COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67884 : JEFFREY A. WRIGHT : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : PATRICIA C. WRIGHT : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 19, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division Common Pleas Court Case No. D-154759 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ROBERT J. VECCHIO, ESQ. TASSO E. PARIS,S ESQ. 720 Leader Building 55 Public Square, Ste. 1575 Cleveland, Ohio 44114 Cleveland, Ohio 44113 For Lucille Firstner: For Guardian Ad Litem: JAMES N. HARDING, ESQ. RACHEL M. HARLEY, ESQ. 653 Broadway Ave., Ste. 204 1220 W. 6th Street Bedford, Ohio 44146 Cleveland, Ohio 44113 - 2 - PATRICIA ANN BLACKMON, J.: Defendant-appellant, Patricia Wright, appeals the trial court's order awarding custody of her minor child, Benjamin, to his maternal grandmother. Patricia Wright assigns the following four errors for our review: I. THE TRIAL COURT ERRED IN ADOPTING THE REPORT AND RECOMMENDATION OF THE REFEREE, OVER THE DEFENDANT'S OBJECTION, AS THERE WAS A LACK OF CREDIBLE EVIDENCE AND INSUFFICIENT PROBATIVE EVIDENCE AT TIME OF HEARING RELIED UPON TO TERMINATE MATERNAL CUSTODY AND AWARD CUSTODY TO NON-PARENT. II. DEFENDANT MOTHER, PATRICIA WRIGHT, HAD INEFFECTIVE ASSISTANCE OF COUNSEL AT TIME OF TRIAL THEREBY DENYING HER DUE PROCESS OF LAW. III. THE TRIAL COURT ERRED, BY WAY OF ADOPTING THE REPORT AND RECOMMENDATION OF THE REFEREE, OVER DEFENDANT'S OBJECTION IN OVERRULING DEFENDANT'S MOTION TO REFER MATTER TO FAMILY CONCILIATION SERVICES. IV. THE TRIAL COURT ERRED IN FINDING APPELLANT IN CONTEMPT OF COURT AND/OR ABUSED ITS DISCRETION IN THE SPECIFIC PENALTIES IMPOSED. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Patricia Wright, defendant-appellant, and her former husband, Jeffrey Wright, plaintiff-appellee, dissolved their marriage on December 4, 1981. Custody of their 4-1/2 month old son, Benjamin, was awarded to Patricia Wright, and Jeffrey Wright was granted visitation. In May 1992, Patricia Wright filed several motions regarding child support. Citing an increase in living expenses, - 3 - she filed a motion to show cause along with motions for increased child support, payment of medical bills, tax exemption, and attorney's fees. In July 1992, Jeffrey Wright filed a motion to show cause along with a motion to modify visitation and a motion for attorney fees. Jeffrey Wright alleged Patricia Wright has failed to comply with the 1981 court ordered visitation schedule. In an October 1, 1992 journal entry, the court ordered a Family Conciliation Service evaluation and set a December 1, 1992 hearing date on Jeffrey Wright's motion to modify visitation. The parties executed an agreed journal entry increasing the amount of child support and establishing an interim visitation schedule. They also agreed that future medical bills would be paid by the parties in proportion to their income 70% by Jeffrey Wright and 30% by Patricia Wright. On December 1, 1992, the parties executed an agreement as to visitation. The court also ordered Patricia Wright to notify the court of any plans to relocate with the minor child, Benjamin. The court denied Patricia Wright's motion for tax exemption and dismissed her other motions. On February 9, 1993, Jeffrey Wright filed a motion to show cause and a motion for attorney's fees. He claimed Patricia Wright was not complying with the court's visitation order. Upon Jeffrey Wright's motion, the trial court sought a temporary restraining order prohibiting Patricia Wright from interfering with his - 4 - visitation or communication with Benjamin and from "disparaging, denigrating, or otherwise speaking ill of Jeffrey Wright." On May 25, 1993, the trial court granted Jeffrey Wright's motion for an ex parte order restraining Patricia Wright from permanently removing Benjamin from the county. The motion was filed in response to Patricia Wright's verbal communication to Jeffrey Wright of her intention to move to Arizona. Patricia Wright filed a motion to dissolve the restraining order and sought permission to relocate to Phoenix, Arizona with Benjamin. On July 12, 1993, Patricia's mother, Lucille Firstner, filed a motion to intervene in the action. Firstner stated she was opposed to the proposed move to Arizona due to Patricia Wright's "severe emotional difficulties, as well as financial difficulties." She also filed a motion to modify parental rights and custody. On September 13, 1993, Jeffrey Wright filed a motion to show cause and a motion for attorney fees alleging Patricia Wright's continued failure to abide by the terms of the visitation agreement. On October 26, 1993, Linda and William Schultz, Benjamin's maternal aunt and uncle, filed a motion to intervene in the action and a motion to modify parental rights and custody. On November 19, 1993, Lucille Firstner filed a motion for temporary custody of Benjamin. At the time the motion was