2012 Ohio 5865
Ohio Ct. App.2012Background
- Barrett and LeForge share a child, J.B., born in 1998, with a 2004 shared parenting plan naming Barrett as residential parent.
- Barrett moved J.B. to Arizona after the plan, and later Barret was stopped for speeding where he appeared intoxicated and pled guilty to DUI and endangerment.
- LeForge moved to reallocate parental rights following Barrett's DUI conviction and a hearing led by a magistrate to change custody, but the trial court sustained Barrett's objections and did not modify the plan.
- The trial court concluded there was no substantial change in circumstances and that J.B. should remain with Barrett, despite the conviction and relocations.
- LeForge appealed, arguing change in circumstances existed and the court failed to consider J.B.'s wishes in evaluating a modification.
- This Court reversed, holding Barrett's DUI conviction while J.B. was in the vehicle constituted a change in circumstances and remanded to consider all best-interest factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a change in circumstances | LeForge asserts substantial change due to DUI and related effects | Barrett contends no substantial change since last evaluation | Yes; change in circumstances found |
| Whether the change warranted modification in the best interests analysis | LeForge argues best interests require modification considering safety and stability | Barrett argues best interests favor continuity and current arrangement | Remand for full best-interest analysis |
| Whether J.B.'s wishes were considered in the best-interest evaluation | LeForge contends court failed to consider J.B.'s wishes | Barrett contends court properly weighed factors other than wishes | Judgment vacated for consideration of J.B.'s wishes |
Key Cases Cited
- Davis v. Flickinger, 77 Ohio St. 3d 415 (Ohio 1997) (change must be substantial to modify custody)
- Oberlin v. Oberlin, 2011-Ohio-6245 (9th Dist. No. 25864 (Ohio 2011)) (courts have wide latitude in evaluating evidence for change of circumstances)
- Neighbor v. Jones, 2008-Ohio-3637 (9th Dist. No. 24032 (Ohio 2008)) (convictions can constitute a change if directly affecting child safety)
- Kirchhofer v. Kirchhofer, 2010-Ohio-3797 (9th Dist. No. 09CA0061 (Ohio 2010)) (arrests for drug offenses can support change in circumstances)
- Nagel v. Hogue, 2008-Ohio-3073 (12th Dist. No. CA2007-06-011 (Ohio 2008)) (criminal conduct impacting child raises change in circumstances)