The Supreme Court of Ohio today ordered that a 5-year-old girl be returned to her custodial parent. The Supreme Court ruled that the Sandusky County Juvenile Court did not properly follow the law when it granted custody to the child’s grandfather last year.

The 5-2 per curiam (not authored by a specific justice) decision reverses the judgment of the Sixth District Court of Appeals and grants the mother’s writ of prohibition, which asserted that the juvenile court did not have jurisdiction in the case because she and her daughter had been living in Arizona since 2010.

In 2009, the Sandusky juvenile court gave sole custody of 1-year-old J.B. to her mother, V.K.B.  The next year, V.K.B. moved from Ohio to Arizona with her daughter, and she filed a relocation notice with the Ohio court.

In 2012, V.K.B. and her daughter returned temporarily to Ohio. When a job interview in Arizona came up, V.K.B. left her daughter with her mother to go back to Arizona for the interview. While she was away, J.B.’s paternal grandfather filed an ex parte motion (one in which the other side, in this case the mother, is not notified) for custody, and the court approved the request.

V.K.B. asked the Sixth District to grant a writ of prohibition to stop the juvenile court from exercising its jurisdiction in this case. Because her home state is Arizona, the child’s mother claimed that the Arizona courts have jurisdiction in any custody matter involving her daughter. The Sandusky magistrate, judge, and juvenile court lacked the legal authority to transfer custody to J.B.’s grandfather, she argued.

The appellate court ruled that the juvenile court had proper jurisdiction in the case and that V.K.B. had not stated a claim. In addition, the court said the girl’s mother had an adequate remedy to pursue her case through an appeal of the juvenile court’s decision rather than seeking a writ.

V.K.B. appealed the appellate court’s dismissal of her writ of prohibition to the Supreme Court.

To receive the writ, the court in today’s opinion stated that the mother must show that the juvenile court was about to or has exercised judicial power, the exercise of power was unauthorized by law, and denying the writ would cause injury that has no other adequate remedy in law.

This case involves the Uniform Child Custody Jurisdiction and Enforcement Act, which addresses recognition and enforcement of child custody orders across states. Noting that the Ohio juvenile court exercised temporary emergency jurisdiction in this case, the Supreme Court explained that if a child custody proceeding has started in another state, the law requires that the Ohio court “must immediately communicate with the court of the other state to resolve the emergency, protect the safety of the parties and the child, and set a period for the duration of the temporary order.”  After custody of J.B. was transferred to her grandfather, V.K.B. filed a notice in Arizona of her initial 2009 Ohio custody order. In addition, the Supreme Court said that when an earlier child custody ruling is enforceable in Ohio, an emergency order under the law is temporary and has to specify an amount of time for obtaining an order from the other state that has jurisdiction.

The Supreme Court also noted that grandparents do not have fundamental rights in the care and custody of a child, while parents do, and the “temporary” custody in this case has already lasted more than a year.

“[I]n this case the juvenile court has awarded ‘temporary custody’ but has neither communicated with the Arizona court nor specified the duration of the temporary order to allow the Arizona court to rule,” the court wrote. “Thus, there is no guarantee that the court will not simply sit on this ‘temporary’ order indefinitely.”

Explaining that Ohio courts acknowledge a principle of urgency in resolving child custody cases, the court held that an appeal is not an adequate remedy in this case:

“An ‘adequate remedy’ in child-custody cases is unlike that in other types of cases, because for a child and its parent, time is the most precious of commodities. If a child is removed from her parent for a year, as has already occurred in this case, that year can never be replaced. If a writ is not issued and the case [is] returned to the juvenile court in these circumstances, it may languish for one or two more years before the court issues an appealable order. The appeal can take an additional year or two by the time briefs are prepared and oral arguments delivered and the judges arrive at a conclusion. … The formative years [J.B.] spent away from her mother can never be recaptured.”

An appeal in other child custody cases may be an adequate remedy, the court explained. However, “where, as alleged here, (1) custody has been removed from a parent who previously had been awarded permanent custody, (2) custody is awarded to a nonparent in an ex parte proceeding, (3) the juvenile court is not complying with the requirements of the Uniform Act or other applicable law, and (4) the juvenile court has issued a ‘temporary’ order with no indication of when a hearing or other action might be taken to resolve the case, appeal is not an ‘adequate remedy at law’ for purposes of an extraordinary writ.”

The court’s majority opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, and William M. O’Neill. Justices Sharon L. Kennedy and Judith L. French dissented without opinion.

2013-0636. State ex rel. V.K.B. v. Smith, Slip Opinion No. 2013-Ohio-5477.

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