filed, Patricia Wright was in Las Vegas. Benjamin remained in Ohio with her sister. Upon a finding that Patricia Wright had not forwarded any of the child support payments to her sister, the court granted Jeffrey Wright's motion to stay disbursement of child support. - 5 - On February 2, 1994, Lucille Firstner was granted temporary custody of Benjamin. On March 15, 1994, the guardian ad litem issued her report on the case. She recommended Benjamin continue to live with his maternal grandparents. On August 22, 1994, the trial court adopted the referee's recommendations over Patricia Wright's objections and awarded custody of Benjamin to Lucille Firstner. This appeal followed. The issue raised in Patricia Wright's first assignment of error is whether the evidence presented at the hearing was sufficient to support the trial court's decision to terminate maternal custody and award custody to Lucille Firstner. When deciding whether to terminate parental rights and responsibilities and allocate them to another, the court must first address what is in the best interest of the child. In determining what is in the best interest, the court shall consider all relevant factors including the wishes of the child's parents, the child's inter- action and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest, the child's adjustment to his home, school, and community, the mental and physical health of all persons involved in the situation, the parent more likely to honor and facilitate visitation and companionship rights approved by the court, whether the residential parent has continuously and willfully denied the other parent his or her right to visitation, and whether either parent has established a residence outside the state. R.C. 3109.04(F). - 6 - At the hearing in this case, the trial court heard evidence on all the above listed factors through the testimony of Lucille Firstner, Jeffrey Wright, Patricia Wright, and the guardian ad litem. Patricia Wright argues, in order for custody of a child to be awarded to a relative, both the child's mother and father must be found to be unfit. In support of her argument, she cites Boyer v. Boyer (1976), 46 Ohio St.2d 83. However, our review of Boyer is quite different. In the Boyer case, the court found that "neither of the [parents] has any rights that can be made to conflict with the welfare of the child, and that the order of the court should be made with a single reference to [the child's] best interests." Id. at 86. A year later, the Supreme Court stressed the importance of measuring the suitability of the parents in terms of the harmful effect of the custody on the child instead of in terms of a societal judgment of the parents' fitness. In Re Perales (1977), 52 Ohio St.2d 89, 98. In light of these decisions and the statutory emphasis on protecting the best interests of the child, we find that the trial court was not obligated to find Patricia and Jeffrey Wright to be unfit parents before awarding custody of Benjamin to his grandmother. We find that the evidence presented to the trial court was sufficient to support the court's decision. The evidence revealed that Benjamin had adjusted to life at his grandmother's house. He was participating in school and community activities including a local drama group. In addition, Lucille Firstner was making an - 7 - effort to preserve Benjamin's relationships with his father and his extended family. On the other hand, Patricia Wright's interactions with Benjamin were often emotionally abusive. In addition, she often refused to cooperate with Jeffrey Wright with respect to visitation and expressed hostility toward her family. Under the circumstances, we find that the trial court acted in Benjamin's best interests by allowing him to remain with Lucille Firstner. Patricia Wright's first assignment of error is without merit. In her second assignment of error, Patricia Wright argues that she was denied the effective assistance of counsel. In order to establish ineffective assistance of counsel, Patricia Wright must show that trial counsel's performance fell below an objective standard of reasonableness and that, but for counsel's errors, the outcome of the proceeding probably would have been different. Strickland v. Washington (1984), 466 U.S. 668, 693, 698. According to Patricia Wright, trial counsel improperly failed to object to various irrelevant and prejudicial evidence presented at the hearing and failed to present evidence on Patricia Wright's behalf. Specifically, she argues that trial counsel should have objected to testimony about financial support and services provided by Lucille Firstner, Lucille Firstner's statements about Benjamin's grades, and testimony about statements made by Benjamin's school counselor. Patricia Wright argues the evidence was irrelevant. We disagree. In a hearing on a motion to modify parental rights and custody, the objective is to ascertain what