[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Cyran v. Cyran, Slip Opinion No. 2018-Ohio-24.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2018-OHIO-24

CYRAN, APPELLEE, v. CYRAN, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Cyran v. Cyran, Slip Opinion No. 2018-Ohio-24.] 

Domestic relations—Domestic-violence civil protection orders—Appeals—

Mootness—Collateral consequences—Absent a showing of legal collateral 

consequences resulting from an expired domestic-violence civil protection 

order, an appeal of that order is moot. 

(Nos. 2016-1737 and 2016-1870—Submitted September 13, 2017—Decided 

January 4, 2018.) 

APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County, 

No. 27009, 2016-Ohio-7323. 

_________________ 

O’NEILL, J.

{¶ 1} In this case we are asked to determine whether the collateralconsequences exception to mootness applies to an appeal of an expired domestic-
SUPREME COURT OF OHIO

 2

violence civil protection order issued pursuant to R.C. 3113.31, in the absence of 

any collateral consequences at the time of the appeal. We hold that absent a 

showing of legal collateral consequences resulting from an expired domesticviolence civil protection order, an appeal of that order is moot. 

Facts and Procedural History 

{¶ 2} Rebecca and Curtis Cyran’s marriage was dissolved in 2013, and a 

shared-parenting decree was put into effect for their three sons. On June 19, 2015, 

in the Montgomery County Court of Common Pleas, Domestic Relations Division, 

Rebecca filed a petition for a domestic-violence civil protection order against Curtis 

under R.C. 3113.31. The incident that led Rebecca to file the petition took place 

when she was picking up the children from Curtis on June 17, 2015. Rebecca’s 

petition stated that she was approaching the front door of Curtis’s house when 

Curtis rushed out the front door and threw her backward into the bushes. The 

petition added that Curtis went back inside the house, then came back out and said 

Rebecca was lucky that he did not shoot her. The domestic-relations court issued 

an ex parte domestic-violence civil protection order on June 19, 2015. The order 

made no change to Curtis and Rebecca’s parenting schedule and was to remain in 

effect until June 19, 2016. 

{¶ 3} On July 2, 2015, a magistrate conducted a full evidentiary hearing on 

Rebecca’s petition. The magistrate found by a preponderance of the evidence that 

Rebecca was in danger of or had been a victim of domestic violence as defined in 

R.C. 3113.31(A) and on August 20, 2015, issued a decision and permanent 

domestic-violence civil protection order that expired on June 19, 2016. Curtis 

timely objected to the magistrate’s decision, arguing that his statement was a 

conditional threat and that the protection order was not supported by the manifest 

weight of the evidence. On January 15, 2016, the trial court dismissed Curtis’s 

objections and adopted the magistrate’s order without change, retaining the June 

19, 2016 expiration date. Curtis timely appealed. On September 9, 2016, the 
January Term, 2018 

3

appellate court issued a show-cause order asking the parties to explain why the case 

should not be dismissed as moot because the protection order had expired. Curtis 

responded that Rebecca had sought the domestic-violence civil protection order 

only as leverage for herself in future postdivorce proceedings. Curtis also argued 

that he faced the possibility of collateral consequences with respect to his 

concealed-firearm permit and his credit report as well as his ability to obtain 

housing, drive certain vehicles, and obtain future employment. He urged the court 

to adopt the Eighth District’s rule that the possibility of collateral consequences is 

sufficient to support appellate consideration of an expired domestic-violence civil 

protection order. See Wilder v. Perna, 174 Ohio App.3d 586, 2007-Ohio-6635, 883 

N.E.2d 1095 (8th Dist.). Rebecca did not respond to the show-cause order, and she 

did not seek to extend the protection order. 

{¶ 4} On October 14, 2016, the appellate court dismissed the appeal as 

moot. The court examined each of the potential collateral consequences asserted 

by Curtis and found no provision of Ohio law imposing sanctions or adverse legal 

consequences on the basis of an expired protection order. The court acknowledged 

the Eighth District’s Wilder decision but declined to apply it. The court determined 

that it had no authority to speculate whether Curtis would suffer collateral 

consequences from the expired order in future post-divorce proceedings. 

