In re B.H.H.
100 N.E.3d 33
| Ohio Ct. App. | 2017Background
- Parents (never married) executed a joint shared parenting plan (Nov. 12, 2014) designating both as residential parents; court adopted the plan as its order. Father had Thurs after school–Sun 4:00 PM; Mother had Sun 4:00 PM–Thu mornings.
- Father filed motions (July 2015; Mar. 28, 2016) seeking sole custody, alleging change in circumstances (Mother’s relocation, communication failures, child’s counseling). Neither motion expressly sought formal termination of the shared-parenting plan.
- Child (about 9 at hearing) has behavioral issues and was diagnosed with selective mutism; therapy began July 2015 and occurs weekly (during Father’s parenting time). Father initially arranged therapy without timely informing Mother.
- Mother relocated to West Union shortly after the shared plan was entered; relocation had been anticipated and was the basis for a child-support reduction agreed to by Father. Father remarried and divides time between his Ohio home and his wife’s Kentucky residence.
- Juvenile court treated Father’s motion as a motion to modify a prior custody decree under R.C. 3109.04(E)(1)(a), required a showing of change in circumstances, and denied the motion for failure to show a material and adverse change.
Issues
| Issue | Father's Argument | Mother's Argument | Held |
|---|---|---|---|
| Whether Father’s motion was properly treated as a request to terminate the shared-parenting plan (so R.C. 3109.04(E)(2)(c) applies) | Motion sought sole custody; thus it was a request to terminate the shared plan and should not require a change-in-circumstances showing | Motion sought reallocation of parental rights (residential parent/legal custodian), so it is a modification of a prior decree and R.C. 3109.04(E)(1)(a) applies | Court: Properly treated as motion to modify prior custody (E)(1)(a); not a termination under (E)(2)(c) |
| Whether R.C. 3109.04(E)(1)(a) requires showing change in circumstances only as to the residential parent or child | Juvenile court limited change-in-circumstances to residential parent/child; Father contends statute also covers either parent under a shared parenting decree | Statute language includes child, child’s residential parent, or either parent subject to a shared-parenting decree | Court: Juvenile court erred in stating only residential parent/child count, but error was harmless because it considered Father’s circumstances anyway |
| Whether designation of Mother as sole residential parent by juvenile court was correct given shared-parenting agreement | Father argued both were residential parents per the shared plan | Mother’s position was consistent with court’s factual treatment at hearing | Court: Juvenile court erred in treating Mother as sole residential parent (shared plan designated both), but error was harmless to outcome |
| Whether the child’s entry into therapy (diagnosed selective mutism) constituted a change in circumstances warranting reallocation | Father: Therapy and diagnosis (post-plan) are material changes adversely affecting child, justifying reallocation | Mother: Therapy was beneficial; no evidence therapy materially and adversely affected the child; other complained-of issues preexisted the plan | Court: Therapy was a change but no evidence it had a material and adverse effect; court did not abuse discretion in finding no qualifying change in circumstances; denial affirmed |
Key Cases Cited
- Fisher v. Hasenjager, 116 Ohio St.3d 53 (allocating parental rights is an allocation of parental responsibilities governed by R.C. 3109.04(E)(1)(a))
- Davis v. Flickinger, 77 Ohio St.3d 415 (change in circumstances must be substantial and materially adverse to justify disrupting child’s life)