course of action would - 8 - best serve the interests of the child. In keeping with that objective, the trial court has the responsibility to evaluate all the information necessary to protect the child's interests. "[I]t is the duty of the judge to become [the child's] protector, and not only to listen to all the evidence produced by the parties calculated to throw light upon his path of duty, but also to inform himself from all other legitimate sources, the better to qualify himself to discharge understandingly the delicate trust." Boyer at 87. The referee was faced with the task of deciding whether Benjamin should be placed with his mother or his grandmother. Any information about each party's relationship with Benjamin and their ability to provide for him was relevant to the court's determination and trial counsel did not act improperly in failing to object to this evidence. Patricia Wright also argues the trial court erred in over- ruling her motion to refer the case to Family Conciliation Services. Wright cites R.C. 3109.04 which authorizes the court to order medical, psychological, and psychiatric examinations for the parties and their child. The statute's use of the word "may" indicates that an order for psychological or psychiatric examina- tions is discretionary, not mandatory. Consequently, we apply an abuse of discretion standard and limit our review to determining whether the trial court acted unreasonably, arbitrarily, or unconscionably and rendered a decision which lacked any reasonable basis and was clearly wrong. See Castlebrook Ltd. v. Dayton - 9 - Properties (1992), 78 Ohio App.3d 340,346; Scandinavian Health Spa v. Civil Rights Comm. (1990), 64 Ohio App.3d 480,488. The referee heard evidence that Patricia Wright harbored a continuing resentment of her former husband and she continually interfered with his efforts to visit Benjamin. Patricia Wright admitted she threatened suicide on various occasions in the past. Now she feels like committing suicide "once in a while". She also told the court that she did not have a full-time job in Las Vegas and was living temporarily with a friend. She admitted she did not know what Benjamin would do during the day while she went to work. This information was sufficient to sustain the court's finding that Benjamin should remain in Ohio in the custody of his grandparents. Consequently, the court's decision not to request psychological, medical, or psychiatric examinations was not an abuse of discretion. Patricia Wright's third assignment of error is without merit. Finally, Patricia Wright argues the trial court erred and abused its discretion by finding her in contempt of court. The court found Patricia Wright failed to comply with the trial court's prior visitation orders. Patricia Wright argues Jeffrey Wright did not seek to enforce the visitation agreement until she announced her intention to relocate. However, Jeffrey Wright testified he was unable to regularly visit Benjamin after June 1983 because he changed jobs and moved to Atlanta, Georgia. In August 1984, Jeffrey Wright moved to Washington state. According to Jeffrey - 10 - Wright, he attempted to visit Benjamin on several occasions and his efforts were sometimes refused. According to Jeffrey Wright, Patricia Wright violated the parties' December 1992 visitation schedule only a few days after it was established. When Jeffrey Wright arrived to pick Benjamin up for his scheduled visit, no one was home at Patricia Wright's residence. Under the circumstances, we find the trial court properly found Patricia Wright to be in contempt of court for failing to adhere to the schedule. We also reject Patricia Wright's argument that the sentence imposed on her for contempt of court was too severe. The court sentenced Patricia Wright to a thirty day suspended jail sentence and 100 hours of community service. The court allowed Wright to complete the community service in Nevada. The trial court's contempt order against Patricia Wright was a valid method for the court to enforce the visitation agreement. "A court may hold a party in contempt who fails or refuses to comply with its orders and may impose such penalties as are reasonable and just. R.C. 2705.02(A). A violation of visitation orders is punishable by contempt." Culberson v. Culberson (1978), 60 Ohio App.2d 304,306. See also Davis v. Davis (1988), 55 Ohio App.3d 196,199. (The court should enforce the child's right of visitation unless extraordinary circumstances preclude it). Consequently, we find the trial court did not abuse its discretion in finding her in contempt. Patricia Wright's fourth assignment of error is without merit. - 11 - Judgment affirmed. It is ordered that Appellee recover of Appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JAMES D. SWEENEY, P.J., CONCURS IN JUDGMENT ONLY. (SEE ATTACHED CONCURRING OPINION.) SARA J. HARPER, J., DISSENTS. (DISSENTING OPINION TO