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Court Must Find ‘Change in Circumstances’ Before Modifying Designation of Child’s Custodial Parent

2006-1815 and 2006-1853. Fisher v. Hasenjager, Slip Opinion No. 2007-Ohio-5589.
Mercer App. No. 10-05-14 , 168 Ohio App.3d 321, 2006-Ohio-4190. Judgment reversed and cause remanded.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Blackmon, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Patricia Ann Blackmon, J., of the Eighth Appellate District, sitting for Cupp, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2007/2007-Ohio-5589.pdf

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(Oct. 25, 2007) In a decision announced today, the Supreme Court of Ohio held that before a court may modify the designation of a child's residential parent and legal custodian, the court must determine not only that the modification is in the best interest of the child, but also that a “change in circumstances” affecting the prior parenting arrangement has occurred. The Court's 5-2 majority decision was written by Chief Justice Thomas J. Moyer.

The case involved a dispute between Paul Fisher and Emma Hasenjager of Mercer County , who had a child together in 2002. In 2003 the couple entered into a court-approved shared-parenting agreement in which parental rights were shared equally and a detailed visitation schedule was established. In 2005, however, Fisher and Hasenjager filed separate motions asking the Mercer County Court of Common Pleas to modify the shared-parenting order, with each asking to be named as the child's sole residential parent and legal custodian. Following a hearing at which both motions were considered, the court issued a judgment that made no determination of a change in the circumstances of the parents, but held that it was in the best interest of the child that Hasenjager be named as the child's sole residential parent and legal custodian.

Fisher appealed that ruling to the 3rd District Court of Appeals, arguing that the trial court judgment was invalid because it had taken away his parental rights as co-residential parent and custodian without first making a required factual finding under R.C. 3109.04(E)(1)(a) that there had been a substantive “change in circumstances” of the child or of either parent that affected the prior parenting arrangement. The 3rd District affirmed the trial court's decision, holding that under a different provision of the statute cited by Fisher, R.C. 3109.04(E)(2)(b), the trial court had authority to “modify the terms” of the shared parenting agreement based solely on its finding that the modification was in the best interest of the child, without requiring a finding of changed circumstances.

The 3rd District certified that its interpretation of the applicable statutes was in conflict with rulings in several other appellate districts, and the Supreme Court agreed to hear arguments to resolve the conflict among districts.

Writing for the majority in today's decision, Chief Justice Moyer distinguished between a “decree allocating parental rights,” which may only be modified after a finding of changed circumstances of the child or parents, and a “shared-parenting plan” the terms of which may be modified based on the less-demanding standard of being in the best interest of the child.

“ Within the custody statute, a ‘plan' is statutorily different from a ‘decree' or an ‘order,'” wrote Chief Justice Moyer. “A shared-parenting order is issued by a court when it allocates the parental rights and responsibilities for a child. Similarly, a shared-parenting decree grants the parents shared parenting of a child. An order or decree is used by a court to grant parental rights and responsibilities to a parent or parents, and to designate the parent or parents as residential parent and legal custodian.”

“However, a plan includes provisions relevant to the care of a child, such as the child's living arrangements, medical care, and school placement. A plan details the implementation of the court's shared-parenting order. For example, a shared-parenting plan must list the holidays each parent is responsible for the child, and include the amount a parent owes for child support. A plan is not used by a court to designate the residential parent or legal custodian; that designation is made by the court in an order or decree. Therefore, the designation of residential parent or legal custodian cannot be a term of shared-parenting plan, and thus cannot be modified pursuant to R.C. 3109.04(E)(2)(b).”

In this case, the Chief Justice noted, the 2005 trial court order appealed by Fisher changed the allocation of parental rights set forth in the shared-parenting decree that had previously been in place. Accordingly, he wrote, the trial court was required to make prior findings not only that the modification was in the best interest of the child, but also that there had been a material change in the circumstances of the child or at least one parent. “Modification of a prior decree, pursuant to R.C. 3109.04(E)(1)(a), may be made only ‘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, the child's residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child,'” Moyer wrote.

Quoting from two prior Supreme Court decisions, Davis v. Flickinger (1997) and Wyss v. Wyss (1982), the Chief Justice observed: “The requirement that a parent seeking modification of a prior decree allocating parental rights and responsibilities show a change of circumstances is purposeful: ‘The clear intent of [R.C. 3109.04(E)(1)(a)] is to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the child a “better” environment. The statue is an attempt to provide some stability to the custodial status of the children, even though the parent out of custody may be able to prove that he or she can provide a better environment.'”

Chief Justice Moyer's opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O'Connor, Terrence O'Donnell and Patricia Ann Blackmon of the 8th District Court of Appeals, sitting for Justice Robert R. Cupp.

Justice Paul E. Pfeifer entered a dissenting opinion, joined by Justice Judith Ann Lanzinger, stating that in his view the action taken by the trial court in this case was not the “modification” of a joint parenting order as determined by the majority, but was rather the “termination” of the prior shared-parenting order between Fisher and Hasenjager – an action that did not require the court to make a finding of changed circumstances.

“It is clear from their court filings and their testimony that both parties sought to be designated the sole residential parent and legal custodian of Demetra while granting the other parent generous visitation rights,” wrote Justice Pfeifer. “While both parents would remain involved in the child's life in such an arrangement, that is not ‘shared parenting.' The designation of one parent as the residential parent and legal custodian occurs only in cases where shared parenting is rejected. ... Since both parents requested a termination of shared parenting, the trial court proceeded according to statute. Pursuant to R.C. 3109.04(E)(2)(c), ‘[t]he court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children.'”

Douglas B. Dougherty, 614.798.1933, for Paul Fisher.

James A. Tesno, 419.586.6481, for Emma Hasenjager.