Andrew P. v. Jessy Z.Andrew P. v. Jessy Z.
{¶ 1} Jеssy Z., appellant, appeals the decision of the Wood County Court of Common Pleas, Juvenile Division, which terminated a shared-parenting plan between Jessy and Andrew P., appellee, for their daughter, Katherina Z., and reallocated parental rights and responsibilities.
{¶ 2} Jessy and Andrew, unmarriеd, had Katherina in March 2002. A consent judgment entry filed on January 28, 2005, established a shared-parenting plan that provided for “equitable sharing of parental rights, responsibilities, and decision making” for Katherina. One year and two months later, Jessy filed a motion to terminate the shared-parenting agreement and sought an order naming her residential parent and legal custodian. By agreement of the parties, attorney Pamela Manning was appointed Katherina’s guardian ad litem (“GAL”), and the matter was set for an expedited hearing. Jessy then filed a motion to dismiss her own motion, without prejudice. The рarties filed a consent judgment entry agreeing to continue shared parenting and to continue Manning’s appointment as GAL. The parties also agreed that both they and Katherina would undergo psychiatric evaluations.
{¶ 3} On March 16, 2006, Jessy filed a second motion to terminate the shared-parеnting time and requested custody. Andrew responded by filing his own
{¶ 4} At trial, Andrew withdrew his motion to terminate the shared-parenting plan and orally requеsted that the shared-parenting plan continue “in some form.” After two days of testimony, including evidence of Dr. Graves’s evaluations and the GAL’s recommendations, the magistrate denied Jessy’s motion to terminate the shared-parenting plan. The magistrate’s decision granted each party parеnting time for seven consecutive days with alternating weeks. The GAL and Jessy filed objections to the magistrate’s findings of fact and reiterated their request that Jessy be named Katherina’s residential parent.
{¶ 5} On April 5, 2007, the trial court issued a judgment entry with new factual findings, adopting the magistrate’s decision in part and rеjecting it in part. Supporting its conclusion, the trial court made the following specific findings in its judgment entry:
{¶ 6} 1. A Children’s Resource Center prevention specialist who personally observed Jessy and Andrew with Katherina testified that each parent obviously loves Katherina and interacts approрriately with her.
{¶ 7} 2. Based on the evidence, “Katherina has adjusted well to her home and community. Both parents have been involved throughout Katherina’s life. Katherina has further had opportunity such as attending ballet classes, basketball, soccer, gymnastics, and nature classes.”
{¶ 8} 3. Andrew voluntarily works one day per week and has not worked full-time for approximately four years. Andrew relies “heavily upon his parents for payment of bills and support.” Jessy works one full-time job and one part-time job. Jessy “is able to provide basic support for herself and Katherina.”
{¶ 9} 4. Andrew took Katherina to hospital emergency rooms approximately “ten times over a four year span for a variety of reasons including constipation, diaper rash, and alleged abuse. In Katherina’s short life, there have been four investigations of alleged physical abuse of Katherina. All of these investigations have been concluded as unsubstantiated.”
{¶ 10} 5. “[Wjhile there was no substantiated abuse, at the very least a number of injuries sustained by Katherina appear to demonstrate some lack of an appropriate level of supervision provided to Katherina” by Jessy.
{¶ 11} 6. Dr. Wayne Graves, a psychiatrist qualified as an expert, evaluated Jessy, Andrew, and Katherina.
{¶ 12} 7. With respect to Katherina, Dr. Graves “did express some concern over the emotional impact of Katherina repeatedly being taken to the emergency room” by Andrew.
{¶ 14} 9. Other evidence led the trial court to find that Andrew “works well with those he considers supporting his position and is reluctant or guarded to work with those he perceives to have positions contrary to his.”
{¶ 15} 10. Evidence led the trial court to find that events occurred that “purportedly provide an insight into [Andrew’s] mental health, thought processes or judgments,” including:
{¶ 16} a. While proceedings were pending, Andrew established a website critical of the Wood County Department of Job and Family Services, believing that it did not properly investigate his allegations that Katherina was physically abused. Andrew placed pictures of Katherina on the website and banners of his criticism in his yard. Katherina saw one of the banners at least once. The trial court found that these actions “demonstrate poor judgment and at their worst, attempt to place Katherina’s situation * * * in the public domain primarily for [Andrew’s] purposes.”
{¶ 17} b. Andrew kept Katherina’s soiled diapers for “significant periods of time in an effort to demonstrate [that Jessy] failed to change diapers as needed.”
{¶ 18} c. Andrew “took pictures of Katherina’s bowel movements. [Andrew] claims these photos were taken as a result of Katherina’s constipation issues and for medical purposes.”