FOLLOW.) PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67884 JEFFREY A. WRIGHT : : : : PLAINTIFF-APPELLEE : C O N C U R R I N G : vs. : O P I N I O N : PATRICIA C. WRIGHT : : : : DEFENDANT-APPELLANT : DATE: OCTOBER 19, 1995 SWEENEY, JAMES D., P.J., CONCURRING IN JUDGMENT ONLY: With grave reservations I concur in judgment only. The reports of both the guardian ad litem and the referee are replete with psychological conclusions, yet neither a psychologist nor a psychiatrist testified at the hearing. In addition, and despite the fact that it is not mandated, the twelve-year-old child and his mother should have been referred to the conciliation department as requested. As a result there is no evaluation of either the mother or child, the two most important actors in this matter. The request for referral was denied on the ambiguous determination that the conciliation department was "forensic" not therapeutic. Although these deficits in the record raise serious questions re the credibility of the findings, I am compelled to affirm because the standard of review is one of abuse of discretion. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67884 PATRICIA C. WRIGHT : : Defendant-appellant : : D I S S E N T I N G -vs- : : O P I N I O N JEFFREY A. WRIGHT : : Plaintiff-appellee : : DATE: OCTOBER 19, 1995 SARA J. HARPER, J., DISSENTING: I respectfully dissent from the majority's conclusion in this case that the trial court properly awarded permanent custody of Benjamin to a nonparent. I, therefore, would have reversed the trial court's decision on this issue. The Supreme Court of Ohio, as early as 1855, recognized that custody determinations "should be made with a single reference to [the child's] best interests." Gishwiler v. Dodez (1855), 4 Ohio St. 615, 517. It later recognized, as well, that a "suitable" parent's right to the custody of his or her child "is paramount to that of all other persons" when deciding a dispute between a parent and a nonparent. Clark v. Bayer (1877), 32 Ohio St. 299, paragraph one of the syllabus. Notwithstanding the child's best interest as - 2 - addressed in Gishwiler, the Clark court appreciated a natural parent's common law right to raise and care for his or her own child. Clark, 310-313. The General Assembly nonetheless amended R.C. 3109.04 in 1974 to exclude consideration of a parent's suitability. The current statute reads in pertinent part at R.C. 3109.04(D)(2): "*** If the court finds, with respect to any child under eighteen years of age, that custody to neither parent is in the best interest of the child, it may commit the child to a relative of the child ***." (Emphasis added.) The "best interest of the child" test was seemingly the only one thereafter to be applied in determining custody in domestic relations cases under R.C. 3109.04. As stated by the Supreme Court of Ohio in Boyer v. Boyer (1976), 46 Ohio St.2d 83, paragraph one of the syllabus: In determining who shall have the care, custody, and control of a child under 18 years of age, even though the child's parents are not found to be unfit or unsuitable, the court may commit the child to a relative of the child where the court finds that custody of neither parent is in the best interest of the child. (R.C. 3109.04 construed.) (Emphasis added.) The Supreme Court, in In re Perales (1977), 52 Ohio St.2d 89, then confronted the issue of whether the "best interest of the child" test is the only test to be applied when an R.C. 2151.23(A)(2) custody action is brought in juvenile court. Noting the common law rights of parents as announced earlier in Clark, the court found that "suitable" parents have a "paramount" right to - 3 - custody of their minor children. Perales, 97. Therefore, a court must consider a parent's suitability when determining custody actions between a parent and nonparent pursuant to R.C. 2151.23(A)(2) because the statute does not contain the "best interest of the child" limiting language. Id., 96. The majority in the present case adopts the view that the trial court did not need to find that Patricia Wright was an unfit parent before awarding permanent custody of Benjamin to a nonparent. A review of cases of other jurisdictions, however, reveals that this is not a clear-cut standard. Some appellate courts have applied the "best interest of the child" test to R.C. 3109.04 custody determinations without regard to a parent's suitability, while others interpret Perales as modifying Boyer to include a suitability element. The mother and father, in In re Custody of Carpenter (1987), 41 Ohio App.3d 182, agreed to grant temporary custody of their son to the child's maternal grandparents. Less than a year later, the father sought to terminate the temporary custody. The matter was heard by a referee who applied R.C. 3109.04(B)(1), and concluded that "*** a consideration of all the facts still indicates that it is in [the child's] best interest to remain with [his grand- parents]." Id., 184. The father, in part, asserted on appeal that the trial court failed to apply the legal principle that parents have a paramount right to custody of their children. After referring to R.C. - 4 - 3109.04(B), and the heavy burden therein regarding a modification of a prior custody decree, the Carpenter court stated: On the other hand, as between a parent and a non-parent, a parent may be denied custody only if a preponderance of the evidence indicates abandonment, total inability to provide care or support, or that the parent is otherwise unsuitable -- that is, that an award of custody to the parent would be detrimental to the child. In re Perales, supra, at 98, 6 O.O.3d at 297, 369 N.E.2d at 1052. Where a parent is seeking to modify a prior award of custody to a non-parent, this requirement of parental preferences comes into potential conflict with the statutory burdens imposed upon the party seeking to change custody. We conclude, based upon our reading of In re Perales, supra, and Schoffner [v. Schoffner (1984), 19 Ohio App.3d 208], supra, that this apparent conflict may be resolved by holding that R.C. 3109.04(B) has no application where a parent is seeking to extinguish an award of temporary custody to a non-parent in order to re-establish custody of the child. The parent, being the natural custodian of the child, starts with the benefit of the preferential considerations mandated by In re Perales, supra, as a natural right. See id. at 96-97, 6 O.O.3d at 296-297, 369 N.E.2d at 1051, fn. 9. *** (Emphasis added and sic.) Carpenter, 185. The Carpenter court understood that the Supreme Court of Ohio distinguished R.C. 3109.04 and R.C. 2151.23(A)(2) custody disputes in Perales. Id., 186. Though Carpenter did not involve R.C. 3109.04(D)(2), the court nonetheless found that when a parent does not grant permanent custody of his or her child to a nonparent, merely temporary custody, the parent is entitled to the preferential considerations contained in Perales when seeking to terminate a nonparent's temporary custody of the child. Id., 186. In Truitt v. Truitt (1989), 65 Ohio App.3d 126, a mother was awarded custody of her two children following a divorce from the - 5 - children's father. Allegations subsequently surfaced regarding the father's sexual abuse of the children. The trial court ultimately awarded custody of the children to the Preble County Children's Services when the mother failed to comply with the trial court's order regarding grandparent visitation. Id., 128. The mother asserted on appeal that the trial court abused its discretion by changing custody of the children without first finding that she was an unsuitable parent. The appellate court stated as a basis principal, citing Perales, that a court may not award custody of a child to a nonparent "absent a finding that the custodial parent is unsuitable." Id., 130. It recognized that Perales involved a juvenile court custody determination. However, the facts before it, i.e., the transferring of custody from a parent to a nonparent, created a Perales type situation which required the trial court to find that the mother was unsuited to raise her children as well as a finding that it would be in the children's best interest to award custody to a nonparent. Id. The Court of Appeals of Ottawa County, in In re Whiting (1990), 70 Ohio App.3d 183, analyzed whether a parent relinquishes his or her paramount right to custody when the parent or parents consented to a change of custody to a nonparent and the change was effected by way of a judicially approved contractual agreement. The court appreciated the difficulty faced by other reviewing courts on this issue, stating: Essentially, in the context of a parent-nonparent custodial dispute, courts have attempted to formulate a - 6 - standard under which the best interest of the child is considered and, in most instances, the suitability or "fitness" of the parent is also a major consideration. [Citations omitted.] Nevertheless, this standard is applied only in situations involving an original award of custody. Masitto v. Masitto (1986), 22 Ohio St.3d 63, 22 OBR 81, 82, 488 N.E.2d 857, 859. Furthermore, in such situations, parents can be found to have forfeited their paramount right to the custody of their child through contract, abandonment or a total inability to care for and support the child. Masitto, supra, at 65-66, 22 OBR at 82-84, 488 N.E.2d at 859-861. The key in these kind of cases is ascertaining whether the parents have merely consented to a temporary custody of their minor child by a nonparent or have, under the specific circumstances, waived their permanent right to custody. Id. at 66, 22 OBR at 83, 488 N.E.2d at 860. [Citation omitted.] This distinction is important in a case where the natural parent has filed a motion to modify custody because of the suitability issue. If there has been an original award