IN THE COMMON PLEAS COURT OF
OTTAWA COUNTY, OHIO
Krista L. Seaman,
nka Krista L. Noble
Plaintiff,
v.
James F. Seaman,
Defendant.
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Case No. 97-DRA-036
Judge Paul C. Moon
Magistrate Bruce A Winters
MAGISTRATE’S
FINDINGS OF FACT &
CONCLUSIONS OF LAW; ORDER
*****
{¶1}
This cause comes before the Court upon Defendant’s Request for Modification of
Parental Rights and Responsibilities and Request for a Hearing, filed March 19, 2004, and
Defendant’s Request for Modification of Parental Rights and Responsibilities and Request for a
Hearing, filed April 26, 2004. Plaintiff did not respond to Defendant’s Motions. A hearing was
held on June 15, 2005. This Court, sua sponte, requested that the parties submit proposed
Findings of Fact and Conclusions of Law. Defendant and Plaintiff’s Proposed Findings of Fact
and Conclusions of Law were filed July 5, 2005.
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶2}
In his Motion of March 19, 2004, Defendant moves this Court “to modify its
previous order allocating parental rights and responsibilities of the parties two [] minor children
* * * designating both parents equal rights for the care, custody, and control of the children.”
Then, in his Motion of April 26, 2004, Defendant moved this Court “to modify it’s [sic] previous
order allocating parental rights and responsibilities of the parties two [] minor children * * *
designating the Defendant as the sole residential parent and legal custodian.”
{¶3}
This Court has reviewed the record, all pleadings, exhibits and the relevant case
law, including the parties’ Findings of Fact and Conclusions of Law. For the foregoing reasons,
this Court finds that it has jurisdiction, that Defendant has demonstrated that there was a change
of circumstances and that modification is necessary to serve the best interest of the children.
Accordingly, this Court adopts the proposed shared parenting plan submitted by the Defendant,
allocating “joint legal and physical custody” of the minor children to both Plaintiff and
Defendant as being in the best interests of the children. 1
I.
{¶4}
BACKGROUND
On February 14, 1997, Plaintiff filed a Complaint for Divorce.
Within the
Complaint, Plaintiff asserted that Defendant “is guilty of extreme cruelty and gross neglect of
duty; that the parties are incompatible; and that by reason thereof, she is entitled to divorce.”
The parties have two minor children, Zachary James Seaman 2 and Hunter Jacob Seaman. 3
1
Defendant’s Request for Modification of Parental Rights and Responsibilities and Request for a Hearing, filed
March 19, 2004
2
DOB: July 8, 1995.
3
DOB: October 1, 1996
2
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶5}
A Judgment Entry of Divorce was filed by this Court on July 24, 1997, granting
“a divorce from the defendant upon the grounds of incompatibility * * * and that the marriage
contract * * * is [] dissolved * * *.” The Judgment Entry designated Plaintiff as the “residential
parent and legal guardian,” allocating to her, the “parental care, custody and control of the minor
children.” 4
{¶6}
On March 19, 2004, Defendant moved this Court to “allocate parental rights and
responsibilities to both parents so they have equal rights in the upbringing and the care, custody
and control” of the two minor children. Defendant asked that this Court implement the proposed
shared parenting plan, asserting that that “There has been a significant change in circumstances
since the court considered and made an order regarding the allocation of parental rights.” 5
Defendant alleged: (1) that the two minor children “have expressed their interest in residing with
their father;” (2) that Plaintiff “has moved several times, and is planning to move again;” (3)
Plaintiff “has failed to communicate information concerning Zachary’s condition and changes in
medication due to ADHD [Attention Deficit Hyperactivity Disorder];” (4) Plaintiff has failed to
send Zachary’s ADHD medication with him during weekend visitations; (5) Plaintiff “has failed
to take the children to numerous Extracurricular [sic] activities the children are actively involved
in;” and (6) “Both children’s teachers have express their concerns about tardiness and incomplete
homework assignments.” 6
4
Judgment Entry of Divorce, filed July 24, 1997.
Defendant’s Request for Modification of Parental Rights and Responsibilities and Request for a Hearing, filed
March 19, 2004
6
Defendant’s Request for Modification of Parental Rights and Responsibilities and Request for a Hearing, filed
March 19, 2004, Affidavit of James F. Seaman.
5
3
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶7}
On April 26, 2004, however, Defendant asked to be designated “sole residential
parent and legal custodian” of the minor children. 7
{¶8}
During a mediation session on August 26, 2004, the parties reached a partial
agreement, establishing a shared parenting plan, which was implemented on a trial basis on
October 1, 2004. 8
II.
{¶9}
FINDINGS OF FACT
In making its findings of fact, this Court has considered the evidence presented,
including the testimony received from the witnesses, exhibits admitted during the trial and facts
agreed to by counsel. The considered evidence includes both direct and circumstantial. In
weighing the evidence, this Court has also considered the credibility of the witnesses. Where
differences or conflicts in the testimony arose, this Court resolved them and decided where the
actual truth is.
