Opinion
No. C-880606
Decided August 9, 1989.
Courts — Probate court has no jurisdiction to determine custody of minor once it terminates guardianship of that minor — Juvenile court has exclusive jurisdiction once the guardianship is terminated to determine the custody of the child under R.C. 2151.23 (A)(2).
O.Jur 3d Family Law § 397. O.Jur 3d Guardian and Ward § 24.
The probate court has no jurisdiction to determine custody of a minor once it terminates the guardianship of that minor. Once the guardianship is terminated, the juvenile court then has exclusive jurisdiction to determine the custody of the child under R.C. 2151.23(A)(2).
APPEAL: Court of Appeals for Hamilton County.
Wood Lamping and Jeffrey M. Rollman, for appellant Michael J. Harmeyer.
Furer, Moskowitz Mezibov and Beth Silverman, for appellee Arlene Harrison.
This cause came on to be heard upon an appeal from the Probate Division of the Court of Common Pleas of Hamilton County.
Ryan James Harrison was born to Michael Harmeyer and Arlene Harrison while they were attending college. For financial reasons, Michael's father, James Harmeyer, was appointed guardian of Ryan. Although Michael and Arlene visited Ryan frequently, their relationship with each other failed. Michael moved home, but his parents continued to raise Ryan. Arlene moved to her parents' home in Delaware. She visited Ryan infrequently due to lack of money. Both Michael and Arlene are separately married, and now seek custody of Ryan.
James filed a motion in probate court for termination of the guardianship and restoration of custody. Arlene filed a similar motion. The probate court terminated the guardianship and granted custody of Ryan to Arlene. Michael appealed.
On appeal, Michael raises one assignment of error in which he contends that the trial court improperly awarded custody of Ryan to Arlene after it terminated the guardianship. We agree.
R.C. 2101.24(A)(4) provides the probate court with exclusive jurisdiction to appoint and remove guardians. The probate court also has "plenary power at law and in equity to dispose fully of any matter that is properly before the court, unless the power is expressly otherwise limited or denied by statute." R.C. 2101.24(C). The juvenile court, however, has exclusive jurisdiction under R.C. 2151.23(A)(2) to "determine the custody of any child not a ward of another court of this state."
The probate court clearly had jurisdiction to terminate the guardianship of Ryan under R.C. 2101.24(A)(4). The matter of the custody of Ryan, however, was not properly before the probate court. Once the guardianship was terminated, Ryan was no longer a ward of the probate court. The juvenile court then had exclusive jurisdiction to determine the custody of the child under R.C. 2151.23(A)(2). The probate court's plenary power could not, therefore, extend the court's jurisdiction to determine custody once the guardianship had been terminated. Cf. In re Zahoransky (1985), 22 Ohio App.3d 75, 22 OBR 173, 488 N.E.2d 944 (the probate court has jurisdiction to determine custody of the minor within the guardianship).
The probate court properly terminated the guardianship of Ryan, but had no authority to grant custody of Ryan to Arlene. We, therefore, affirm the judgment of the probate court with respect to the guardianship of Ryan, reverse the judgment with respect to the award of custody to Arlene, and remand this cause for the entry of an order by the probate court denying the custody requests for want of jurisdiction.
Judgment affirmed in part, reversed in part and cause remanded.
DOAN, P.J., KLUSMEIER and HILDEBRANDT, JJ., concur.