[Cite as In re A.D., 2019-Ohio-3212.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

In re A.D., T.D. Court of Appeals No. L-18-1151 

 

 Trial Court No. JC 18267086 

 

 DECISION AND JUDGMENT

 Decided: August 9, 2019 

* * * * * 

 Karin L. Coble, for appellant. 

 Joanna M. Orth, for appellee. 

* * * * * 

SINGER, J. 

{¶ 1} In this accelerated appeal, D.D. (“appellant”) challenges the June 27, 2018 

judgment of the Lucas County Court of Common Pleas, Juvenile Division, where 

maternal aunt, H. K. (“appellee”), was awarded temporary custody of appellant’s two 
2.

children, A.D. and T.D. Finding error in the trial court’s exercise of jurisdiction, we 

vacate and remand. 

{¶ 2} A.S. was appellant’s ex-wife and the mother of his two children. She and 

appellant divorced in 2013, but maintained a post-marital relationship until January 2018, 

when she died. The children were born in Michigan and resided there, aside from a 

period between January and August of 2017. During that time, the children lived in Ohio 

with A.S. following a domestic dispute between appellant and A.S., which occurred in 

January 2017. During the dispute, appellant allegedly locked A.S. out of their shared 

residence and physically harmed A.D. 

{¶ 3} Sometime before August 18, 2017, A.S. and the children moved back to 

Michigan and lived separately from appellant. There is a contention as to when exactly 

A.S. moved back to Michigan, but for purposes of disposition we find that point of 

contention irrelevant. The children were enrolled in a Michigan school for the 2017-2018 

school year. A.S. and appellant rekindled their relationship, and he remained present and 

active in her and their children’s lives. 

{¶ 4} Pursuant to a January 22, 2013 Michigan court order in which A.S. and 

appellant were granted their divorce, both parties were awarded joint custody of A.D. and 

T.D. The order has a section entitled “CUSTODY OF CHILDREN,” which states: “IT 

IS FURTHER ORDERED AND ADJUDGED that the parties are awarded joint legal 

custody of the minor child[ren]. Physical custody of said child[ren] shall be with the 

Plaintiff/Mother.” 
3.

{¶ 5} The order also reflects that the parties agreed to the following terms: 

DOMICILE/RESIDENCE OF MINOR CHILDREN 

Upon every change of residence or address of any minor child 

mentioned herein, the person having custody of such child shall promptly 

notify the Friend of the Court thereof in writing, stating the new address 

with like particularity as noted above. THE DOMICILE OF ANY MINOR 

CHILD MENTIONED HEREIN SHALL NOT BE REMOVED FROM 

THE STATE OF MICHIGAN * * * WITHOUT THE PRIOR WRITTEN 

CONSENT OF THIS COURT. 

100 MILE RULE 

A parent who has custody or parenting time of a child as governed 

by this Order shall not change the legal residence (domicile) of the child 

outside the region agreed upon above except in compliance with Section 11 

of the Child Custody Act of 1970, 1970 PA 91, MCL 722.31. 

{¶ 6} Subsequently, A.S. and appellant petitioned the same Michigan court to 

expand the terms of the January 22, 2013 order. As a result, the court issued a June 13, 

2013 order, which states as follows: 

Exchange of the children for parenting time shall take place at the 

gas station at Exit 1 on Rte 23. Mother shall be allowed to change domicile 

to the State of Ohio as long as that domicile is within 100 miles of the 

Courthouse in the City of Monroe. Father shall advise mother when his 
4.

counselling is concluded. There shall be no use or possession of alcohol or 

illegal drugs during contact with the minor children. 

{¶ 7} As of September 2017, appellant’s visitation with A.D. was “as agreed upon 

by the parties[,]” and his visitation with T.D. was during the week, every other weekend, 

holidays, and four weeks of summer. According to appellant, his relationship with A.S. 

and the children remained positive and consistent. 

{¶ 8} January 26, 2018 is the day A.S. died from injuries sustained in a motorcycle 

accident while riding with appellant. He was the driver and was allegedly intoxicated. 

This is the same night A.S.’s sister, appellee H.K., retrieved the children from Michigan 

and brought them to Maumee. Appellant remained hospitalized with a traumatic brain 

injury for approximately two weeks. 

{¶ 9} On February 9, 2018, appellee H.K. filed an ex parte emergency petition for 

custody of the children in the trial court. An emergency hearing was held on February 

13, 2018, and appellee was granted temporary custody. 

{¶ 10} During the hearing the trial court acknowledged that appellant had filed, in 

Jackson County, Michigan Probate Court, a petition to suspend his parental rights and for 

his mother, J.W., to be appointed as a limited guardian over the children. In open court 

the magistrate specifically told appellant’s counsel to advise the grandmother to inform 

the Michigan court that Ohio had exercised emergency jurisdiction over the children. 

The Michigan petition was subsequently withdrawn or dismissed, but there is no 

judgment entry in the record indicating a reason why. 
5.

