Fisher v. HasenjagerFisher v. Hasenjager
Lead Opinion
{¶ 1} The Third District Court of Appeals has certified this case pursuant to Section 3(B)(4), Article TV, Ohio Constitution and
{¶ 2} The facts in this case are not in dispute. Appellant and appellee share custody of their daughter. In 2003, the parties entered into a shared-parenting arrangement, in which parental rights and responsibilities were shared equally, and a detailed visitation schedule was established. The trial court accepted the parties’ arrangement and issued an order approving the agreement. However, in 2005, appellant and appellee both moved to become the sole residential parent and legal custodian of the child.
{¶ 3} In response to the parties’ motions, the trial court held a hearing at which both parties testified as to problems with one another and with the parenting arrangement. The trial court found that the parties had requested, and that it was in the child’s best interest, to terminate the shared-parenting plan. The trial court also stated, “The court in allocating parental rights and responsibilities has also considered the criteria under Section 3109.[04](F)(l)(a) through (j) and other relevant factors in reaching its decision. [Appellee] is hereby designated the residential parent and legal custodian of the parties [sic] minor child.”
{¶ 4} Appellant appealed the trial court’s decision. Appellant argued that because the trial court did not properly find that a substantive change in circumstances had occurred, the trial court could not modify appellant’s status as a residential parent and legal custodian. The court of appeals noted that the trial court failed to cite the statutory section on which it relied in deciding the parties’ motions. The court of appeals then analyzed the different statutory provisions permitting termination and modification of a shared-parenting agreement.
{¶ 5} The court of appeals examined four statutory sections:
{¶ 6} Despite the trial court’s language “terminating” the parties’ shared-parenting plan, the court of appeals reviewed the parties’ motions and the trial court’s entry and determined that the trial court had not terminated the parties’ shared-parenting plan but instead had modified the plan. As a result, the court of appeals determined that
{¶ 7} In order to determine whether
{¶ 8} After noting other courts’ treatments of the distinctions between
{¶ 9} The court of appeals then examined the definition of “terms” in
{¶ 10} We accepted jurisdiction over this discretionary appeal and also determined that a conflict exists as to the proper application of
{¶ 11} Once a shared-parenting decree has issued,
{¶ 12} “(l)(a) The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
{¶ 13} “(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
{¶ 14} “(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
{¶ 15} “(in) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
{¶ 16} “ * * *
{¶ 17} “(2) In addition to a modification authorized under division (E)(1) of this section:
{¶ 18} “ * * *
{¶ 20} “In construing a statute, a court’s paramount concern is the legislative intent. In determining legislative intent, the court first reviews the applicable statutory language and the purpose to be accomplished. In addition, statutes pertaining to the same general subject matter must be construed in pari materia.” (Citations omitted.) State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998),
{¶ 21} There is no dispute as to whether a court may modify parental rights and responsibilities pursuant to
{¶ 22} “Parental rights and responsibilities” is not defined in the statute. However, a majority of this court commented that the General Assembly changed the terms “custody and control” to “parental rights and responsibilities” when it amended
{¶ 23}
{¶ 24} A court also allocates parental rights and responsibilities when it issues a shared-parenting order.
{¶ 25} If a shared-parenting order is issued and the order is silent regarding the residential parent and legal custodian status, and the context does not clearly require otherwise, then each parent is a residential parent and legal custodian of the child: “Unless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the ‘residential parent,’ the ‘residential parent and legal custodian,’ or the ‘custodial parent’ of the child.”
{¶ 26} In summary,
{¶ 27} While the designation of residential parent and legal custodian can be modified under
{¶ 28}
{¶ 29}
{¶ 30} However, a plan includes provisions relevant to the care of a child, such as the child’s living arrangements, medical care, and school placement.