of custody or the parent has waived the paramount right to custody, the standard on a motion to modify is that found in R.C. 3109.04(C) and places a greater burden on the parent to prove that modification is warranted. Masitto, supra, at 65, 22 OBR at 82, 488 N.E.2d at 859; Carpenter, supra. If the award of custody to the nonparent was merely temporary and/or the parent has not waived her paramount right to custody, a parent receives preferential consideration and must be awarded custody absent a finding of unsuitability. Masitto supra, at 65, 22 OBR at 82, 488 N.E.2d at 859; Carpenter, supra, at 185, 534 N.E.2d at 1218. Id., 186-187. In In re Dunn (1992), 79 Ohio App.3d 268, a juvenile court obtained jurisdiction of a custody dispute pursuant to R.C. 1 "Neither statute, R.C. 3109.04 nor R.C. 2151.23, contains a provision requiring that preferential consideration be given a parent. However, subsequent to Perales, supra, which set forth a suitability test in actions brought under R.C. 2151.23, the courts have interpreted Perales in such a way as to impose a suitability determination in original awards to nonparents in cases arising under R.C. 3109.04. Carpenter, supra; Thrasher, supra; Van Hoose [v. Van Hoose (Apr. 19, 1990), Pike App. No. 433, unreported], supra." - 7 - 3109.06. The Court of Appeals of Auglaize County observed that R.C. 3109.06 required that the juvenile court follow R.C. 3109.04(D)(2) in allocating parental rights and responsibilities. The court then commented that the Supreme Court modified Boyer in Perales. Dunn, 270. The Dunn court recognized the distinction between Perales and Boyer, i.e., that Perales involved a custody dispute under R.C. 2151.23, instead of a dispute under R.C. 3109.04, but then found that other courts applied the Perales court's reasoning to cases decided under R.C. 3109.04. The cases cited were Thrasher v. Thrasher (1981), 3 Ohio App.3d 210 and In re Zeedyk (Nov. 30, 1988), Defiance App.No. 4-87-5, unreported. Based upon this line of cases, the Dunn court stated: "The Perales decision involved a dispute between a parent and a nonparent, and modified the construction of R.C. 3109.04 by combining the best- interest test and the prior-suitability test." Dunn, 271. The Court of Appeals of Lorain County revisited its earlier decision of Thrasher in Reynolds v. Goll (1992), 80 Ohio App.3d 494. Premised on the General Assembly's elimination of a suitability requirement from R.C. 3109.04, the court concluded that the "best interest" test is the only test to be considered in R.C. 3109.04 proceedings, a position adopted by the majority herein. However, even after the Lorain County Court of Appeals revisited its earlier decision, and ruled that the "best interest of the child" is the sole concern under R.C. 3109.04, another appellate court held differently in Miller v. Miller (1993), 86 Ohio App.3d - 8 - 623. In Miller, grandparents were awarded custody of their two grandchildren following the dissolution of the children's parents' marriage. The mother subsequently sought a change in custody, but the trial court denied her requests. Id., 625. The mother challenged the denial of her requests based upon Perales. The Miller court found that Perales is still good law in the state of Ohio, to wit: "*** a natural parent has the paramount right to custody of his or her child as against a non- parent." Id., 625. The court then distinguished the situations where the parent relinquishes custody through contract or by abandonment, or when the parent is totally unable to care for the child, thereby forfeiting the paramount right to custody. Only when these situations occur, does the "best interest of the child" test solely govern changes in custody under R.C. 3109.04(B). Id., 626. In the present case, the majority's reliance on Boyer and Perales to establish that the only test to be applied in this appeal is the "best interest" test is weak. The law is certainly unsettled in this regard considering the difference of opinion by the appellate courts of this state following the Supreme Court of Ohio's decision in Perales. What is apparent to me is that if a parent is granted original custody of his or her child, the burden of a nonparent to modify custody to him or her is a heavy one, and includes the necessity to show that the parent is unfit to care for the child. This is not a case where a parent is trying to regain - 9 - custody of a child when a nonparent has original custody of the child. Though Patricia Wright undoubtedly made mistakes as a parent to Benjamin, she should not be punished by permanently removing her child from her, thereby destroying her paramount right to custody. Since there is no such thing as a "perfect" parent, Conkel v. Conkel (1987), 31 Ohio App.3d 169, 171-172, and denying visitation cannot be used to modify custody, Culberson v. Culberson (1978), 60 Ohio App.2d 304, 306, I would have reversed the trial .