{¶ 5} Curtis appealed to this court, asserting the following two propositions 

of law: 

Proposition of Law No. 1: The collateral consequences 

exception to mootness applies to an appeal from an expired 

protection order when the appellant faces possible collateral 

consequences that may not be ascertainable at the time of the appeal. 

Proposition of Law No. 2: There is a rebuttable presumption 

that an appeal from an expired protection order is not moot. 
SUPREME COURT OF OHIO

 4

{¶ 6} On February 22, 2017, this court accepted Curtis’s discretionary 

appeal. 148 Ohio St.3d 1409, 2017-Ohio-573, 69 N.E.3d 750. We also determined 

that a conflict exists between the Second Appellate District’s decision in this case 

and the Eighth Appellate District’s decision in Wilder on the following question of 

law: “Does the collateral consequences exception to mootness apply to an appeal 

from an expired protective order when the appellant faces possible collateral 

consequences that may not be ascertainable at the time of the appeal?” 

Accordingly, we consolidated Curtis’s discretionary appeal with the certifiedconflict case. 148 Ohio St.3d 1408, 2017-Ohio-573, 69 N.E.3d 749. 

{¶ 7} We reject both propositions of law and answer the certified question 

in the negative. We hold that in the absence of demonstrated legal collateral 

consequences, the collateral-consequences exception to the mootness doctrine does 

not apply to an expired domestic-violence civil protection order. In reaching this 

conclusion, however, we express no opinion about whether another exception to 

the mootness doctrine might apply in a different case. We also decline to establish 

a rebuttable presumption that an appeal from an expired domestic-violence civil 

protection order is not moot. 

Analysis 

Unascertainable Collateral Consequences 

{¶ 8} In his first proposition of law, Curtis argues that the collateralconsequences exception to the mootness doctrine applies to an appeal from an 

expired protection order when the appellant faces possible collateral consequences 

that may not be ascertainable at the time of the appeal. We disagree. 

{¶ 9} The role of courts is to decide adversarial legal cases and to issue 

judgments that can be carried into effect. Fortner v. Thomas, 22 Ohio St.2d 13, 14, 

257 N.E.2d 371 (1970). Under the mootness doctrine, American courts will not 

decide cases in which there is no longer an actual legal controversy between the 
January Term, 2018 

5

parties. In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. 

Thus, when parties “lack a legally cognizable interest in the outcome,” a case 

becomes moot. Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 

L.Ed.2d 491 (1969). This court has recognized the collateral-consequences 

exception to the mootness doctrine in criminal and traffic cases. State v. Golston, 

71 Ohio St.3d 224, 227, 643 N.E.2d 109 (1994) (due to the numerous statutory 

restrictions imposed on convicted felons, an appeal of a felony conviction is not 

moot even if the entire sentence has been satisfied before the matter is heard on 

appeal); Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 

278, ¶ 23, 31 (a misdemeanant demonstrates a substantial stake in the judgment of 

conviction even after the sentence has been completed when he contests the charges 

at trial and, after being convicted, seeks a stay of execution of sentence for the 

purpose of preventing an intended appeal from becoming moot; in her concurring 

opinion, Justice Lundberg Stratton pointed out Ohio Revised Code provisions that 

use a prior misdemeanor charge to enhance the penalty for a future criminal charge 

or penalty); State v. Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975), syllabus (a 

misdemeanant must offer evidence from which an inference can be drawn that the 

misdemeanant suffers some collateral disability in order to maintain the right to 

appeal a conviction); In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 

408, ¶ 14, 18 (an appeal of a traffic offense does not become moot after the 

defendant has paid the fines and costs, because the statutory imposition of points 

on a person’s driver’s license constitutes a collateral disability). Thus, under 

current law, the collateral-consequences exception to mootness applies in cases in 

which the collateral consequence is imposed as a matter of law. That is not the case 

here. 

{¶ 10} Here, Curtis asserts that the collateral-consequences exception to the 

mootness doctrine should be applied even when the consequences may not be 

ascertainable at the time of the appeal. He urges us to adopt the rule in Wilder, 174 
SUPREME COURT OF OHIO

 6

Ohio App.3d 586, 2007-Ohio-6635, 883 N.E.2d 1095. In Wilder, the Eighth 

District held that an appeal of an expired protection order is not moot, “because it 

is reasonably possible that adverse collateral consequences may occur.” Id. at ¶ 16. 