{¶10} Civ. R. 52 states that “* * * only those findings of fact and conclusions of law
made by the court shall form part of the record.” 9 And Civ. R. 52 rule permits a court, in its
discretion, to adopt the proposed findings of fact and conclusions of law. Although various
courts have recognized that “[a] trial court may adopt verbatim a party’s proposed findings of
fact and conclusions of law as its own if it has thoroughly read the document to ensure that it is
7
Defendant’s Request for Modification of Parental Rights and Responsibilities and Request for a Hearing, filed
April 26, 2004.
8
See Mediator’s Report, filed August 26, 2004.
9
Civ. R. 52 also states in relevant part: “When questions of fact are tried by the court without a jury, judgment may
be general for the prevailing party unless one of the parties in writing or orally in open court requests otherwise
before the journal entry of a final order * * * in which case, the court shall state in writing the conclusions of fact
found separately from the conclusions of law. * * *”
4
COMMON PLEAS COURT OF OTTAWA COUNTY
completely accurate in fact and law,” 10 this Court declines to do so here because this Court alone
is responsible for resolving the difficult question of whether there has been a change in
circumstances, whether modification of custody is in the best interests of the children, “gaug[ing]
the credibility, attitude, and demeanor of each witness.” 11 Further, this decision is compounded
by the involvement of two conscientious and loving parents.
{¶11} Accordingly, this Court finds:
{¶12} ● There has been a change of circumstances since the original divorce decree and
allocation of custody in 1997;
{¶13} ● Zachary has ADHD, but it is controlled with medication;
{¶14} ● Plaintiff has failed to communicate to Defendant all necessary information
regarding Zachary’s ADHD and medication schedule;
{¶15} ● Plaintiff has failed to take the children to a significant number of extracurricular
activities that the children were actively involved in;
{¶16} ● Plaintiff has failed to ensure that the children are in school on time and have
completed all homework assignments.
{¶17} ● Plaintiff has failed to establish a structured environment for the children;
{¶18} ● Plaintiff has failed to adequately discipline the children;
{¶19} ● Beginning October 1, 2004, the parties implemented a proposed parenting
schedule that was agreed upon during mediation;
10
Hinkston v. The Finance Company, 1st Dist. No C-980972, 2000 Ohio App. LEXIS 2010, *6, citing State v.
Combs (1994), 100 Ohio App. 3d 90, 110, 652 N.E.2d 205; Adkins v. Adkins (1988), 43 Ohio App. 3d 95, 539
5
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶20} ● The temporary shared parenting plan, which was agreed upon during mediation
and implemented on October 1, 2004, has been successful;
{¶21} ● Both parents wish to have the children reside with them;
{¶22} ● Both children have matured and have expressed their wish to spend additional
time with their father;
{¶23} ● Both children interact well together and with their parents. As well, they have a
close interrelationship with their parents and step-parents;
{¶24} ● Both children have adjusted well to their home, school and community under
the temporary shared parenting plan;
{¶25} ● Both children are doing well under the temporary shared parenting plan which
was adopted by the parties during mediation;
{¶26} ● Both parents have honored and facilitated visitation and companionship and
feel that the children need to have equal opportunities with them;
{¶27} ● Defendant has not failed to make child support;
{¶28} ● Neither parent has previously been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being an abused child or a neglected
child;
N.E.2d 686; In Re Spears, 4th Dist. No. CA 1718, 1996 Ohio App. LEXIS 4682.
11
Duer v. Moonshower, 3rd Dist. No. 15-03-15, 2004 Ohio 4025; 2004 Ohio App. LEXIS 3656.
6
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶29} ● Neither parent has continuously and willfully denied the other parent his or her
right to visitation in accordance with an order of the court or pursuant to the temporary shared
parenting agreement;
{¶30} ● Both parents have remarried and have established separate families;
{¶31} ● Both parents have established separate residences;
{¶32} ● Both parents are “fit;”
{¶33} ● Both parents reside in the same school district and have agreed that the children
will remain at Graytown Elmentary until they move to the Oak Harbor Middle School;
{¶34} ● The guardian ad litem has recommended that the temporary shared parenting
agreement be continued;
{¶35} ● The temporary shared parenting agreement is identical to the proposed shared
parenting plan before this Court.
III.
CONCLUSIONS OF LAW
{¶36} This Court finds that:
{¶37} ● See R.C. 3109.27.
{¶38} ● Failure to file an affidavit containing the information required by R.C.
3109.27(A), is a jurisdictional defect that may not be cured by subsequent action.
{¶39} ● The Ohio Supreme Court has held that R.C. 3109.27 creates a mandatory
jurisdictional requirement on any parent bringing an action for custody.
7
But it has also
COMMON PLEAS COURT OF OTTAWA COUNTY
recognized R.C. 3109.27 has been relaxed to allow amended pleading or subsequent filings to
include affidavit information.
