OVI Conviction May Affect Child Custody

Past blogs have identified areas of concern resulting from an OVI conviction.  As discussed, an OVI conviction not only has severe penalties, but can materially affect employment, insurance, and professional licenses.

A recent court of appeals case points to another possible consequence of multiple OVI convictions - child custody.  In the case of Oberlin v. Oberlin, 2011 Ohio 6245, the Ninth Appellant District (Summit County) affirmed a lower court’s decision to reallocate parental rights and custody resulting from multiple OVI convictions.

Before rendering its decision, the lower court referred the child custody issue to a Family Court Services Evaluator who prepared a report with an initial custody determination and ultimately recommended that Father be awarded custody. The trial court noted in the divorce decree that evaluator felt the case was "a close call" and recommended the wife seek custody in the event there are any further alcohol-related issued.  Subsequently, the husband was convicted of a second OVI and the wife filed a motion in court for a reallocation of parental rights asking that the wife be made the custodial parent.  The lower court granted her motion and conveyed custody of the child to the mother.  The husband appealed.

The appellate court’s opinion began by citing O.R.C. 3109.04(E)(1)(a) which states, “ [A] court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child's residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child."

The court continued, “As such, ‘before a modification can be made pursuant to R.C. 3109.04(E)(1)(a), the trial court must make a threshold determination that a change in circumstances has occurred.’ Buttolph v. Buttolph, 9th Dist. No. 09CA0003, 2009 Ohio 6909, at ¶11. Moreover, the requisite change of circumstances ‘must be a change of substance, not a slight or inconsequential change.’ Davis, 77 Ohio St.3d at 418. The statute is intentionally designed to require a significant change in order ‘to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the child a 'better' environment.’ Id., quoting Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416.

The father argued that an OVI conviction, by itself, cannot constitute a change in circumstances.  The Ninth Appellate District disagreed.

The court pointed to the testimony of the Family Court Services Evaluator who testified that her report included the recommendation that the wife should seek custody of the child if there were any further alcohol-related offenses.  The appellate court agreed that the second OVI conviction constituted a change of circumstances and affirmed the lower court’s decision to reallocate custody to the wife.

I would be remiss if I failed to report that the court did review other factors such as the husband’s working hours in determining custody.  But the OVI conviction constituted nearly 75% of the court’s opinion.  So, one can only conclude that the conviction was a major issue in the court’s decision.

Also a major factor in the court’s decision was the Family Court Services Evaluator’s report which warned the husband of the consequences of any additional alcohol-related incidents.  Would the court’s decision been different if the warning was not present in the report?  This question is open to speculation.

But, the Ninth Appellate District Court has made it clear that OVI convictions and alcohol-related issues will be a determining factor in custody issues.

This entry was posted on Thursday, December 8th, 2011 at 9:22 am and is filed under Civil Liability. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.