The court adopted the rationale of the Connecticut Supreme Court that “ ‘in the 

sensitive and often explosively litigated context of family dysfunction and 

dissolution,’ ” it is reasonably possible that adverse collateral consequences may 

occur as a result of the expired order. Id. at ¶ 15-16, quoting Putman v. Kennedy, 

279 Conn. 162, 169-174, 900 A.2d 1256 (2006). We disagree. 

{¶ 11} Finding a reasonable possibility that a collateral consequence may 

occur calls for speculation. We understand that divorce, postdivorce, and custody 

proceedings are sometimes acrimonious. However, “[i]t has become settled 

judicial responsibility for courts to refrain from giving opinions on abstract 

propositions and to avoid the imposition by judgment of premature declarations or 

advice upon potential controversies.” Fortner at 14. Here, as the Second District 

explained, there is no provision of Ohio law that imposes a restriction as a result of 

an expired protection order. Curtis does not demonstrate or argue that he has 

suffered any consequences. Rather, he argues that the possibility of future 

collateral consequences should preserve his appeal of the expired order. We are 

not convinced. Speculation is insufficient to establish a legally cognizable interest 

for which a court can order relief using the collateral-consequences exception to 

the mootness doctrine. 

Rebuttable Presumption 

{¶ 12} In his second proposition of law, Curtis asserts that there should be 

a rebuttable presumption that an appeal from an expired protection order is not 

moot. We decline to establish such a presumption. As discussed above, it is well 

established that the role of courts is to “ ‘decide actual controversies by a judgment 

which can be carried into effect.’ ” Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E. 21 

(1910), quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 
January Term, 2018 

7

(1895). Further, this court has made it clear that courts have a responsibility to 

refrain from giving advisory opinions. Smith v. Leis, 111 Ohio St.3d 493, 2006-

Ohio-6113, 857 N.E.2d 138, ¶ 16. 

{¶ 13} Equally clear is that domestic-violence civil protection orders are 

creatures of statute. R.C. 3113.31 establishes a comprehensive statutory scheme 

for issuing, modifying, and terminating domestic-violence civil protection orders. 

The statute vests the court with broad authority to tailor domestic-violence civil 

protection orders to fit the needs of each particular case. Felton v. Felton, 79 Ohio 

St.3d 34, 37-38, 679 N.E.2d 672 (1997). The statute does not, however, establish 

a rebuttable presumption that an appeal from an expired order is not moot, and it 

does not authorize courts to hear appeals of expired orders. Establishing a 

rebuttable presumption in R.C. 3113.31 that an expired civil protection order is not 

moot is a matter for the Ohio General Assembly, not for this court. Morris Plan 

Bank of Cleveland v. Viona, 122 Ohio St. 28, 32, 170 N.E. 650 (1930) (statutes 

should be amended by legislative enactment, not by judicial construction). 

Conclusion 

{¶ 14} “The presence of a disagreement, however sharp and acrimonious it 

may be, is insufficient to create an actual controversy if the parties to the action do 

not have adverse legal interests.” State ex rel. Barclays Bank, P.L.C. v. Hamilton 

Cty. Court of Common Pleas, 74 Ohio St.3d 536, 660 N.E.2d 458 (1996), paragraph 

one of the syllabus. Accordingly, we hold that in the absence of demonstrated legal 

collateral consequences, an appeal from an expired domestic-violence civil 

protection order does not satisfy the collateral-consequences exception to the 

mootness doctrine. We note, again, that we express no opinion about whether 

another exception to the mootness doctrine might apply in a different case. 

Judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ., 

concur. 
SUPREME COURT OF OHIO

 8

KENNEDY, J., dissents, with an opinion. 

_________________ 

 KENNEDY, J., dissenting. 

{¶ 15} Today, the majority holds that the collateral-consequences exception 

to the mootness doctrine does not apply to appellate review of a finding of domestic 

violence contained within a civil protection order (“CPO”) issued pursuant to R.C. 