{¶40} ● The purpose of R.C. 3109.27, which is a part of Ohio’s Uniform Child Custody
Jurisdiction Act, is to avoid jurisdictional competition and conflict with courts of other
jurisdictions and to facilitate timely resolution of custody matters and avoid conflict between
different jurisdictions.
{¶41} ● A mechanistic interpretation of R.C. 3109.27 would not only contravene the
clear intent of R.C. 3109.27, but could potentially allow a party to completely obstruct a custody
proceeding by willfully failing to file an affidavit.
{¶42} ● Where there is reasonable or substantial compliance with the requirements of
R.C. 3109.27(A), a trial court has jurisdiction.
{¶43} ● See R.C. 3109.04(E)(1)(a).
{¶44} ● R.C. 3109.04(E)(1)(a) provides that a trial court must not modify a prior
custody decree unless it finds the following: (1) there has been a change in circumstances of the
child; (2) a modification would be in the best interest of the child; and 3) the harm that would
result from the change is outweighed by the benefits that will result from the change. The
determination of whether a change in circumstances has occurred is a threshold finding that must
be determined prior to weighing the other factors.
{¶45} ● R.C. 3109.04 requires only a finding of a change in circumstances before a trial
court can determine the best interest of the child in considering a change of custody.
8
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶46} ● A change in circumstances must be substantiated, continuing, and most
importantly, have a materially adverse effect upon the child.
{¶47} ● A “change in circumstances” must be “substantiated” rather than “substantial.”
{¶48} ● The Ohio Supreme Court has held that there must be a change of circumstances
to warrant a change of custody, and the change must be a change of substance, not a slight or
inconsequential change.
{¶49} ● The Ohio Supreme Court has held that it is mindful that custody issues are
some of the most difficult and agonizing decisions a trial judge must make. Therefore, a trial
judge must have wide latitude in considering all the evidence before him or her.
{¶50} ● The Ohio Supreme Court has held that there may be much evident in the
parties’ demeanor and attitude that does not translate to the record well.
{¶51} ● See R.C. 3109.04(F)(1).
{¶52} ● A guardian ad litem’s role is to investigate a child’s situation and then to ask the
trial court to do what the guardian believes is in the child’s best interest.
{¶53} ● It is for the trial court to resolve disputes of fact and weigh the testimony and
credibility of the witnesses.
{¶54} ● No single factor is determinative of the best interest of a child; rather, the
determination should be made in light of the totality of the circumstances.
{¶55} ● The Ohio Supreme Court held that in proceedings involving the custody and
welfare of children, the power of the trial court to exercise discretion is peculiarly important
because the knowledge obtained through contact with and observation of the parties and through
independent investigation can not be conveyed to a reviewing court by the printed record.
9
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶56} ● The Ohio Supreme Court has held that the best interest of a child includes not
only the home environment, but also the involvement of both parents. Acknowledging that
today’s society recognizes the need for parenting by both parents, the Court held that each parent
should have full involvement in a child’s life, where possible and desired by the parent.
{¶57} ● The Ohio Supreme Court has held that the best interest of the child is materially
affected when one parent begins to cut out another parent, especially one that has been fully
involved in that child’s life.
IV.
ANALYSIS
{¶58} In the case sub judice, Defendant seeks to modify the original child custody order
which had designated Plaintiff as the sole residential parent and legal custodian of the minor
children.
Thus, the issues presented to this Court for consideration are: (A) whether the
Defendant has substantially complied with R.C. 3109.27, which requires that he file an affidavit
containing certain information necessary to establish whether this Court has jurisdiction, (B)
whether there has been a change in circumstances pursuant to R.C. 3109.04(E)(1)(a), permitting
this Court to consider a change of custody, (C) whether a change in custody is in the best
interests of the children pursuant to R.C. 3109.04(F)(1), and (D) whether the proposed shared
parenting plan or the motion designating Defendant as the sole residential parent and legal
custodian is in the best interests of the minor children. 12
12
Tyras v. Tyras, 9th Dist. No. 99CA007301, 2000 Ohio App. LEXIS 2516 (The lower court order was reversed
because it wrongly created a shared parenting plan instead of adopting one submitted by the parties. Pursuant to
R.C. 3109.04(A), in any divorce, legal separation, or annulment proceedings, the trial court is to allocate the parental
rights and responsibilities. If one of the parties moves for a shared parenting arrangement and files a shared
parenting plan, the court may adopt one of the submitted plans. R.C. 3109.04(D)(1)(a). Barring adoption of a
submitted plan, however, a court may only make suggestions for modifications to the submitted plans. R.C.
10
COMMON PLEAS COURT OF OTTAWA COUNTY
A.
