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Rowe v. Franklin

Citation. Rowe v. Franklin, 105 Ohio App. 3d 176, 663 N.E.2d 955, ., Hamilton County June 28, 1995)
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Brief Fact Summary.

Appellee father was granted custody based upon factors such as appellant mother’s frequent moves, work, attendance at law school, and conception of a second child with a man to whom she was not married. Mother appealed.

Synopsis of Rule of Law.

The best interests of the child standard requires an inquiry into the direct or probable effect of parental conduct on the physical, mental, emotional, and social development of the child, rather than a determination of which lifestyle choices made by a parent are correct in the judgment of the court.


Appellant Kimberly Rowe and appellee Donald Franklin were married in 1987, with the marriage producing a son. In 1991 appellant left the marital residence with the child and filed a complaint for divorce. In 1992 appellant moved to Kentucky for a short time without appellee’s knowledge. She moved to be closer to her part-time job as pilot for the U.S. Army, and she also attended law school. Appellee was an ironworker unemployed during that summer. The trial court order required neither parent remove the child from the state without court order or parental agreement. In 1993 appellant petitioned the court to modify the order to allow her to remove the child to Kentucky and establish his residence there. She had applied to take law school classes there and had become pregnant by a man who she was seeing that was married by separated from his wife. She enrolled her son in private school for the times she would attend class. Father filed an emergency motion for contempt a
nd for return of the child to Ohio. The trial court denied her motion, held appellee’s motion in abeyance, and allowed the child to remain with the mother until completion of a previously ordered custody investigation. The investigation resulted in two doctors finding both parents adequate, but ultimately recommended custody of the child be given to the father.


Did the court abuse its discretion in granting custody to the appellee?


The trial court abused its discretion by its reliance on an erroneous standard to justify the designation of the residential parent.
Concern for the best interests of the child does not permit a court to judge the rights and lifestyles of parents by nonstatutory codes of moral or social values. Rather, the focus should be a determination of the direct or probable effect of parental conduct on the physical, emotional, and social development of the child.

The error in the trial court’s analysis is apparent from its comparison of the mother’s living situation with the father’s. The record did not support the trial court’s findings that the home, the mother’s work or her school schedule required tremendous adjustment by the child. Additionally, the court questioned the mother’s stability based on her many moves and sudden and complete relationship with her new male companion and the resulting pregnancy. However, the many moves were caused by the father’s refusing upon the advice of counsel to move from the marital residence. In relation to the male companion, there was no evidence that mother’s relationship had an unfavorable effect on the child. The trial court’s ruling constituted a reproval of the mother test, rather than the best interests of the child standard required.


The Court found that the trial court judged the mother during the custody hearing rather than judging how the mother’s acts affect her child. This is not compatible with the best interests of the child standard.

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