3113.31, after a full hearing, when the order expires during the pendency of the 

appeal. While collateral consequences, to save an appeal from mootness, may not 

be speculative, see Pennsylvania v. Mimms, 434 U.S. 106, 108, 98 S.Ct. 330, 54 

L.Ed.2d 331 (1977), fn. 3, and must be more than a mere possibility, see Spencer 

v. Kemna, 523 U.S. 1, 14-16, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), proof of their 

existence beyond a reasonable doubt is not required. Collateral consequences are 

instead measured by probability or certainty. Id. 

{¶ 16} A court of competent jurisdiction is mandated by R.C. 

3109.04(F)(2)(c) to consider a “history of, or potential for * * * spouse abuse [or] 

other domestic violence” in determining whether shared parenting is in the best 

interest of a child when deciding whether to modify or terminate a decree of shared 

parenting and shared-parenting plan (“shared-parenting plan”). Therefore, when a 

respondent subject to a finding of domestic violence in a CPO is also a party to a 

shared-parenting plan, the legal collateral consequences of a CPO are probable and 

certain and the party’s appeal of the CPO is not moot. Therefore, I would reverse 

the judgment of the Second District Court of Appeals and remand this matter for 

appellate review. 

{¶ 17} When determining whether to modify or terminate a sharedparenting plan, a trial court is to determine the best interest of the children. See

R.C. 3109.04(B)(1). As set forth above, one of the factors the court is required to 

consider when determining whether shared parenting is in the children’s best 

interests is whether there is a history of or potential for domestic violence. See R.C. 
January Term, 2018 

9

3109.04(F)(2)(c). A history of or potential for domestic violence may also weigh 

in the court’s determination of other factors the court is required to consider, 

including “the ability of the parents to cooperate” in making joint decisions 

regarding their children, R.C. 3109.04(F)(2)(a), and each parent’s ability to 

“encourage the sharing of love, affection, and contact between the child and the 

other parent,” R.C. 3109.04(F)(2)(b). 

{¶ 18} In response to the order issued by the Second District requiring him 

to show cause why his appeal of an expired domestic-violence CPO should not be 

dismissed as moot, appellant, Curtis Cyran, informed the court that he and appellee, 

Rebecca Cyran, had three minor children whom they regularly exchanged for 

parenting time and that legal actions between Curtis and Rebecca were still 

pending. In support of his argument that collateral consequences resulted from the 

CPO, Curtis stated that “ ‘a trial judge making a future custody determination 

* * * might consider the issuance of a domestic violence restraining order in making 

that sensitive decision,’ ” quoting Wilder v. Perna, 174 Ohio App.3d 586, 2007-

Ohio-6635, 883 N.E.2d 1095. Thereafter, Curtis cited other collateral 

consequences including potential difficulty obtaining housing and employment and 

potential impacts on his credit report and concealed-firearm permit. 

{¶ 19} In finding the appeal of the CPO moot, the Second District followed 

the precedent established in Erbes v. Meyer, 2d Dist, Montgomery No. 23917, 

2011-Ohio-3274, Baldridge v. Baldridge, 2d Dist. Darke No. 2010-CA-10, 2011-

Ohio-2423, and Jagow v. Weinstein, 2d Dist. Montgomery No. 24309, 2011-Ohio2683. 2016-Ohio-7323, 63 N.E.3d 187, ¶ 5, 7. However, a careful review of those 

cases demonstrates the danger of equating the wide variety of protection orders 

available in Ohio with domestic-violence CPOs and of treating the facts of those 

cases as equivalent to those in this case. 

{¶ 20} In Erbes, the court issued an antistalking civil protection order 

(“SCPO”), id. at ¶ 1, and in Jagow, the court issued a consent-agreement SCPO, id. 
SUPREME COURT OF OHIO

 10 

at ¶ 2. An SCPO is granted pursuant to R.C. 2903.214, and the underlying 

allegation in the petition must be that the respondent has engaged in a violation of 

R.C. 2903.211, the criminal statute that prohibits menacing by stalking. A finding 

of domestic violence is not required for a court to issue an SCPO. While it is 

possible for an SCPO to be issued against a current or former spouse, see e.g., Wildi 

v. Wildi, 159 Ohio App.3d 568, 2005-Ohio-257, 824 N.E.2d 1011, ¶ 1 (10th Dist.), 

and Short v. Walker, 12th Dist. Preble No. CA2000-08-009, 2001 WL 32808, *1 

(Jan. 16, 2001), the facts of Erbes and Jagow are devoid of any mention that the 

parties were spouses, were family or household members, were parents to common 

children, or were subject to a shared-parenting plan. 

