holding under Ohio law that “significant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication,” may constitute justifiable cause for noncustodial parent’s failure to communicate with child
How later courts described this case
- holding under Ohio law that “significant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication,” may constitute justifiable cause for noncustodial parent’s failure to communicate with child
- stating that "[a]n appellate court shall not reverse a trial court's determination concerning parental rights unless the determination is not supported by sufficient credible evidence to meet the clear and convincing standard of proof"
- emphasizing that “significant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication, is required to establish justifiable cause for the non-custodial parent’s failure to communicate with the child.”
- noting that custodial parent had refused to give telephone number or address to parent seeking to contact
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
concurring in part and dissenting in part. I wholeheartedly approve of the standards adopted in today’s decision and the excellent analysis in support thereof. I cannot approve, however, of the majority’s application of those standards in its disposition of case No. 84-1345.
The majority itself correctly acknowledges that “the better-reasoned approach would be to leave to the probate court as finder of fact the question of whether or not justifiable cause exists.” It further acknowledges that “[t]he probate court is in the best position to observe the demeanor of the parties, to assess their credibility, and to determine the accuracy of their testimony.” Unfortunately, the majority then proceeds to affirm the court of appeals’ judgment overturning the probate court’s determination that no justifiable cause existed. This result is unwarranted.
The probate court repeatedly and specifically expressed its distrust of respondent’s credibility. Therefore, the truth of her testimony regarding her allegedly diligent efforts to locate her children, and the obstacles thrown in her way, is subject to grave doubt. A review of the trial judge’s closing comments clearly reveals that he was firmly convinced from the evidence that with a little sincere effort, respondent could easily have located and contacted her children. By imposing our view of the evidence over that expressed by the trial court, we violate the very standard of review enunciated in today’s decision.
In Cross v. Ledford (1954), 161 Ohio St. 469 , 477-478 [ 53 O.O. 361 ], this court commented that “[t]he degree of proof required is determined by the impression which the testimony of the witnesses makes upon the trier of facts, and the character of the testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to be informed, the disposition to tell the truth or otherwise, and the probability or improbability of the statements made, are all tests of testimonial value. Where the evidence is in conflict, the trier of facts may determine what should be accepted as the truth and what should be rejected as false. * * *” It is clear from the trial judge’s comments that he considered respondent’s testimony to be improbable, and his judgment should not be disturbed.
Holmes, J., concurs in the foregoing opinion.