{¶ 31} A plan is not used by a court to designate the residential parent or legal custodian; that designation is made by the court in an order or decree. Therefore, the designation of residential parent or legal custodian cannot be a term of shared-parenting plan, and thus cannot be modified pursuant to
{¶ 32} Finally, we note that
{¶ 33} Modification of a prior decree, pursuant to
(¶ 34} The requirement that a parent seeking modification of a prior decree allocating parental rights and responsibilities show a change of circumstances is purposeful: “ ‘The clear intent of [
{¶ 35} Further, “[t]he General Assembly is the policy-making body in our state and has restricted the exercise of judicial authority with respect to modification of a prior decree allocating parental rights and responsibilities. This legislation comports with our rationale regarding stability in the lives of children as a desirable component of their emotional and physical development.” In re Brayden James,
{¶ 36} The standard in
{¶ 37} In conclusion, we hold that a modification of the designation of residential parent and legal custodian of a child requires a determination that a “change
Judgment reversed and cause remanded.
Notes
.
Dissenting Opinion
dissenting.
{¶ 38} I'dissent because this case involves a termination of a shared-parenting decree pursuant to
{¶ 39} The trial court writes in its judgment entry that it is terminating the shared-parenting arrangement: “The court finds it is in the best interest of the minor child Demetra and at the request of the parties, does hereby terminate the shared parenting plan previously entered into by the parties and ordered by this court.”
{¶ 40} The trial court could not have been clearer. The appellate court makes much of the fact that under the new order, the only major change from the shared-parenting agreement was that instead of equally allocating parental rights and responsibilities, the trial court provided that Hasenjager was the residential parent and legal custodian of Demetra. This was, in fact, a major change that completely shifted the legal status of each parent. Each parent separately moved the court to be named Demetra’s residential parent and legal custodian, thus asking the court to grant them a status that was inconsistent with shared parenting.
{¶ 41} At the hearing, both parties made it known that they sought a termination of shared parenting. Hasenjager testified as follows:
{¶ 42} “Q. [You’ve] asked the court to terminate the shared-parenting plan. Why did you ask the court to do that?
{¶ 43} “A. Because I feel uncomfortable in lieu of this past situation.”
{¶ 45} “Q. If the court would see fit to terminate the shared-parenting plan and if the court would designate you as the custodial parent of Demetra, what do you feel would be a proper parenting plan in terms of how often should she see her dad?
{¶ 46} “A. I think she should still see her father on a regular basis. It’s good for them to continue a relationship with one another. The scheduling that we have now, I think, works fíne for the time being. I have her while he’s working, and he has her while I’m working; and then we trade off on the weekends so — .”
{¶ 47} Likewise, in his testimony, Fisher testified that although shared parenting is theoretically beneficial, he thought that it could not work in his situation:
{¶ 48} “Q. Do you feel that it’s in the child’s best interest that this shared-parenting plan continue or cease?
{¶ 49} “A. I think that the shared-parenting plan is a good idea for a child. I think that in our particular situation, it would be beneficial to Demetra to have one party stand firm and the other party be a visitation party.
{¶ 50} Q. And what do you think is in the child’s best interest as far as that stand-firm party and the visiting party?
(¶ 51} “A. I think I’ve shown over the past two years, two and a half years, that I’m very stable and reliable. And I think that if I was custodial parent, I would be fair and keep this thing on track.”
{¶ 52} Fisher testified later:
{¶ 53} “Q. In a nutshell, it’s your desire to have a sole custody arrangement with visitation with Emma [Hasenjager]?
{¶ 54} “A. Yeah, it is — I would like to have full custody.”
{¶ 55} It is clear from their court filings and their testimony that both parties sought to be designated the sole residential parent and legal custodian of Demetra while granting the other parent generous visitation rights. While both parents would remain involved in the child’s life in such an arrangement, that is not “shared parenting.” The designation of one parent as the residential parent and legal custodian occurs only in cases where shared parenting is rejected.
{¶ 56} Because both parents requested a termination of shared parenting, the trial court proceeded according to statute. Pursuant to
{¶ 57} When a court terminates a shared-parenting decree under
{¶ 58} The trial court terminated the shared-parenting decree and moved forward pursuant to
{¶ 59} The trial court wrote that “in allocating parental rights and responsibilities,” it considered the “best interest of a child” criteria set forth in
{¶ 60} Although the trial court, for the most part, did not cite the statutes it relied upon, it clearly terminated the shared-parenting agreement and proceeded to allocate parental rights and responsibilities as required by