I must dissent from the majority opinion as I am convinced that it does not get to the real issue involved. It is based upon the fact that since the grandparents, as such, have no legal right to visitations with the child, the court below had no authority to grant same. This is a non sequitur.
It is admitted that grandparents have no legal right to demand that a divorce court grant them visitation rights with a *Page 175 grandchild. It is also admitted that grandparents are not entitled to custody in the absence of a finding that both parents "are not suitable persons to have custody." However "visitation rights" and "custody" are not to be confused. They are entirely different and are governed by entirely different rules of law. Likewise the right of visitation, to which a parent who is deprived of custody is entitled, by statute, is not to be mistaken for or confused with the privilege of visitation, which the Common Pleas Court, in a proper case, in the exercise of its equity powers and judicial discretion, grants, as being for the welfare and to the best interests of a child. It is the failure of the majority opinion to distinguish between visitation rights and custody, to distinguish between the right to visitation and the privilege of visitation, and consider the equity powers and judicial discretion vested in the Common Pleas Court, that gives rise to this dissent.
The majority opinion (page 169) bases its holding on the authority of the statute (Section 3109.05) and the three cited cases (Hackett, Selby, and Grandon). The statute involved, granting visitation rights to a parent deprived of custody, in no way attempts to limit or deny other visitation rights and the three cases (as well as the Baker case) all are change of custody cases which do not involve visitation rights. To forbid visitation rights or to deny the Common Pleas Court the right to grant the privilege of visitation on the theory that such would be contrary to or a diminution of custody is to split a hair.
In the case of Kay v. Kay, 65 Ohio Law. Abs. 472, Judge Lybarger of the Common Pleas Court of Cuyahoga County was confronted with a similar motion filed by a divorced father, who had moved to California, asking that reasonable visitation rights be granted to his parents, the paternal grandparents of the child, who lived in Lakewood, the mother of the child having remarried and was living in Avon Lake in Lorain County. Judge Lybarger was thus confronted by two questions: First, a legal question. Did he have authority to grant such a motion? and, if so: Second, a factual question. Would it be proper to do so under the facts and circumstances presented? He answered the first question as follows:
"There can be no doubt that a court may, when propriety *Page 176 or necessity dictate, grant the privilege of visitation to grandparents, just as it may grant custody to a grandparent or some outsider if neither of the child's parents is a suitable person for such purpose. However, the granting of a right of visitation to others than a parent should be done only after a showing that the welfare of the child either demands it or will not be adversely affected by it."
He answered the second question by reviewing the testimony offered, and stated:
"All things considered, the court is convinced that it would not be to the best interests of the child to order that the grandparents have the right of visitation."
I would approve and adopt the legal conclusion arrived at in this decision, and, in my opinion, it is not obiter dictum, as the legal question involved had to be decided. The result of the case, being against the grandparents, was based entirely upon the facts and circumstances introduced in evidence.
In the case before us the Common Pleas Court had the advantage of hearing and seeing from the witness chair, the mother, the stepfather, who had married the mother only three weeks before the hearing, and both grandparents. The Court made a separate finding of facts, which it is necessary to consider, as the facts are all-important in a case of this nature.
The court found that the father of the child "James Shriver is now in jail and has not exercised his visitation rights since January, 1965." The hearing was on October 16, 1965. The evidence discloses that the father had been in jail at Lima for about four months awaiting trial upon two charges of unarmed robbery. His chances of being around for visitation rights in the near future were, therefore, extremely slim.
The court further found "that said child has been in frequent contact with his grandparents, seeing them approximately every two weeks or oftener from the time of the divorce until August, 1965." The divorce was granted June 30, 1962, so the close and intimate relationship between the child and the grandparents had been in effect for over three years. The evidence discloses that the mother worked on Saturdays in a Beauty Shop with her mother and had encouraged and readily consented to such visitations as it relieved her of hiring a baby-sitter and gave her an opportunity to have dates. *Page 177
The court found further that "the visits with the grandparents would ordinarily be from Friday night to Saturday night and sometimes to Sunday morning. The grandparents keep a pony for the child, have bought clothes for him, maintain an insurance policy on James Shriver's life with the child as beneficiary in the sum of $5000, and have established a college fund for the child." The evidence shows that the grandparents have paid the premiums on the life insurance for their son since it was taken out years ago and that the child is the present beneficiary and that the college fund is a separate bank account in the name of the grandfather and in which $500 has been deposited annually for the past three years. The majority opinion makes light of this because the beneficiary could be changed or the savings account closed out. The evidence discloses that this child is the only grandchild these grandparents have and I would credit them with having love and affection in their hearts and not question their motives. This arrangement did not spring up overnight but has been planned over the years
The court finally concluded "The court finds that there has been a close and normal relationship with the paternal grandparents and that it would be for the best interest of the child for the grandparents to have rights of visitation. The paternal grandparents occupy an important place in the life of this child and a severing of this relationship could well be upsetting and detrimental to the welfare of the child. The court is of the opinion that in the absence of a specific order for visitation with the paternal grandparents, the contact would be severed. This opinion is based upon the testimony of Robert Doyle who indicated strong objection to granting visitation rights to the paternal grandparents, as contrasted with the statements of Bonnie Shriver to the Court."
The evidence discloses that after a period of only three weeks the new stepfather was attempting to "rule the roost" and had developed hostility toward the grandparents as demonstrated by his brash and smart-alec answer of "Too long" when asked how long he had known the grandparents.
Thus the trial court was forced to the conclusion that if the close association and affection developed over a period of more than three years and which it had found should be continued *Page 178 for the welfare and the best interest of the child, was to continue at all it would have to be by court order rather than by an innocuous warning that if voluntary visitations were not continued in the future it might affect future considerations of the matter.
In my opinion under the law the Common Pleas Court in the exercise of its equity powers and judicial discretion had the authority to grant the privilege of visitation to the grandparents and, under the facts and circumstances present, arrived at a wise and sensible conclusion and the judgment appealed from should be affirmed.