Defendant has Substantially Complied with R.C. 3109.27
{¶59} At the outset, Plaintiff asserts that “Defendant failed and neglected to file an
affidavit containing the information required by R.C. 3109.27(A),” which is a jurisdictional
defect that may not be cured by subsequent action. 13 In Pasqualone v. Pasqualone, 14 the Ohio
Supreme Court held that filing of an affidavit containing the information required by R.C.
3109.27, was a “mandatory jurisdictional requirement,” holding “The requirement * * * that a
parent bringing an action for custody inform the court at the outset of the proceedings of any
knowledge he has of custody proceedings pending in other jurisdictions is a mandatory
jurisdictional requirement of such an action.”
{¶60} But 14 years later in In re Complaint for Writ of Habeas Corpus for Goeller, 15 the
Ohio Supreme Court held that “[d]espite this language * * * it is well settled that “the
requirement that an affidavit be filed in a party’s first pleading [under R.C. 3109.27] has been
relaxed to allow amended pleading or subsequent filings to include the affidavit information.” 16
The Court acknowledged that it had “implicitly recognized this in In re Palmer, by holding that a
3109.04(D)(1)(a)(ii). A court may not create and adopt its own shared parenting plan. McClain v. McClain (1993),
87 Ohio App. 3d 856, 857, 623 N.E.2d 242. If a satisfactory plan is not filed with the court for adoption, the court is
not to adopt any plan. McClain, citing R.C. 3109.04(D)(1)(b). See In re Foster, 12th Dist. No. CA99-09-116, 2000
Ohio App. LEXIS 936 (Custody order was vacated and remanded, since neither party filed a proposed shared
parenting plan, the trial court was precluded from entering a "shared parenting" arrangement concerning the child's
custody); Yoel v. Yoel, 11th Dist. No. 98-L-264, 2000 Ohio App. LEXIS 2045, Appeal after remand at, Remanded by
Yoel v. Yoel, 2004 Ohio 6174, 2004 Ohio App. LEXIS 5650 (Shared parenting plan order was reversed, as trial court
failed to make findings of fact and conclusions of law and plan adopted was different from plan agreed upon by
parties in divorce settlement hearings).
13
Plaintiff’s Proposed Findings of Fact and Conclusions of Law, at 2.
14
Pasqualone v. Pasqualone (1980), 63 Ohio St.2d 96, 406 N.E.2d 1121, paragraph one of the syllabus.
15
In re Complaint for Writ of Habeas Corpus for Goeller (2004), 103 Ohio St.3d 427, 2004 Ohio 5579, 816 N.E.2d
594, 2004 Ohio LEXIS 2597.
16
In re Porter (1996), 113 Ohio App.3d 580, 584, 681 N.E.2d 954. Accord Ney v. Ney, 8th Dist. No. 81546, 2003
Ohio 1349, 2003 Ohio App. LEXIS 1288; Wysong v. Wysong, 12th Dist. No. CA2001-06-011, 2002 Ohio 562, 2002
Ohio App. LEXIS 511; Rose v. Spjut, 4th Dist. No. 95CA6, 1996 Ohio App. LEXIS 2200; Boyer v. Boyer, 5th Dist.
No. 94 CA 53, 1994 Ohio App. LEXIS 5934; May v. May, 9th Dist. No. 2016, 1992 Ohio App. LEXIS 54; Cook v.
Marion Cty. Court of Common Pleas (1986), 28 Ohio App.3d 82, 502 N.E.2d 245, syllabus.
11
COMMON PLEAS COURT OF OTTAWA COUNTY
‘mechanistic interpretation of R.C. 3109.27 * * * would not only contravene the clear intent of
R.C. 3109.27 but could potentially render the custody statutes of this state a nullity.’” 17 And in
In re Palmer, 18 the Court held that such an interpretation of Pasqualone, would not further the
purpose of the act “to avoid jurisdictional competition and conflict with courts of other
jurisdictions.”
{¶61} The Seventh Appellate Court in In re Halstead, 19 reasoned that the Ohio Supreme
Court came to this conclusion in In re Palmer, because “R.C. 3109.27 is a part of Ohio’s
Uniform Child Custody Jurisdiction Act and that Act’s purpose is ‘to avoid jurisdictional
competition and conflict with courts of other jurisdictions and to facilitate the speedy and
efficacious resolution of custody matters so the child or children in question will not be caught in
a judicial tug of war between different jurisdictions.’” 20
{¶62} As the Halstead Court recognized, “mechanical application of R.C. 3109.27
could allow a party to completely obstruct a custody proceeding by willfully failing to file an
affidavit.” 21 In Rose v. Spjut, 22 the Fourth Appellate Court stated, “All that is required is
reasonable compliance with the statute,” emphasizing that “the requirement as to when the
17
In re Complaint for Writ of Habeas Corpus for Goeller (2004), 103 Ohio St.3d 427, 2004 Ohio 5579, 816 N.E.2d
594, 2004 Ohio LEXIS 2597, quoting In re Palmer (1984), 12 Ohio St.3d at 196, 465 N.E.2d 1312.
