ELYRIA — The attorney for Lindsey Eberhardt once again filed a motion to dismiss the custody case against his client and also filed a motion for Judge Frank Janik to recuse himself from the matter.
Attorney Jonathan Rosenbaum filed the motions Monday in Lorain County Common Pleas Court on behalf of Eberhardt, according to court documents.
One motion contends the case should be dismissed because the court lacks jurisdiction in the case.
“This court again refuses to recognize, meaningfully consider, and/or apply the law regarding its jurisdictional limitations,” the motion said. “This is troubling in light of the recent court of appeals decision find the court to have acted without jurisdiction, to have violated Eberhardt’s fundamental rights as a parent and to have misconstrued its role in reviewing the matters that were properly before it.”
Last month, after Rosenbaum filed for additional relief through the 9th District Court of Appeals, the court vacated a judgment made by Janik on Oct. 14, 2016, because it “is based on an improper exercise of subject matter jurisdiction, and the orders contained therein exceed the authority of the trial court,” the appeals court’s decision said.
As a result of that decision, Janik last week withdrew an arrest warrant he had issued for Eberhardt after she failed to appear for a sentencing hearing before Janik. At the same time, Janik denied a motion made by Rosenbaum to dismiss the case.
In September, Eberhardt was found in contempt of court after she refused to follow a 2016 court order to allow Melva and Scott Sherwood visitation with Eberhardt’s two children on the second weekend of each month and permitting the Sherwoods to have makeup visitations for months missed. Melva Sherwood is the paternal grandmother of Eberhardt’s two children; her son, Andrew Weaver, died of a drug overdose in 2012.
On Sept. 21, Eberhardt told Janik she was refusing to follow the order and she was sentenced to 30 days in Lorain County Jail. On Sept. 27, the Ohio Supreme Court, in an order signed by Chief Justice Maureen O’Connor, ordered that Eberhardt be released from jail after Eberhardt’s attorney, Jonathan Rosenbaum, filed a writ of habeas corpus. Eberhardt served six days of her 30-day sentence.
On Nov. 28, the Ohio Supreme Court dismissed the habeas corpus and denied Eberhardt’s motion for bond and request for alternative writs, which allowed Janik once again to sentence Eberhardt to jail for contempt.
“This court illegally incarcerated Eberhardt for protecting her children from the very harm this court found Melva Sherwood to pose to the children,” the motion filed Monday said. “Rather than acknowledge its transgressions, this court appears to again fail to recognize it jurisdictional limitations in an apparent effort to vindicate its wrongful punishment of Eberhardt for disobeying its illegal orders by re-imposing the same illegal sanctions.”
In a court journal entry dated Jan. 2, Janik said the Sherwoods “filed a complaint and/or motion for legal custody or, in the alternative, for expanded grandparent visitation.”
“The court stayed the proceedings on said action due to the pending appeal,” the entry said. “On Dec. 28, 2018, the 9th District Court of Appeals issues its decision on the pending appeal. Therefore, the defendant’s motion to close the case is hereby denied.”
In his motion to dismiss, Rosenbaum argues “the court of appeals has not returned jurisdiction,” but instead “the court of appeals remanded the case for this court to carry this judgment into execution.”
The filing made Monday on Eberhardt’s behalf also asks Janik to recuse himself from the matter for multiple reasons including the belief Janik has “violated her rights as a citizen, parent and litigant,” the appearance of impartiality and “this conduct creates the appearance in Eberhardt’s mind and in the public’s eye that she cannot and will not receive fair and impartial treatment from this court.”
The filing is the latest chapter in a custody battle that has raged since 2010 between Eberhardt and the Sherwoods and has included an attorney, James Barilla, appointed by the court as guardian ad litem becoming romantically involved with Eberhardt, accusations of the grandmother examining the feces of the children and private investigators being hired to watch the other side, according to court documents.
As of Tuesday, Janik had not ruled on either motion, according to court records. A status hearing on the matter is scheduled for Jan. 18.