2021 Ohio 1222
Ohio Ct. App.2021Background
- Parties divorced in 2010; the trial court approved a joint shared‑parenting plan and designated the mother (Brenda Bub) the residential parent for school placement.
- Beginning in August 2016 the child (born during the marriage) made allegations of inappropriate/sexual touching by the father (Gene Kurzen) and the father’s girlfriend’s son; law enforcement and child‑protective services investigated; portions of the record were sealed because of the investigation.
- Mother withheld court‑ordered parenting time in late‑2016; the parties later stipulated that mother failed to allow father parenting time on specified dates between Aug–Dec 2016, supporting contempt proceedings.
- After hearings and an in‑camera interview of the child (age 12), the magistrate terminated the shared‑parenting decree, designated mother residential parent and legal custodian, and granted father parenting time under the court’s standard policy with the condition that the girlfriend’s child not be present during visitation.
- The trial court conducted an independent review, adopted the magistrate’s decision, found changed circumstances and that the best‑interest factors favored designating mother residential parent, adjudicated mother in contempt for one visitation denial (she was given a purge), and approved limited parenting time for father; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Kurzen) | Defendant's Argument (Bub) | Held |
|---|---|---|---|
| Whether the court abused its discretion by terminating the shared‑parenting decree and naming mother residential parent/legal custodian | Father: magistrate improperly weighed factors; if abuse allegations are given no weight, factors favor awarding custody to father | Mother: best‑interest factors (including child’s in‑camera wishes, GAL recommendation, family interactions) support terminating shared parenting and naming mother residential parent | Court: No abuse of discretion; trial court properly applied R.C. 3109.04(F) factors, conducted independent review, and found termination/allocation in child’s best interest |
| Whether the court abused its discretion in awarding father only standard parenting time and in its consideration of R.C. 3109.051(D) factors | Father: trial court failed to analyze certain R.C. 3109.051(D) factors fully and misweighed factors, which would warrant more parenting time | Mother: parenting time limited by child’s expressed wishes, GAL and clinician recommendations, safety concerns regarding girlfriend’s son; court may impose conditions to protect child | Court: No abuse of discretion; trial court considered the R.C. 3109.051(D) factors (or the record reflects consideration), and the parenting time order with conditions was reasonable and in child’s best interest |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (establishes "abuse of discretion" standard and its meaning)
- Braatz v. Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (sets standards for modification of visitation/parenting time)
- In re A.G., 139 Ohio St.3d 572, 13 N.E.3d 1146 (discusses R.C. 3109.04(F) best‑interest factors in custody determinations)
- State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (explains meaning of "abuse of discretion")