## Facts

- In July 2008, Gabrielle Smith obtained a civil protection order (CPO) against her boyfriend, Kevin Martin, under Ohio Rev. Code § 3113.31 based on domestic violence.
- When the CPO issued, Smith was pregnant with Martin’s child.
- Smith asked the trial court to include language in the CPO specifically protecting the unborn child as a separately designated protected person.
- The trial court refused to add the unborn child, reasoning that the CPO’s provisions barring Martin from contacting Smith and requiring him to stay away from her already protected the unborn baby during pregnancy.
- The trial court noted that, while the child remained in utero, Martin could not harm the baby without having contact with Smith.
- Smith appealed, arguing (1) the trial court erred under § 3113.31 by refusing to list the unborn child as a protected person and (2) the refusal denied the unborn child equal protection of the laws.

## Issues

1. Did the trial court err under Ohio Rev. Code § 3113.31 by refusing to designate Smith’s unborn child as a protected person in the CPO?
2. Did the trial court’s refusal to list the unborn child as a protected person deny the unborn child equal protection under the law?

## Decision

- The Court of Appeals of Ohio affirmed the trial court.
- The court concluded the CPO’s no-contact and stay-away provisions protecting Smith effectively protected the unborn child while in utero, so the trial court did not err in declining to list the unborn child separately.
- The court rejected the equal-protection argument because, under the circumstances, the unborn child was not deprived of effective protection by the order as issued.

## Legal Principles

- A court may deny a request to name an unborn child as a separately protected person in a domestic-violence CPO when the order’s restrictions on contacting or approaching the pregnant petitioner effectively protect the fetus during pregnancy.
- Ohio Rev. Code § 3113.31 ties CPO relief to “family or household member” status, and courts may avoid broad rulings on fetal status where the requested additional designation would not change the practical protection provided while the child is in utero.
- An equal-protection claim based on the omission of an unborn child from the list of protected persons fails when the operative CPO terms already provide effective safety for the unborn child during pregnancy.

## Conclusion

The appellate court affirmed the denial of Smith’s request to add her unborn child as a named protected person, holding that the CPO’s no-contact and stay-away terms protecting Smith necessarily protected the fetus while the child remained in utero and that the omission did not result in an equal-protection violation.


Smith v. Martin, 2009 WL 2028403 (2009)