Myers v. Myers

DeGenaro, Judge,

dissenting.

{¶ 89} Because the trial court based its decision to terminate the shared-parenting agreement on inadmissible evidence, I must respectfully dissent. In its judgment entry, the trial court acknowledges that it took into account Mother’s sexual history when making its determination. Pursuant to the “direct adverse impact” doctrine, a parent’s sexual activity may not be taken into account unless it can be proven that the behavior is actually having a present negative effect on the child. The record in this case does not support such a finding, since no testimony was adduced regarding the effects either parent’s behavior was having on the minor child. Accordingly, I would reverse and remand this case for further proceedings in which the “direct adverse impact” test should be applied.

{¶ 90} In

Inscoe v. Inscoe

(1997), 121 Ohio App.3d 396 , 700 N.E.2d 70 , the court followed established precedent and noted that unless a parent’s sexual activity directly and adversely impacts the child, the parent’s sexual activity ordinarily should not be a basis for modifying a prior allocation of parental rights and responsibilities:

{¶ 91} “ ‘ “[T]he direct adverse impact approach to custody * * * is the soundest, provided certain limitations on its application are adopted. Courts

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should consider only present impact. Before depriving a sexually active parent of custody, courts should demand preponderance .proof that the parent’s conduct is having or is probably having an effect on the child and that the effect is actually harmful. Without such proof, the fact of nonmarital sexual conduct should not justify a custody denial or change. Moreover, on the issue of harmfulness, the primary focus should be on the child’s present physical and psychological welfare and developmental potential. Unless accompanied by clearly adverse collateral consequences, moral impact should be

ignored.”

’ ” (Emphasis deleted.)

Inscoe

at 413-414 , 700 N.E.2d at 81 , quoting

Whaley v. Whaley

(1978), 61 Ohio App.2d 111, 119 , 15 O.O.3d 136 , 399 N.E.2d 1270 , quoting Lauerman, Nonmarital Sexual Conduct and Child Custody (1977), 46 U.Cin.L.Rev. 647, 681. See, also,

Beaver v. Beaver

(2001), 143 Ohio App.3d 1 , 757 N.E.2d 41 .

{¶ 92} A more appropriate standard for considering the alleged moral impropriety of a parent in a custody dispute has been stated as follows:

{¶ 93} “Concern for a child’s well-being or best interests does not * * * provide the court carte blanche to judge the rights and lifestyles of parents by nonstatutory codes of moral or social values. Although a court is not obliged to wear blinders as to a parent’s lifestyle and/or morals, including sexual conduct, any state interest in competing lifestyles and accompanying moral values which affect child custody would most equitably be served if limited to a determination of the direct or probable effect of parental conduct on the physical, mental, emotional, and social development of the child * *

Rowe v. Franklin

(1995), 105 Ohio App.3d 176, 179 , 663 N.E.2d 955 .

{¶ 94} Here, there was a great deal of proof that the Mother was not leading the most conventional of lives. Admittedly, Mother carried on her atypical sexual practices under the same roof as her child. However, the record indicates that any sexual practices which could be considered potentially harmful to the child were kept private. Moreover, the record is devoid of any proof that the minor child was affected in any way by Mother’s behavior. To the contrary, there was evidence that the child was doing well in the custody of Mother.

{¶ 95} Because there is no way to determine how much weight the trial court actually placed on Mother’s sexual behavior when making its determination to terminate the shared-parenting agreement, I would remand this case to the trial court so that it could make its determination by applying the direct-adverse-impact test.