{¶ 21} While Baldridge involved the issuance of a CPO, as in this case, the 

appellant in that case was not challenging a finding of domestic violence. The 

appellant was a wife who had sought and received a CPO and who challenged a 

provision in the CPO allowing her husband to contact her to discuss their child. Id. 

at ¶ 2. Pursuant to R.C. 3113.31(E)(3)(b), however, all parenting provisions 

contained in a CPO are terminated when a court issues a subsequent parenting order 

in a divorce proceeding, and subsequent to the issuance of the CPO, the trial court 

in Baldridge had issued a final judgment and decree of divorce containing custody 

and visitation provisions. Under R.C. 3113.31(E)(3)(b), those provisions 

superseded the portion of the CPO that the wife sought to overturn on appeal. 

{¶ 22} While the appellate court in this case relied on cases involving 

protection orders, the majority narrowly focuses on cases with collateral 

consequences flowing from criminal and traffic offenses in reaching the conclusion 

that the expiration of the CPO at issue here rendered the appeal moot. While the 

collateral-consequences exception to the mootness doctrine developed out of the 

adverse consequences arising from criminal convictions, see State v. Golston, 71 

Ohio St.3d 224, 643 N.E.2d 109 (1994), syllabus, our consideration of collateral 

consequences should not take such a myopic view. 
January Term, 2018 

11 

{¶ 23} In this case, Rebecca and Curtis are subject to a shared-parenting 

plan, and the domestic-relations court retains jurisdiction to modify or terminate 

the shared-parenting plan until their children reach the age of majority. See R.C. 

3109.04(B)(1); see also Loetz v. Loetz, 63 Ohio St.2d 1, 2, 406 N.E.2d 1093 (1980). 

The legislature has granted a trial court the ability to modify or terminate a sharedparenting plan at any time upon motion of the court or either party subject to the 

plan, R.C. 3109.04(E)(2)(b), and the determination whether to modify or terminate 

the shared-parenting plan is based on the best interest of the children, R.C. 

3109.04(E)(1)(a). 

{¶ 24} In determining whether shared parenting is in the best interest of the 

children, the General Assembly has enumerated mandatory factors for a court to 

consider. See R.C. 3109.04(F)(2)(a) through (c). The General Assembly did not 

assign any relative weight to the factors; therefore, the weight assigned to each 

factor lies within the trial court’s sole discretion. 

{¶ 25} When the court issued the CPO against Curtis, it made the finding 

that Curtis committed an act of domestic violence against Rebecca. While the 

following is not an exhaustive list of cases, Ohio case law abounds with examples 

of parents whose parental rights and responsibilities have been affected by a prior 

court’s determination that one parent has been found to have committed an act of 

domestic violence or that a court issued a CPO. See Heilman v. Heilman, 3d Dist. 

Hardin No. 6-12-08, 2012-Ohio-5133, ¶ 29 (trial court factored in CPO in denying 

father’s motion for shared parenting); Ruble v. Ruble, 12th Dist. Madison No. 

CA2010-09-019, 2011-Ohio-3350, ¶ 13 (pursuant to R.C. 3109.04(F)(1)(c), court 

considered testimony about husband’s domestic violence against wife in 

determining the children’s best interest); Thacker v. Thacker, 3d Dist. Marion No. 

9-10-26, 2010-Ohio-5675, ¶ 51 (trial court considered incidents of domestic 

violence, including conviction for violating CPO, in denying father’s motion for 

shared parenting); Barry v. Barry, 169 Ohio App.3d 129, 2006-Ohio-5008, 862 
SUPREME COURT OF OHIO

 12 

N.E.2d 143, ¶ 14 (8th Dist.) (domestic violence by one spouse against another is 

relevant in a determination of an allocation of parental rights and responsibilities); 

Clark v. Clark, 7th Dist. Noble No. 03 NO 308, 2004-Ohio-1577, ¶ 47 (court did 

not abuse its discretion in considering mother’s domestic violence against father 

when naming father residential parent and legal custodian of minor child); Dodd v. 