18
In re Palmer (1984), 12 Ohio St.3d at 196, 465 N.E.2d 1312.
19
In re Halstead, 7th Dist. No. 04 CO 37, 2005 Ohio 403, 2005 Ohio App. LEXIS 902.
20
In re Halstead, 7th Dist. No. 04 CO 37, 2005 Ohio 403, 2005 Ohio App. LEXIS 902, quoting In re Palmer (1984),
12 Ohio St.3d at 196, 465 N.E.2d 1312, citing Uniform Child Custody Jurisdiction Act (1979), 9 U.L.A. 116.
21
In re Halstead, 7th Dist. No. 04 CO 37, 2005 Ohio 403, 2005 Ohio App. LEXIS 902. See In re Palmer (1984), 12
Ohio St.3d at 196, 465 N.E.2d 1312.
22
Rose v. Spjut, 4th Dist. No. 95CA6, 1996 Ohio App. LEXIS 2200. See State ex rel. Cook v. Court of Common
Pleas (1986), 28 Ohio App.3d 82, 84, 502 N.E.2d 245.
12
COMMON PLEAS COURT OF OTTAWA COUNTY
affidavit is filed is directory, not mandatory.” 23 And the Court in Halstead concluded that to
hold otherwise would not serve the best interests of the minor children. 24
{¶63} Further, the Sixth Appellate Court in Dorski v. Dorski, 25 held that where “there
was substantial compliance with the requirements of R.C. 3109.27(A), * * * the trial court had
jurisdiction.” Defendant asserts that his motions were filed in accordance with the Local Rules
and that the required UCCJA documentation filed on June 21, 2005, cured any defect. In the
case sub judice, all relevant information required by R.C. 3109.27(A) was before the Court. 26
B.
Defendant has Demonstrated a Change in Circumstances Pursuant to R.C.
3109.04(E)(1)(a)
{¶64} This Court then turns to Defendant’s motion to modify the custody order, by
adopting the shared parenting plan, and Defendant’s later motion to “designating the Defendant
as the sole residential parent and legal custodian.” 27 Pursuant to R.C. 3109.04(E)(1)(a), “The
court shall not modify a prior decree allocating parental rights and responsibilities for the care of
children unless it finds, based on facts that have arisen since the prior decree or that were
unknown to the court at the time of the prior decree, that a change has occurred in the
circumstances of the child, [or] the child's residential parent, * * * and that the modification is
necessary to serve the best interest of the child. In applying these standards, the court shall retain
23
See State ex rel. Cook v. Court of Common Pleas (1986), 28 Ohio App.3d 82, 84, 502 N.E.2d 245.
See In re Halstead, 7th Dist. No. 04 CO 37, 2005 Ohio 403, 2005 Ohio App. LEXIS 902; In re Palmer (1984), 12
Ohio St.3d at 196, 465 N.E.2d 1312.
25
Dorski v. Dorski, 6th Dist. No. 93OT008, 1993 Ohio App. LEXIS 4471.
26
See Dorski v. Dorski, 6th Dist. No. 93OT008, 1993 Ohio App. LEXIS 4471 (“All relevant information concerning
prior and current residences of the children, with whom they have resided and other information required by R.C.
3109.27(A) was before the trial court.”)
24
13
COMMON PLEAS COURT OF OTTAWA COUNTY
the residential parent designated by the prior decree * * * unless a modification is in the best
interest of the child and one of the following applies:
{¶65} “(i) The residential parent agrees to a change in the residential parent * * *
{¶66} “(ii) The child, with the consent of the residential parent * * * has been integrated
into the family of the person seeking to become the residential parent * * *
{¶67} “(iii) The harm likely to be caused by a change of environment is outweighed by
the advantages of the change of environment to the child.”
{¶68} In the case sub judice, Defendant argues that modification is in the best interests
of the children because “The harm likely to be caused by a change of environment is outweighed
by the advantages of the change of environment to the child.” 28
In Wyss v. Wyss, 29 Tenth
District Appellate Court, stated: “‘The changed conditions, we stress, must be substantiated,
continuing, and have a materially adverse effect upon the child. The latter is the paramount
issue.’” 30
As such, the Wyss court required the change to be “substantiated” rather than
“substantial.” 31 Concurring, the Ohio Supreme Court in Davis v. Flickinger, 32 held: “Clearly,
there must be a change of circumstances to warrant a change of custody, and the change must be
a change of substance, not a slight or inconsequential change.” The Court in Davis also stated:
“In determining whether a ‘change’ has occurred, we are mindful that custody issues are some of
the most difficult and agonizing decisions a trial judge must make. Therefore, a trial judge must
27
Defendant’s Request for Modification of Parental Rights and Responsibilities and Request for a Hearing, filed
April 26, 2004.
28
R.C. 3109.04(E)(1)(a)(iii).
29
Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 483, 445 N.E.2d 1153, 1157.