{¶ 11} On March 29, 2018, a hearing was held to determine if Ohio had 

jurisdiction. The magistrate determined it did. Appellant filed objections, but on June 

27, 2018, the magistrate’s order was affirmed by the trial court. 

{¶ 12} Appellant timely appeals, setting forth the following assigned error: 

I. The trial court clearly and unambiguously lacks subject matter 

jurisdiction pursuant to the UCCJEA and the PKPA. 

Appellee contends the court was properly vested with jurisdiction. 

{¶ 13} In order for Ohio to have jurisdiction in this matter, the procedural 

requirements of the Uniform Child Custody Jurisdiction and Enforcement Act 

(“UCCJEA”) must be satisfied. See R.C. 3127.01-3127.53. The Supreme Court of Ohio 

has summarized the relevant sections of the UCCJEA, R.C. 3127.18(C) and (D), as 

follows: “[I]f a child-custody proceeding has been started in another state, the court must 

immediately communicate with the court of the other state to resolve the emergency, 

protect the safety of the parties and the child, and set a period for the duration of the 

temporary order.” See State ex rel V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 

3 N.E.3d 1184, ¶ 13. 

{¶ 14} Moreover, R.C. 3127.09 mandates that “‘a record shall be made’ of this 

communication, except for matters concerning scheduling, calendars, and court records, 

and the parties shall be promptly informed of the communication and granted access to 

said record.” In re E.G., 8th Dist. Cuyahoga No. 98652, 2013-Ohio-495, ¶ 15, citing R.C. 

3127.09(C)-(D). “When two states communicate and ascertain the availability of a forum 
6.

to exercise jurisdiction, it fulfills the * * * UCCJEA.” In re S.C.R., 2018-Ohio-4063, 121 

N.E.3d 10, ¶ 45 (12th Dist.). 

{¶ 15} To illustrate we first point to Smith, where the Supreme Court of Ohio held 

that the court lacked jurisdiction because there was no evidence that (1) the court 

communicated with Arizona to resolve the child custody emergency, or that (2) the 

temporary order had a specified set period of duration. Smith at ¶ 22. V.K.B. obtained 

sole custody of her daughter in Ohio, and later relocated to Arizona. Id. at ¶ 2. After 

living in Arizona for approximately two years, V.K.B. visited family in Ohio and 

temporarily left her daughter in their care. Id. The child’s paternal grandfather 

subsequently filed and was awarded emergency, temporary custody in Ohio. Id. The 

order was in effect “until a full and fair hearing may be held.” Id. at ¶ 14. V.K.B. 

commenced a child-custody-enforcement action in Arizona during that time period and 

appealed the judgment in Ohio. Id. The Smith court reversed in favor of V.K.B. Id. at ¶ 

29. 

{¶ 16} To distinguish from Smith, we point to In re A.G.M., where the appellate 

court found sufficient communication occurred between the Ohio and Michigan courts. 

In re A.G.M., 12th Dist. Warren No. CA2011-09-095, 2012-Ohio-998, ¶ 23. Ohio 

communicated with Michigan and sent it a proposed journal entry to set forth the decision 

reached that Michigan will decline jurisdiction. Id. Michigan confirmed that position 

was accurate, and the confirmation was in the record. Id. The court held that this was the 
7.

type of communication the statute anticipated, and that the communication was properly 

recorded in compliance with R.C. 3127.09. Id. The Ohio court was held to have satisfied 

the UCCJEA’s procedural requirements. Id. at ¶ 29-30. 

{¶ 17} Applying the law as demonstrated in Smith and In re A.G.M., we find no 

evidence in this case that Ohio properly communicated with Michigan about jurisdiction, 

despite the fact that the trial court acknowledged that custody had been determined and 

that a petition for limited guardianship was filed in Michigan. The record reveals the 

magistrate, on February 8, 2018, and in open-court, specifically requested that appellant’s 

counsel “advise [the paternal grandmother] that when the guardianship hearing comes up 

[in Michigan], that she notify them that Ohio has exercised its emergency jurisdiction * * 

*.” We find this open-court request displays knowledge of Michigan’s jurisdiction and, 

further, considering there is no evidence showing Michigan was informed or notified, is 

insufficient to conclude the required communication occurred. Additionally, we note the 

court failed to set a period of duration in the June 27, 2018 temporary order. Smith at ¶ 

13, supra. 

{¶ 18} Accordingly, we find Ohio lacked jurisdiction to properly grant temporary 

custody of appellant’s children to appellee, and appellant’s sole assignment of error is 

well-taken. 

Conclusion 
8.

{¶ 19} The June 27, 2018 judgment of the Lucas County Court of Common Pleas, 

Juvenile Division, is vacated for lack of jurisdiction. Appellee is ordered to pay the costs 

of this appeal pursuant to App.R. 24. 

Judgment vacated and 

matter remanded. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Christine E. Mayle, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.