{¶ 28} The controlling case law in this matter is In rePerales (1977), 52 Ohio St. 2d 89, 6 O.O.3d 293, 369 N.E.2d 1047, which establishes that in cases between a parent and nonparent, the natural parent has a fundamental interest in the care, custody, and management of his children and a "paramount right" to their custody, unless the right has been forfeited by abandonment, contract, or a total inability to care for and support the children. In short, the court may not award custody to a nonparent without first making a finding of parental unsuitability. In re Hockstok, 98 Ohio St. 3d 238,2002-Ohio-7208, 781 N.E.2d 971.
{¶ 29} Here, the magistrate, after determining that none of the above factors are apposite to the case at bar, engaged in what at first blush appears to be a best-interest analysis as between the biological father and maternal grandmother, when the analysis called for was the suitability of the natural parent. The labels used by the magistrate are irrelevant; it is the nature of the analysis that is an issue. *Page 802
{¶ 30} The magistrate made the following findings: the father rarely attended the children's extracurricular activities, did not attend parent/teacher conferences, and failed to maintain child support during unemployment. She further found that he had continuing problems finding reliable transportation and that the hours of his current employment made him unavailable to prepare the children for school or provide transportation. All of these problems are endemic to the plight of the working parent, however, and should not be used to declare a parent unsuitable. Under this logic, a working parent would always be deprived of custody in favor of an unemployed or retired relative.
{¶ 31} The appropriate analysis is whether the natural father is unsuitable as custodian, not whether someone else is more suitable. This is indeed a difficult case. It is clear that the magistrate was touched by the children's election to stay with their grandmother and the guardian ad litem's recommendation that they not be dislocated yet again because of the death of their mother. These factors could admittedly constitute issues of unsuitability, and, therefore, in light of these factors only, I vote to affirm the judgment of the trier of fact.