Background
S.D. and S.L. were in a relationship from 2018 to 2021 and had a child together born in 2019. S.L. had an extensive history of domestic violence, including a DV conviction in 2020, violations of protection orders, menacing by stalking charges, and carrying a concealed weapon charge — all related to S.D. S.L. was eventually sentenced to five years of imprisonment.
In 2024, S.D. petitioned for a domestic violence protection order (DVPO) and requested that the couple’s child be included as a protected party. The trial court granted the DVPO for S.D. but declined to include the child, noting that an active custody and visitation order existed in juvenile court and that limited testimony connected the child to the alleged domestic violence or menacing by stalking.
The Court’s Holding
The Sixth District affirmed, finding no abuse of discretion. The court analyzed the interplay between R.C. 3113.31 (which authorizes DVPOs) and existing juvenile court custody orders. While a court can issue a DVPO to protect a minor child, its authority is limited to temporary measures that do not conflict with or modify existing custody orders issued by the juvenile court.
The court found persuasive authority from the Seventh District’s decision in M.A.M., which addressed similar circumstances. The trial court had competent, credible evidence to support its finding that there was insufficient testimony linking the child to the domestic violence, particularly given S.L.’s incarceration at the time of the hearing. The court emphasized that the existence of the juvenile court custody/visitation order was a significant factor limiting the common pleas court’s authority to include the child in the DVPO.
Key Takeaways
- A trial court has discretion to exclude a child from a DVPO under R.C. 3113.31 when a custody/visitation order already exists in juvenile court, particularly when testimony connecting the child to the violence is limited.
- DVPOs cannot conflict with or modify existing custody orders from another court; practitioners seeking protection for children should consider filing in the court with custody jurisdiction.
- The incarceration of the respondent at the time of the hearing is a relevant factor in assessing whether there is an immediate and present danger to the child.
Why It Matters
This decision highlights a practical jurisdictional trap for Ohio family law practitioners. When a juvenile court already has a custody/visitation order in place, seeking to add a child to a DVPO in common pleas court may be futile. Counsel should consider filing for protective modifications directly in juvenile court instead. The decision also illustrates the evidentiary burden: petitioners must present specific testimony linking the child to the domestic violence, not just evidence of violence against the adult petitioner.