30
Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 483, 445 N.E.2d 1153, 1157, quoting Wedren v. Wedren, 10th Dist.
No. 74AP-103, 1974 Ohio App. LEXIS 3712.
31
Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 483, 445 N.E.2d 1153, 1157.
32
Davis v. Flickinger (1996), 77 Ohio St.3d 415, 417-418, 1997 Ohio 260, 674 N.E.2d 1159 (Emphasis in original).
14
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have wide latitude in considering all the evidence before him or her * * *.” 33 As well, “This is
even more critical in a child custody case, where there may be much evident in the parties’
demeanor and attitude that does not translate to the record well.” 34
{¶69} Turning to the facts of this case, the record reflects that a hearing was held on this
matter. There is no doubt that the children were well cared for in each home and that both
parents provided a loving, nurturing environment. This Court fully recognizes the contributions
made by the mother as well as the father. But the best interests of the children encompass not
only the home environment, but also the ability of the parents to meet each child’s mental, moral
or emotional needs.
{¶70} Plaintiff contends that there was absolutely no evidence brought out to show that
anything she was doing was harmful to the minor children’s physical, mental, moral or emotional
development. The testimony offered at trial showed, however, that prior to the implementation
of the temporary shared parenting plan, the environment of the minor children was not conducive
to their physical health or their mental, moral or emotional development.
{¶71} The evidence displayed at trial showed that the children were not doing well in
school and that the father can offer a better educational environment. The evidence reflected that
Plaintiff failed to take the children to numerous extracurricular activities in which they were
involved, and that their teachers expressed concern about tardiness and incomplete homework
assignments. As well, there is evidence that the Plaintiff had difficulty addressing Zachary’s
ADHD or conveying to Defendant any changes in Zachary’s medication (for ADHD). Finally,
33
34
Davis v. Flickinger (1996), 77 Ohio St.3d 415, 418, 1997 Ohio 260, 674 N.E.2d 1159.
Davis v. Flickinger (1996), 77 Ohio St.3d 415, 418, 1997 Ohio 260, 674 N.E.2d 1159.
15
COMMON PLEAS COURT OF OTTAWA COUNTY
during an In Chambers hearing, the children expressed their desire to have additional time with
their father. 35
{¶72} Thus, the issue before this Court is whether the changed conditions, following the
original allocation of custody, were substantiated, continuing, and had a materially adverse effect
upon the child. As the Wyss Court held, the paramount issue is whether original allocation of
custody adversely affected the children, and whether it was material. 36 This Court finds that the
change of circumstances warrants a change of custody, and that this change of circumstances
included the problems the children were having in school, the lack of participation in
extracurricular activities, the lack of information concerning Zachary’s medication, and the
children’s desire to have additional time with their father, all of which have had a material effect
upon the minor children. The absence of such problems, and the improvement of the children’s
mental and emotional well-being, following the implementation of the agreed upon shared
parenting plan on October 1, 2004, demonstrates the deficiencies of this Court’s original
allocation of custody.
{¶73} There is evidence showing that the original allocation of custody had an adverse
affect on the mental development of the minor children, particularly that of Zachary, who suffers
from ADHD, a disorder unknown to this Court at the time of the original allocation of child
custody. Moreover, there was evidence demonstrating that under the original allocation of
custody, the mental, moral or emotional development of the children was at risk, and that the
harm was likely to be outweighed by the advantages of the change of environment to the
children; and therefore a change of custody is in the children’s best interests.
35
See Order filed April 25, 2005.
16
COMMON PLEAS COURT OF OTTAWA COUNTY
C.
A Change in Custody is in the Best Interests of the Minor Children
{¶74} Further, in determining the best interest of the child in awarding custody, the
court must consider all relevant factors, including those set forth in R.C. 3109.04(F)(1), which
reads as follows: In determining the best interest of a child * * *, the court shall consider all
relevant factors, including, but not limited to: (a) The wishes of the child’s parents regarding his
care; (b) If the court has interviewed the child in chambers * * *, the wishes and concerns of the
child, as expressed to the court; (c) The child’s interaction and inter relationship with his parents,
siblings, and any other person who may significantly affect the child’s best interest; (d) The
child’s adjustment to his home, school, and community; (e) The mental and physical health of all
persons involved in the situation; (f) The parent more likely to honor and facilitate visitation and
companionship rights approved by the court; (g) Whether either parent has failed to make all
child support payments, * * *; (h) Whether either parent previously has been convicted of or
pleaded guilty to any criminal offense involving any act that resulted in a child being an abused
child or a neglected child * * *; (i) Whether the residential parent or one of the parents subject to
a shared parenting decree has continuously and willfully denied the other parent his or her right
to visitation in accordance with an order of the court; (j) Whether either parent has established a
residence, or is planning to establish a residence, outside this state.