Dodd, 6th Dist. Lucas No. L-00-1168, 2001 WL 812244, *1 (July 13, 2001) (court 

properly considered “volatile relationship of the parents and [father’s] violent 

tendencies” in naming mother residential parent and legal custodian of minor 

children); Kelly-Doley v. Doley, 11th Dist. Lake No. 96-L-217, 1999 WL 262165, 

*8 (March 12, 1999) (court properly found shared parenting would not be in the 

best interest of the child due to parents’ violent and hostile relationship); Butzer v. 

Butzer, 9th Dist. Wayne No. 97CA0018, 1998 WL 34615, *2 (Jan. 14, 1998) (court 

properly considered father’s conviction for domestic violence against mother in the 

presence of the children in naming mother primary residential parent); Alexander 

v. Oiler, 2d Dist. Clark No. 96-CA-03, 1997 WL 7166, *4 (Jan. 10, 1997) (father’s 

arrest for domestic violence was a substantial change in circumstances to support a 

modification of custody); Clark v. Clark, 10th Dist. Franklin No. 96APF08-1063, 

1997 WL 170298, *5 (April 8, 1997) (trial court did not err in stating that 

“further domestic violence would be grounds to support a motion to modify 

parental rights and responsibilities”); Taylor v. Taylor, 5th Dist. Richland No. 94 

CA 67, 1995 WL 507446, *3 (May 3, 1995) (court did not err in considering 

incidents of violence between mother and boyfriend in termination of sharedparenting plan). 

{¶ 26} In contrast to the Second District’s determination in this case, the 

Eighth District held in Wilder, the case certified in conflict with this one, that an 

appeal from a CPO was not rendered moot by the CPO’s expiration. 174 Ohio 

App.3d 586, 2007-Ohio-6635, 883 N.E.2d 1095, at ¶ 16. 
January Term, 2018 

13 

{¶ 27} In Wilder, the parties had an agreed parenting-time schedule. The 

mother filed a petition for a CPO against the father on behalf of the child. The trial 

court issued the CPO, and the father appealed. The CPO expired during the 

pendency of the appeal. In determining that the appeal of the CPO was not moot, 

the Wilder court relied on Putman v. Kennedy, 279 Conn. 162, 173-174, 900 A.2d 

1256 (2006), and Cauwenbergh v. Cauwenbergh, 11th Dist. Ashtabula No. 2006-

A-0008, 2007-Ohio-1070. In Putman, the court held that an appeal of a finding of 

domestic violence in a CPO is not moot, in part because that finding of domestic 

violence can be used in future proceedings determining parental rights and 

responsibilities. Id. at 1263. In Cauwenbergh, the Eleventh District relied on 

Putman in concluding that the appeal of a CPO was not moot. Cauwenbergh at 

¶ 18. 

{¶ 28} Two other appellate districts have agreed with the Eighth District 

Court of Appeals. See J.T. v. R.T., 9th Dist. Medina No. 14CA0061-M, 2015-Ohio4418, ¶ 6; Detrick v. Preece, 3rd Dist. Logan No. 8-12-17, 2013-Ohio-2499, ¶ 8. 

{¶ 29} And in addition to the Supreme Court of Connecticut in Putman, our 

sister supreme court in the state of Maine has also rejected the mootness of an 

appeal from a CPO that has expired, because of the required statutory consideration 

of a domestic-violence protection order in future child-custody actions. Chretien 

v. Chretien, 2017 ME 192, 170 A.3d 260, ¶ 9. 

{¶ 30} Other state appellate courts have also recognized the collateral 

consequences resulting from required statutory considerations of a domesticviolence protection order in future child-custody actions and have permitted 

appeals of expired orders. See Poland v. Poland, 2017 Ark. App. 178, 518 S.W.3d 

98, 103-104; Cardoso v. Soldo, 230 Ariz. 614, 277 P.3d 811, ¶ 10 (Ariz.App.2012); 

Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn.App.2009); Schaban-Maurer v. 

