(D)(7).

       {¶66} Wife also argues that the GAL violated Sup.R. 48(D)(2), (3), and (15) “destroying

all independence he may had [sic] and explicitly expressed a personal bias against [Wife].”

Under these provisions, the GAL must: (1) remain independent, objective, and fair (Sup.R.

48(D)(2)); (2) act with respect and courtesy to the parties (Sup.R. 48(D)(3)); and (3) shall not

make disclosures about the case except as necessary (Sup.R. 48(D)(15)).

       {¶67} In essence, Wife complains that the GAL is biased because she disagrees with the

court’s award of custody to Husband.        Her argument lacks merit.      We have found that

disagreement with the court’s ultimate determination of custody does not demonstrate bias,

prejudice, or improper action on the part of the GAL. See King v. King, 9th Dist. Medina No.

12CA0060-M, 2013-Ohio-3070, ¶ 9.

       {¶68} Under these circumstances, we cannot conclude that the trial court abused its

discretion in denying Wife’s motion to remove the GAL.           Wife’s assignment of error is

overruled.

                                               III

       {¶69} Wife’s assignments of error are overruled. The judgment of the Summit County

Domestic Relations Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                24


       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.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

CEDRIC B. COLVIN, Attorney at Law, for Appellant.

BRUCE L. MIELZINER and KEVIN R. MCMILLAN, Attorneys at Law, for Appellee.
