September 24, 2013 at 9:00 A.M.
8th District Court of Appeals
One Lakeside Avenue, Cleveland Oh 44113
CLEVELAND, OHIO – The 8th District Court of Appeals will hear a request to vacate Cuyahoga County Domestic Relations Court Judge Judith Nicely’ s order awarding sole custody of a 9-year-old girl and 10-year-old boy to their father, Patrick J. O’Malley. Mr. O’Malley was charged, pled guilty and was sentenced to a fifteen month prison sentence after United States Department of Justice agents found child pornography and other extremely disturbing obscenities on his computers.
According to the September 29, 2008 Sentencing Memorandum:
“. . . As indicated above, the facts of this case warrant an upward variance and indeed, the maximum statutory term of five years. The depravity and deviance of the material sought by Defendant, especially with the focus of so many stories on sex between children and adults, children and relatives, and children and animals; all while Defendant was the custodial parent of similarly aged-children, significantly enhances the seriousness of Defendant’s conduct and mandates a five-year term of imprisonment.
For the reasons stated herein, it is respectfully requested that this Court sentence the Defendant a term of imprisonment of five years, followed by three years of supervised release. . .”
Instead of serving five years, Mr. O’Malley was released from prison in September 2009. He was put on probation for three years and he asked for full custody of his children.
The children’s mother, Vicki O’Malley, has no criminal record. She is physically and mentally healthy. She has stability within the community. Mrs. O’Malley has been the consistently competent parent. The children were happy, healthy and well-adjusted at home, in school and in their community while in their mother’s care.
Deciding which parent would have custody, Judge Nicely refused to consider the evidence found on Mr. O’Malley’s computer. Judge Nicely gave Mr. O’Malley sole physical and legal custody of his children — along with the option to decide whether or not the children will see their mother.
Linda Marie Sacks
Florida NOW Co-Chair Child Custody and Family Law Committee