{¶75} In the case sub judice, this Court has considered all of the relevant factors. Of
particular significance to this Court is the mental, emotional and physical health of both children,
as well as that of the parties. Pursuant to R.C. 3109.04(F)(1)(e), this Court must consider the
mental and physical health of all persons involved. Here, the Court is cognizant of its Order of
36
Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 483, 445 N.E.2d 1153, 1157, quoting Wedren v. Wedren, 10th Dist.
No. 74AP-103, 1974 Ohio App. LEXIS 3712.
17
COMMON PLEAS COURT OF OTTAWA COUNTY
April 25, 2005, in which it directed the parties and the minor children to attend counseling,
noting “each of the minor children have exhibited symptoms whereby counseling is deemed to
be an appropriate remedy.” Directing that “counseling be initiated between Plaintiff, Defendant
and the minor children with the purpose of improving all of the parties’ interaction and
communication with one another,” the Court emphasized that it is in “the best interests of the
children” and it is “specifically determined that the health, welfare and well-being of each of the
children requires this counseling.” 37
{¶76} This Court has also considered the change in circumstances created by the
maturing of the children pursuant to R.C. 3109.04(F)(1)(b). Although age alone is not sufficient,
even a small change in age which requires adjustments to previous visitation or custody
arrangements when combined with other factors may constitute a sufficient change of
circumstances to warrant a change in custody. 38
{¶77} In Perz v. Perz, 39 the Sixth Appellate Court noted “that a child’s attainment of
‘sufficient reasoning ability’ would be a substantial change in a material circumstance such as
would justify a further inquiry into the best interest of the child,” but concluded that “the
legislature intended * * a reasonable passage of time.” Here, as in Perz, the children progressed
from infancy to a distinct and considerably different phase of their development. The children
have changed in physical, mental and moral development and the “passage of time is a sufficient
change of circumstances to warrant a further inquiry into the best interest of the children.” 40
Thus, this Court will consider the wishes of the children. Here, the children have expressed a
37
Order of April 25, 2005.
See Davis v. Flickinger (1996), 77 Ohio St.3d 415, 1997 Ohio 260, 674 N.E.2d 1159; Perz v. Perz (1993), 85
Ohio App.3d 374, 619 N.E.2d 1094.
39
Perz v. Perz (1993), 85 Ohio App.3d 374, 619 N.E.2d 1094.
40
Perz v. Perz (1993), 85 Ohio App.3d 374, 619 N.E.2d 1094.
38
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COMMON PLEAS COURT OF OTTAWA COUNTY
desire to spend more time with their father, a request that was articulated and supported by
“sufficient reasoning ability.” 41 Moreover, the desire of the children to spend more time with
their father cannot simply be met only through changes in visitation because of the need for
greater involvement of the father in the children’s lives, in school, in other activities, and in the
treatment of Zachary’s ADHD, all of which would require that the father be given an equal voice
in matters involving the children.
{¶78} As well, this Court acknowledges the recommendation of Mr. Frederick, the
guardian ad litem, that “the shared parenting plan currently used by the parties be adopted by the
Court and that the parties enroll in family counseling with the goal of working on the issues that
arise in implementing the plan.” 42 A guardian ad litem’s role is to investigate a child’s situation
and then to ask the trial court to do what the guardian believes is in the child’s best interest. 43
While the guardian ad litem’s recommendation was based on several factors, his report
specifically noted that “consistency between the households and a plan of co-parenting is
required.” 44 The guardian ad litem also emphasized that, in his discussions with mental health
professionals, he was “advised * * * that there is no reason that a shared parenting plan cannot
work simply because a child has ADD.” 45
{¶79} When considering these factual issues, the Court recognizes that “it is for the trial
court to resolve disputes of fact and weigh the testimony and credibility of the witnesses.” 46 As
well, the record reveals that evidence was presented on almost every factor found in R.C.
41
Perz v. Perz (1993), 85 Ohio App.3d 374, 619 N.E.2d 1094.
Guardian ad litem Report, at 3.
43
In re Baby Girl Baxter (1985), 17 Ohio St. 3d 229, 479 N.E.2d 257. Bates v. Bates, 11th Dist. No. 2000-A-0058,
2001 Ohio 8743.
44
Guardian ad litem Report, at 3.
45
Guardian ad litem Report, at 2-3.
42
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COMMON PLEAS COURT OF OTTAWA COUNTY
3109.04(F) for consideration. 47 But “no single factor is determinative of the best interest of a
child; rather, the determination should be made in light of the totality of the circumstances.” 48
{¶80} Moreover, In Trickey v. Trickey, 49 the Ohio Supreme Court emphasized that “In
proceedings involving the custody and welfare of children the power of the trial court to exercise
discretion is peculiarly important. The knowledge obtained through contact with and observation
of the parties and through independent investigation can not be conveyed to a reviewing court by
the printed record.”
{¶81} Based on the application of the relevant factors set forth in R.C. 3109.04(F)(1),
this Court finds that a change in custody would be in the best interest of the minor children
because of the demonstrated deficiencies of this Court’s original allocation of custody.
