The Ohio Supreme Court today vacated a woman’s attempt to adopt her infant niece in an Ohio court while the woman and the child’s grandmother were in the midst of a custody dispute over the girl in a West Virginia court.

In a per curiam opinion, the Supreme Court found the Belmont County Probate Court in Ohio “patently and unambiguously” lacked jurisdiction to approve the 2016 adoption of a girl identified in court documents as “G.G.” by her aunt, Elizabeth Garrett. Tamalie Garrett, who is Elizabeth’s mother and G.G.’s grandmother, contested the adoption, claiming she was not informed in advance of the proceedings, and only heard about it from a West Virginia court.

The Ohio Supreme Court found the Family Court of Hancock County, West Virginia, still had jurisdiction over the grandmother’s visitation rights when the adoption was granted. The adoption constituted an improper modification of the visitation rights, the Court concluded.

The opinion noted the federal Parental Kidnapping Prevention Act (PKPA) requires “states to afford full faith and credit to valid child custody orders of another state.”

Newborn’s Mother Grants Sister Guardianship
G.G. was born in June 2011, and in December 2011, Amanda Garrett granted her sister, Elizabeth, guardianship of G.G. The Hancock County, West Virginia, family court designated Elizabeth as the legal guardian and awarded weekly and holiday visitation rights to the mother of Amanda and Elizabeth, Tamalie Garrett.

In 2012, Elizabeth and G.G. moved to Ohio. Four years later, Tamalie asked the West Virginia court to modify the 2011 visitation order, and subsequently asked the court to hold Elizabeth in contempt for violating the visitation order. The mother and daughter reached an agreement through mediation in 2016 regarding parenting and visitation issues.

Sister Seeks Adoption
Two days before the settlement in the West Virginia court, and without informing her mother, Elizabeth filed a petition in Belmont County Probate Court to adopt G.G. Amanda, the biological mother, permanently surrendered G.G. to Elizabeth. The probate court never notified Tamalie or the West Virginia family court of the petition filing. In December 2016, the Ohio probate court judge granted the adoption and sent a copy of the decree to the West Virginia court, which then mailed a copy to Tamalie. The West Virginia court notified Tamalie that unless she successfully had the Ohio adoption set aside or modified, the family court would dismiss her pending case.

In April 2017, the West Virginia court dismissed without prejudice Tamalie’s request for a contempt order against Elizabeth. Tamalie requested the Ohio probate court vacate the adoption. The Ohio court did not change its order, but stayed the case pending the resolution of the West Virginia litigation between Tamalie and Elizabeth.

Tamalie then filed a request with the Ohio Supreme Court to stop the adoption. The Supreme Court agreed to hear Tamalie’s request for a writ of prohibition.

Federal Law Impacts Court Order
The opinion noted that in its 2003 State ex rel. Morenz v. Kerr decision, the Ohio Supreme Court stated that an Ohio court lacks jurisdiction to proceed in a child-custody case when a child-custody case is pending in the court of another state and the other state court is acting consistently with the federal PKPA and the Uniform Child Custody Jurisdiction Act (UCCJA). The Court noted Ohio, West Virginia, and most states have replaced the UCCJA at issue in Morenz with the federal Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

The Court ruled that the visitation order originally granted to Tamalie by the West Virginia family court means the PKPA applies to custody and visitations orders regarding G.G. The Court found that Tamalie had to prove two requirements were met for her to claim that the West Virginia court still had jurisdiction.

The Supreme Court stated that Tamalie met the requirement under the PKPA that grants exclusive continuing jurisdiction over a prior custody order or visitation order if at the time of the adoption, the child or any contestant in a custody matter still resided in West Virginia. Tamalie resided in West Virginia at the time of the adoption.

To meet the second requirement Tamalie had to show West Virginia was acting consistently with the UCCJEA. The UCCJEA indicated that West Virginia would retain jurisdiction unless either the Ohio probate court or the West Virginia family court determined whether the child, the child’s parents, or any person acting as a parent no longer lived in West Virginia. The Supreme Court ruled neither court made the requisite “determination.”

The Supreme Court stated the probate court had evidence that the biological mother still lived in West Virginia, and concluded the probate court did not make the required findings to take jurisdiction.

“Tamalie has established that West Virginia still had jurisdiction over the initial visitation determination and had the requisite continuing jurisdiction to modify that order,” the opinion stated.

The Supreme Court found the probate court’s adoption decree was a modification of the West Virginia visitation order. It noted the purpose of the federal PKPA is to avoid jurisdictional competition and conflict between state courts and that the law requires the contestants in custody disputes to receive reasonable notice and the opportunity to be heard.

“But here no attempt was made to comply with this provision of the PKPA, further defeating the goals implicit in the act,” the opinion stated.

The Supreme Court granted the writ and ordered the probate court to vacate the adoption and cease the proceedings. The six justices voting on the matter unanimously joined the opinion. Justice Mary DeGenaro did not participate in the case.

2017-0801. State ex rel. Garrett v. Costine, Slip Opinion No. 2018-Ohio-1613.

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