The case of Corey v. Corey, 2014-Ohio-3258 (2nd Dist. Greene County), is the type of legal decision guaranteed to confuse and even anger the general public.  The case involved a change of custody from mom to dad and the appointment of a Guardian Ad Litem – commonly shortened to “GAL” –  to recommend what arrangement would further the best interests of the children. The trial court changed custody of the four minor children to the dad and the mom appealed.

For the Best Interests of the Child Yet the Parent Cannot Challenge?

Mom argued that the GAL failed to perform certain minimum duties.  For those outside the realm of custody cases, a GAL, usually an attorney, represents the best interests of the minor children and is ordered to complete an investigation and written report prior to trial.  In the Corey case, the GAL report recommended custody to dad; the trial proceeded, and for unknown reasons, mom did not object to the admission of the report into evidence in the trial.  Mom later appealed the decision to the Court of Appeals on this and other factual grounds.

Because mother failed to object at trial, the appeals court reviewed the decision under the “plain error” doctrine.  This is a far higher hurdle for the party appealing the trial to meet on appeal.  Essentially, because of no objection at trial, mother had to show a manifest miscarriage of justice and exceptional circumstances.  The Court found that she had not.

Nevertheless, the Court noted that, even had mother objected, there would have been no error even under the less stringent evidentiary standards (de novo and abuse of discretion).  The fact that the GAL did not perform his minimal duties was not cause to exclude the report.  GALs are governed by Superintendent Rule 48(D) which requires, minimally, that the GAL observe the children with the mother and the father.  The GAL reviewed the school records but not any health care records.  The Court found that the report was still adequate as evidence of the children’s best interests.

Superintendent Rule 48(D) is what is called an “administrative directive.”  This means that it does not have the force of other laws, such as a state statute.  The Superintendent Rules are guidelines and do not create individual rights in individuals or procedure.  Essentially, as guidelines, the Superintendent Rules are advisory and individual parents or children cannot rely upon the rules to assert violations of their personal rights.

A Rule Without Teeth or Claws

Mom is no doubt baffled because she lost custody for reasons based heavily upon a GAL report where the children were never interviewed or even observed with the parents.  This omission, and the distinction between Superintendent Rules and statutory law, is the type of legal “technicality” that the public at large frowns upon.  The fact that the parents and children (for whom the Superintendent Rules are ultimately designed to benefit), cannot assert a violation, is a source of even deeper frustration to the public.

This decision is legally correct.  Is it fair?  As always, fairness depends upon who you ask.  The ultimate question is whether an interview of the children with mom and dad would have changed the recommendation in the GAL report.  After reading the factual errors brought by mom, I do not believe the interview would have changed much at all.  Unfortunately, there are just enough quirky distractions in this case to give Ohioans concern about the value of the GAL system and the predictability of “law.”