2018 Ohio 1957
Ohio Ct. App.2018Background
- Case began with 2011 dependency/neglect proceedings after mother (T.B.) attempted suicide during divorce; temporary custody of L.B. was awarded to paternal grandmother and later (2012) legal custody was granted to father (B.B.).
- Mother moved in November 2014 for emergency and full custody, alleging father could not care for the child and citing his drinking, frequent moves, and unstable relationships.
- A 2015 hearing produced conflicting testimony: the guardian ad litem recommended custody to mother but noted both parents had histories of instability; father admitted multiple residences and at least one occasion of calling mother when intoxicated but asserted child was well-adjusted at school.
- The magistrate denied mother’s motion, finding no change in circumstances under R.C. 3109.04 sufficient to modify custody; mother objected but filed her supplemental objection slightly late and the trial court denied it as untimely.
- Mother appealed the denial arguing the trial court abused its discretion; the Sixth District Court of Appeals affirmed, finding the facts did not constitute a material change in circumstances warranting modification.
Issues
| Issue | Plaintiff's Argument (T.B.) | Defendant's Argument (B.B.) | Held |
|---|---|---|---|
| Whether there was a change in circumstances sufficient to modify custody under R.C. 3109.04 | Father’s frequent moves, multiple women in child’s life, drinking incidents, job instability, school absences, and interference with parenting time show a material change requiring custody change | Father argued the child is stable in his care and school, father has maintained employment, residences were adequate, missed calls are rearranged, and isolated incidents do not show a material adverse change | Court held there was no change of substance; relocation/relationship instability alone did not constitute the requisite material change and affirmed denial of modification |
Key Cases Cited
- Perz v. Perz, 85 Ohio App.3d 374 (6th Dist. 1993) (trial court must first find a change of circumstances before modifying custody)
- Davis v. Flickinger, 77 Ohio St.3d 415 (1997) (change of circumstances must be substantial, not slight or inconsequential)
- Wyss v. Wyss, 3 Ohio App.3d 412 (10th Dist. 1982) (requirement prevents repeated custody challenges for marginal improvements)
- Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599 (7th Dist. 2000) (change generally denotes an event or situation with material and adverse effect on the child)
- Miller v. Miller, 37 Ohio St.3d 71 (1988) (trial judge has wide latitude in custody determinations; review for abuse of discretion)