N.S. v. C.E.
2017 Ohio 8613
| Ohio Ct. App. | 2017Background
- Mother and father, never married, share one child born June 10, 2013; mother initially was designated residential parent in 2014.
- Father had supervised visitation starting July 2014 and moved to change custody in November 2015 alleging mother’s drug use, arrests, and unemployment.
- After mother’s January 2016 arrest for possession of drug-abuse instruments (child present in car), father obtained temporary custody and mother received supervised parenting time.
- A February 2017 hearing elicited testimony about mother’s past substance abuse, recent rehabilitation efforts (including Vivitrol), criminal history, living arrangements, and father’s stable history and negative drug tests.
- The magistrate granted custody to father, finding a change in circumstances and that the change was in the child’s best interest; the juvenile court overruled mother’s objections but its entry did not expressly find a change in circumstances.
- The court of appeals reversed and remanded because the juvenile court’s judgment entry failed to make the required R.C. 3109.04(E)(1)(a) finding that a change in circumstances occurred before modifying custody.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether the court made the required finding of a change in circumstances before modifying custody | Mother: Trial court erred by reallocating custody without finding a change in circumstances under R.C. 3109.04(E)(1)(a) | Father: Magistrate made findings and trial court adopted decision; modification was supported by evidence of mother’s misconduct and recent inability to parent | Court: Reversed — trial court’s entry failed to find or incorporate a change-in-circumstances determination as required by statute |
| Consideration of mother’s sister’s drug use in custody decision | Mother: Sister’s drug use was irrelevant; no evidence she cared for or regularly contacted the child | Father: Evidence of family environment and risk supported consideration | Held: Moot on appeal (court reversed on procedural ground); mother argued properly but court did not decide on merits due to disposition |
| Court’s finding about duration of mother’s Vivitrol treatment | Mother: Trial court misstated testimony by saying Vivitrol would last one year when standard is two years | Father: Argued mother’s treatment was recent and limited regardless of exact duration | Held: Moot on appeal (procedural reversal); trial court’s factual treatment criticized but not adjudicated on merits |
| Whether harm from changing environments was outweighed by advantages | Mother: Harm from removing child from primary parent outweighed benefits; change-of-environment analysis required by statute was not properly done | Father: Child had lived with father for a year; advantages favored change | Held: Moot on appeal; appellate reversal premised on failure to follow statutory stepwise analysis rather than weighing merits |
Key Cases Cited
- Davis v. Flickinger, 77 Ohio St.3d 415 (Ohio 1997) (abuse-of-discretion standard for custody modification)
- Fisher v. Hasenjager, 116 Ohio St.3d 53 (Ohio 2007) (statutory prerequisites for modifying custody under R.C. 3109.04)
- Wyss v. Wyss, 3 Ohio App.3d 412 (Ohio Ct. App. 1981) (policy against repeated custody motions without change in circumstances)
- State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608 (Ohio 1996) (definition of abuse of discretion)
- Terry v. Ottawa County Board of Mental Retardation & Developmental Disabilities, 165 Ohio App.3d 638 (Ohio Ct. App. 2006) (de novo review for purely legal questions)