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2 of 2 DOCUMENTS

ROSEMARIE P. CISEK, nka ROSEMARIE P. COOL, PLAINTIFF-APPELLANT, -VS- JOHN CISEK, nka JONI CHRISTIAN, DEFENDANT-APPELLEE.

NO. 80 C.A. 113

COURT OF APPEALS, SEVENTH APPELLATE DISTRICT, MAHONING COUNTY, OHIO

1982 Ohio App. LEXIS 13335

July 20, 1982

COUNSEL: [*1] Anthony N. Gemma, Youngstown, Ohio for Plaintiff-Appellant.

Paul E. Stevens, Youngstown, Ohio for Defendant-Ap-pellee.

JUDGES: Lynch, P. J., concurs.Donofrio, J., concurs.

OPINION BY: O'NEILL, J.

OPINION

OPINION

The parties were married on June 3, 1972. Shortly thereafter, appellee-husband adopted Dawn, the daughter of appellant who was born prior to the marriage. During the marriage the couple also had a child of their own, Kimberly. On February 23, 1976, the Mahoning County Common Pleas Court decreed a Dissolution of their Mar-riage, at which time appellant was awarded custody of the two minor children with ordinary visitation privileges granted to appellee.

Shortly thereafter, appellee underwent a complete change of sex and now presents himself as a woman. Ap-pellee had his name legally changed to Joni Christian. Appellee conducts himself as a woman at all times and circumstances, dresses and presents as a woman, and dates men. Appellee has become a public figure in the local community, and has appeared on several local tele-vision interview programs in connection with the promo-tion of his career as a vocalist.

Throughout and following these events appellee continued his [*2] visitation with the children until ap-pellant refused to allow further visitation. Following in-stitution of contempt proceedings by appellee, visitation was resumed under Court order.

On March 12, 1979, appellant filed a motion to ter-minate the previously ordered visitation. Following a number of hearings on this motion, the Common Pleas Court entered Judgment on September 15, 1980 denying appellant's motion. Appellant then filed her Notice of Appeal to this Court on October 14, 1980.

Counsel and this court agree that this is a case of first impression. Our approach must be guarded and ba-sic.

When a trial court comes on to consider a modifica-tion of a prior decree, his discretion is called into play.

"(B) The court may make any just and reasonable order or decree permitting any parent who is deprived of the care, custody, and control of the children to visit them at the time and under the conditions that the court directs." Section 3109.05 O.R.C.

The exercise of this discretion has the goal of the "best interest of the child." ( Civ. R. 75 and Walker v. Walker (1974), 40 Ohio App. 2d 6.) It would be suffi-cient to conclude that if there was presented to a court evidence that [*3] visitations with a parent would be contrary to the best interest of the child, the court must deny such visitations. To rule otherwise would amount to an unreasonable, arbitrary and unconscionable act by the court, an abuse of discretion.

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In the case at hand, the appellant testified and related some of the confusion which the children had experi-enced and related to her. (TR-39)

Dr. James Giannini, a medical doctor with a spe-cialty in psychiatry, was called by appellant. Dr. Gian-nini had examined both children. It was his opinion that the transsexualism of the appellee would have a socio-pathic affect on the child, Dawn, without appropriate in-tervention. (TR-12) Dr. Giannini also expressed the opin-ion that Kimberly would have difficulties in adjusting to her relationship with an individual, who though her fa-ther, is physically a woman. (TR-17) He felt that physi-cal contact should be stopped. (TR-20)

We are bothered by these negative medical opinions. We are further bothered by any substantial basis explain-ing the motivations of the father. He presented no evi-dence that he was compelled by some mental imbalance to opt for a change in his sex. Was his sex change simply an indulgence [*4] of some fantasy? Whatever the na-ture, the change certainly worked a burden upon the two minors. The duty of all the courts is to protect these two girls from whatever physical, mental, or social impact might occur. There is evidence that there might be men-

tal harm. Common sense dictates that there can be social harm.

It is our opinion that since the trial court had origi-nally ordered visitation, there has been a substantial change in circumstances. This substantial change was justification for a reconsideration of the original order. In light of the evidence presented, there is a strong con-clusion that absent adequate therapy, the two minor chil-dren are in harm's way.

We, therefore, vacate the judgment of the trial court and reverse the judgment for the reason that the appellant mother has produced sufficient evidence of substantial change in circumstances and, by medical testimony, mental and emotional trauma.

By this ruling, we do not permanently preclude visi-tation by the appellee. If and when by growth and matu-rity of the children and proper evidence presented by the appellee, and with a thorough investigation by the trial court with expert investigation and advice there [*5] may be a time when the trial court can order visitation by appellee, with a continuing plan protecting the best inter-ests of the two children.

Judgment reversed.