Maurer-Schaban, 238 S.W.3d 815, 823 (Tex.App.2007); Smith ex rel. Smith v. 
SUPREME COURT OF OHIO

 14 

Smith, 145 N.C.App. 434, 437, 549 S.E.2d 912 (2001); In re H.Q., 152 Wis.2d 701, 

707-708, 449 N.W.2d 75 (Wis.App.1989). 

{¶ 31} Society’s view of domestic violence and the reach of its ill effects 

has changed over the past 30 years, and rightfully so. Adrine & Ruden, Ohio 

Domestic Violence Law, Section 1:1, at 10-12 (2016). In response, the Ohio 

General Assembly has enacted laws exacting harsher criminal penalties for acts of 

domestic violence and has created a system of civil redress, i.e., civil protection 

orders, see Felton v. Felton, 79 Ohio St.3d 34, 37, 679 N.E.2d 672 (1997). In 

keeping with the public policies underlying these changes, the Ohio legislature has 

also enacted statutory guidelines mandating that a trial court, in determining the 

parental rights and responsibilities of children, must consider the best interests of 

the children and that the determination of whether shared parenting of children is 

appropriate must include consideration of whether there is a history or potential for 

domestic violence. R.C. 3109.04(F)(2)(c). 

{¶ 32} While the General Assembly rightfully is the “ultimate arbiter of 

public policy” on these considerations, State ex rel. Plain Dealer Publishing Co. v. 

Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 54, we should 

not foreclose a respondent’s ability to challenge a finding of domestic violence in 

a CPO when we know that it is probable or certain that that finding will have an 

effect on future parenting determinations. While we can hope that a trial court does 

not consider one factor alone in a vacuum, the determination of the best interest of 

the child rests within the sole discretion of the trial court. As such, a finding of 

domestic violence alone can be relied on to deny a parent the “ ‘fundamental liberty 

interest’ in the care, custody, and management of the child,” In re Murray, 52 Ohio 

St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S. 

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). 

{¶ 33} A respondent who is found to have committed an act of domestic 

violence and who has been subject to a CPO has a limited window of opportunity 
January Term, 2018 

15 

to challenge that finding on appeal. Because a finding of domestic violence can 

impact a person’s fundamental constitutional right to parent their children, we 

should not deny them their day in court. 

{¶ 34} Today, the majority has given a weapon to those who would chose 

to manipulate parenting proceedings. Just as people race to the courthouse to use 

an ex parte CPO to get an advantage on residential parenting status before the filing 

of a divorce or custody action, they will use the majority’s opinion to gain an 

advantage in an ongoing parenting dispute. Based on today’s majority opinion, 

regardless of whether a full-hearing CPO expires or is dismissed, a respondent can 

never challenge on appeal the finding of domestic violence, and thereby, the 

respondent is branded forevermore with the taint of being a perpetrator of domestic 

violence. 

{¶ 35} The ever-present likelihood that the finding of domestic violence in 

a CPO may impact the determination of the best interest of the children and color 

the court’s view of whether a parent is capable of making joint decisions with the 

other parent regarding their children and encouraging the love and affection 

between the children and the other parent is the embodiment of a collateral 

consequence. Because of the commands of the General Assembly in R.C. 3109.04, 

it is neither “speculative” nor “insufficient to establish a legally cognizable interest 

for which a court can order relief.” Majority opinion at ¶ 11. 

{¶ 36} As legal collateral consequences flow from a CPO when the 

respondent is also a party to a shared-parenting plan, I decline to address the issue 

of societal collateral consequences. 

{¶ 37} Because a court of competent jurisdiction is required as a matter of 

law pursuant to R.C. 3109.04(F)(2)(c) to consider a “history of, or potential for 

* * * spouse abuse, [or] other domestic violence” when deciding whether shared 

parenting is in the best interest of the children, legal collateral consequences as a 

result of a finding of domestic violence in an expired CPO are probable and certain 
SUPREME COURT OF OHIO

 16 

in this case. Therefore, based on the facts of this case, when a respondent subject 

to a finding of domestic violence in a CPO is also a party to a shared-parenting 

plan, the CPO is not moot. Therefore, I would reverse the judgment of the Second 

District Court of Appeals and remand this matter for appellate review. 

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Wright & Schulte, L.L.C., and Stephen D. Behnke, for appellant. 

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