concurring in part and dissenting in part.
{¶ 76} I concur in the majority’s decision to reverse the judgment of the trial court and remand the matter for further proceedings. However, I dissent with respect to affirming the civil protection orders.
{¶ 77} This writer does not condone the behavior of appellants. However, there is insufficient evidence, based upon the elements of domestic violence, to justify a civil protection order, as the acts of appellants in this case do not satisfy the elements under R.C. 3113.31.
{¶ 78} R.C. 3113.31(A) provides:
{¶ 79} “(A) As used in this section:
{¶ 80} “(1) ‘Domestic violence’ means the occurrence of one or more of the following acts against a family or household member:
{¶ 81} “(a) Attempting to cause or recklessly causing bodily injury;
{¶ 82} “(b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 (2903.21.1) or 2911.211 (2911.21.1) of the Revised Code;
{¶ 83} “(c) Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 (2151.03.1) of the Revised Code;
{¶ 84} “(d) Committing a sexually oriented offense.”
{¶ 85} An open-container violation is insufficient, standing alone, to justify a civil protection order. In order to justify a civil protection order in this case, any of the foregoing elements of domestic violence must have been present. However, the record before this court does not establish the presence of any element of domestic violence. The facts simply reveal the following: the child never got in the car; the parties called the police; the officer was called to the scene and did an investigation; and no citation was issued for OVI, child endangering, or domestic violence.
{¶ 86} A violation of the open-container statute, a minor misdemeanor, simply does not rise to the level of “recklessness” necessary to sustain either domestic *387violence under R.C. 3113.31(A) or child endangering pursuant to R.C. 2919.22(A), which involves a “substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.” See R.C. 4301.62 and 4301.64. There is no evidence that appellants consumed alcohol while driving on the date at issue, nor is there sufficient evidence of impairment. There is also no evidence that the child was ever harmed by appellants, nor is there any evidence of dependency, neglect, or abuse.
{¶ 87} R.C. 4301.64 provides that “[n]o person shall consume any beer or intoxicating liquor in a motor vehicle.” However, the record here does not contain evidence of consumption. A violation of R.C. 4301.64, without more, does not constitute child endangering pursuant to R.C. 2919.22, nor does it constitute domestic violence under R.C. 3113.31(A) to justify a civil protection order. The evidence was insufficient to establish that alcohol affected Mr. Heindell’s driving or that the child was put in danger or risk of danger. The consumption of alcohol is, in and of itself, insufficient to support a civil protection order, as the officer called to the scene was tasked with investigating.
{¶ 88} In addition, because the juvenile court had already determined parental rights and responsibilities, the domestic-relations court lacked subject-matter jurisdiction over the issue, making its order of temporary custody void for lack of jurisdiction. See In re Poling (1992), 64 Ohio St.3d 211, 213-218, 594 N.E.2d 589. The domestic-relations court is required to transfer incidents of alleged child abuse to the juvenile court for determination and adjudication. See R.C. 2151.23 and 3109.06. It is apparent that this case was an additional effort to get custody of the child during an ugly and contentious domestic-custody battle. The movant chose not to file an emergency motion to suspend visitation in the court that had jurisdiction over the custody of the minor child and the court most familiar with the family’s issues, which is the purpose of original jurisdiction in custody disputes. The primary and exclusive jurisdiction is in the juvenile court. The effect was an erroneous decision that has the effect of prolonging the custody battle at the child’s emotional expense.
{¶ 89} For the foregoing reasons, I concur in part and dissent in part.