D.
The Proposed Shared Parenting Plan is in the Best Interests of the Minor
Children
{¶82} Having determined that a change of custody to be in the best interests of the
children, this Court must now consider which of the two options before it is in the best interests
of the children. In addressing the difficulties in making a change of custody, the Ohio Supreme
Court held in Davis v. Flickinger, 50 that “the best interest of a child encompasses not only the
home environment, but also the involvement of both parents. In today’s society that fully admits
46
Bechtol v. Bechtol, (1990), 49 Ohio St. 3d 21, 23. See Pasqualone v. Pasqualone (1980), 63 Ohio St. 2d 96, 406
N.E. 2d 1121.
47
Kauble v. Pfeiffer, 3rd Dist. No. 9-03-06, 2003 Ohio 6988, at P17, citing Mollica v. Mollica, 9th Dist. No.
02CA0079-M, 2003 Ohio 3921, at P11 (A reviewing court must presume that the trial court considered all relevant
factors unless the record affirmatively demonstrates to the contrary).
48
Suess v. Suess, 12th Dist. Nos. CA96-01-006, CA96-01-008, 1996 Ohio App. LEXIS 4400.
49
Trickey v. Trickey (1952), 158 Ohio St. 9, 13-14, 47 O.O. 481, 483, 106 N.E. 2d 772, 774.
50
Davis v. Flickinger (1996), 77 Ohio St.3d 415, 1997 Ohio 260, 674 N.E.2d 1159.
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COMMON PLEAS COURT OF OTTAWA COUNTY
the need for parenting by both parents, each parent should have full involvement in a child’s life,
where possible and desired by the parent.” This Court recognizes that the children have two
loving parents who strive to provide a loving, nurturing environment. But here, the children did
not ask to reside only with their father. Instead, they asked to have more time with their father.
And the report of the guardian ad litem recommended that “the shared parenting plan currently
being used by the parties be adopted by the Court and that the parties enroll in family
counseling.” 51 This Court agrees, but mindful of Plaintiff’s complaint to the guardian ad litem,
that she was concerned “with the children’s behavior upon returning to her home after visitation
with their father,” emphasizes that “When one parent begins to cut out another parent, especially
one that has been fully involved in that child’s life, the best interest of the child is materially
affected.” As such, this Court will not condone any action by either party that is detrimental to
the children.
V.
CONCLUSION
{¶83} Having determined that this Court has jurisdiction pursuant to R.C. 3019.27(A),
this Court considered the factors in R.C. 3109.04(E)(1)(a) to find that a change has occurred in
the circumstances of the child and that the modification is necessary to serve the best interests of
the children. Having considered the factors enumerated in R.C. 3109.04(F)(1), this Court finds it
to be in the best interests of the children that custody be shared equally between the Plaintiff and
the Defendant. In so holding, this Court finds that awarding sole custody of the children to the
Defendant would not be in the best interests of the children. As well, this Court finds counseling
to be in the best interests of the children and its Order of April 25, 2005, shall continue until
51
Guardian ad litem Report, at 3.
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COMMON PLEAS COURT OF OTTAWA COUNTY
otherwise ordered. Finally, this Court shall retain jurisdiction over the children, and this Order is
subject to court review upon petition of either party. Accordingly,
{¶84} IT IS ORDERED, ADJUDGED, and DECREED that the legal and physical
custody of the minor children are allocated equally to Plaintiff and Defendant;
{¶85} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that the shared
parenting plan submitted to this Court by the Defendant is adopted and incorporated by this
Order as the shared parenting plan of this Court and shall be implemented immediately;
{¶86} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that counseling for
the Plaintiff, Defendant and the minor children is in the best interests of the children, and this
Court’s previous Order of April 25, 2005, is continued;
{¶87} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that this Court shall
retain jurisdiction over the children and this Order is subject to court review upon petition of
either party.
{¶88} Clerk of Courts shall send copies of this Decision and Order to all parties of
record or their counsel by regular U.S. Mail.
SEPTEMBER 26, 2005
BRUCE A. WINTERS, MAGISTRATE
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COMMON PLEAS COURT OF OTTAWA COUNTY
CERTIFICATE OF SERVICE
A copy of the foregoing “Decision and Order” was delivered by regular Mail, this 26th day of
September, 2005, to the following:
Alan R. McKean
McKean & McKean
161 West Water Street
Oak Harbor, OH 43449
Attorney for Plaintiff
James F. Seaman
320 N. Church Street
Oak Harbor, OH 43449
Defendant, Pro Se
Mark A. Frederick
125 Jefferson Street
Port Clinton, OH 43452
Guardian ad litem
______________________________
JOAN MONNETT, CLERK OF COURTS
/DEPUTY CLERK
SEPTEMBER 26, 2005
Note: If there is a party and/or attorney not listed above, but is reflected on the Clerk’s Docket
as not excused, the Clerk’s Office will add them to this page.
23