{¶ 19} 11. With respect to Jessy, Dr. Graves described her as “open, honest and as someone who avoided conflict.” Jessy was also found to be “relatively independent.”
{¶ 20} 12. Evidence led the trial court to find that events occurred that “purрortedly provide an insight into [Jessy’s] mental health, thought processes or judgments,” including:
{¶ 21} a. A documented incident when Jessy left Katherina alone in a vehicle.
{¶ 22} b. Jessy allowed a “male companion to spend the night with [Jessy] in [Jessy’s] bed- — -which is located in the same room where Katherina was sleeping— separated by a partial partition.”
{¶ 23} c. “An incident observed in a YMCA parking lot wherein [Jessy] was observed yelling at Katherina and, per one witness, slapping Katherina.”
{¶ 24} 13. A specific finding that “both [Jessy] and [Andrew] can generally honor and facilitate parenting time Orders.”
{¶ 26} 15. Because testimony conflicted as to whether Andrew consulted with Jessy before changing Katherina’s doctors, enrolled Katherina in counseling, and enrolled Katherina in activities, the court found that “the ability of the parents to cooperate and make decisions jointly is also seriously compromised” and “extremely limited.”
{¶ 27} 16. The GAL and Dr. Graves recommended that the shared-parenting plan bе terminated.
{¶ 28} 17. Given the context, “any concept of ‘shared parenting’ would be a shared parenting plan on paper only. * * * Any use of the word ‘shared parenting’ in this context is simply a charade.”
{¶ 29} Based on those findings, the trial court concluded that a change in circumstances had oсcurred since the original shared-parenting plan was instituted, concluded that termination of the shared-parenting plan was in Katherina’s best interests, and concluded that any harm caused by a new arrangement would be outweighed by the advantages.
{¶ 30} The trial court’s order grants Jessy and Andrew each seven consecutive days of parenting time every other week, with weeks alternating. With respect to the allocation of parental rights, the order specifically states: “Plaintiff/Father and Defendant/Mother shall be named the residential parent and legal custodian of Katherinа at all such times as Katherina is legally with them * * Both Jessy and Andrew were given authority to make medical decisions for Katherina “while Katherina is physically present with them.” Visitation for holidays was ordered pursuant to the standard court schedule. The parties were ordered to refrain from scheduling activities in conflict with the other parent’s time, without consent. However, they were ordered not to change Katherina’s health-care providers and were required to give each other notice of all nonemergency medical appointments.
{¶ 31} From that order, Jessy appеaled and now assigns the following as error for review:
{¶ 32} “The trial court abused its discretion in granting both parties residential parent status with a fifty-fifty time share and joint decision making responsibilities while terminating the shared parenting plan.”
{¶ 33} Jessy argues that the court abused its discretion by contradicting its own findings and reсommendations. Specifically, she argues that it was an
{¶ 34} In determining the allocation of parental rights and responsibilities for the care of minor children, the trial court is vested with broad discretion.
Miller v. Miller
(1988),
{¶ 35}
{¶ 36} In order to change the dеsignation of the residential parent and legal custodian of a child, the court must determine that a change in circumstances has occurred and that the modification is in the child’s best interests.
Fisher v. Hasenjager,
{¶ 37} However, other provisions apply here. “Shared parenting” means “that the parents share, in the manner set forth in the plan for shared parenting that is approved by the court * * * all of some of the aspects of physical and legal care of their сhildren.”
{¶ 39} Division (A) of
{¶ 40} Because Andrew had filed an oral motion requesting shared parenting, but the court found shared parenting to be against Katherina’s interests, the only other option for the trial court lay in
{¶ 41} “[I]f at least one parent files both a pleading or motion and a shared parenting plan under that division but no plan for shared parenting is in the best interest of the children, the court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to onе of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the children and the right of the рarent who is not the residential parent to have continuing contact with the children.” (Emphasis added.)
{¶ 42} The conclusion that shared parenting was against Katherina’s interest was, given the evidence, proper. However, the trial court clearly abused its discretion and applied the incоrrect statutory sections when naming both Jessy and Andrew as the residential parent and legal custodian. Based upon the parties’ motions and the trial court’s own conclusion that shared parenting was unsuitable, and pursuant to the framework of
{¶ 43} Appellant’s assignment of error is well taken. The judgment of the Wood County Court of Common Pleas, Juvenile Division, is reversed, and this matter is remanded for further proceedings consistent with this decision and judgment and the applicable law. Appellee is ordered to pay the costs of this appeal pursuant to
Judgment reversed and cause remanded.