{¶ 2} Appellee is the father of four-year-old Nicole, born February 12, 2001. Tiffany West is Nicole's mother. Appellant is Nicole's maternal grandmother. Tiffany did not inform appеllee or appellant of her pregnancy or the child's birth.
{¶ 3} When appellant learned that Tiffany had given birth and was going to place the baby for adoption, she sought custody of Nicole. A dependency complaint was filed and the juvenile court granted appellant interim custody of Nicole. A magistrate found that Nicole was dependent. However, it does not appear that the triаl court ever ruled on the issue. This was because at that time, appellee learned of Nicole's birth and that he might be the father. He filed a motion to establish paternity on March 30, 2001. The court subsequently incorporated the dependency case into the paternity case. It later ordered that all filings were to be made under the paternity case.
{¶ 4} Appellee took a paternity test that established he was Nicole's father. Subsequently, he filed a motion to establish custody and/or visitation with Nicole. The court granted him visitation with Nicole. This continued for several months. Appellee then sought custody of Nicole, or in the alternative, shared parenting. Tiffany also sought custody of Nicole. Before the court could rule on the motions, Tiffany, appellee, and appellant enterеd into a plan of shared parenting/joint custody.
{¶ 5} The shared parenting plan referred to Nicole's parents and grandparent. It was signed by Tiffany, appellee, and appellant. The agreement provided for week-on, week-off custody of Nicole. At the time, Tiffany resided with appellant. The agreement stated that during the time that Nicole was with Tiffany and appellant, they were to be designated as joint custodians of Nicole. The court adopted this agreement.
{¶ 6} On December 18, 2002, appellee filed a motion to dissolve the shared parenting plan and award him custody of Nicole. As a basis for his motion, appellee alleged that Tiffany had failed to care for Nicole or to participate in the shared parenting plan. He further alleged that appellant had refused to abide by the terms of the shared parenting plan. Appellee alleged that appellant was trying to take the role of mother in Nicole's life. He noted that Tiffany had moved out of appellant's home and appellant did not inform him of this change. Appellee also requested that the court appoint a guardian ad litem (GAL) for Nicole.
{¶ 7} The matter proceeded to trial bеfore a magistrate. Tiffany failed to appear. The magistrate heard testimony from appellant, appellee, appellant's mother, and the GAL. The magistrate found that at no time had appellee or Tiffany been found to be unsuitable. He further found that the shared parenting agreement was not a contractual relinquishment of custody by either parent. He noted that parents have a fundamental liberty interest in the care of their children over the interests of a non-parent. The magistrate determined that he was not obliged to reach the best interest of the child test because the child's best interest is presumptively with the natural parent. He further noted that while appellee was not required to demonstrate a substantial change of circumstances, he met that standard becausе of facts that had arisen regarding Tiffany and Nicole. The magistrate concluded that appellee was not unsuitable and was entitled to Nicole's custody and that such an award was in Nicole's best interest. The magistrate designated appellee as Nicole's residential parent and custodian. He designated Tiffany as the non-residential parent. He also determined that he would not establish a сompanionship order between Nicole and appellant.
{¶ 8} Appellant filed objections to the magistrate's decision. She contended that the magistrate erred in applying the suitability test instead of the best interest test. She requested that the court overrule appellee's motion to terminate the shared parenting plan. She also requested that the court re-institute her companionship rights with Nicole.
{¶ 9} The court held a hearing on appellant's objections. It found no error of law or fact with the magistrate's decision, affirmed the decision, and dismissed appellant's objections. Appellant subsequently requested findings of fact and conclusions of law. The court then entered judgment awarding custody to appellee. It found that appellee was a suitable parent and, therefоre, should be awarded custody of his daughter. Appellant filed a timely notice of appeal on January 3, 2005.
{¶ 10} Appellant raises one assignment of error, which states:
{¶ 11} "THE COURT ERRED IN GRANTING SOLE CUSTODY TO THE FATHER AND TERMINATING COMPANIONSHIP RIGHTS WITH THE MATERNAL GRANDPARENT."
{¶ 12} Appellant argues that the trial court applied the wrong test in awarding sole custody to appellee and terminating her companionship rights. She contends that the parental suitability test set out in In re Perales (1977),
{¶ 13} We must determine whether the trial court erred in applying the parental suitability test in a case where a grandparent was incorporated into a shared parenting plan involving the mother, father, and grandparent and where the father seeks to terminate the shared parеnting plan and receive sole custody of the child.
{¶ 14} The present case first arose under R.C.
{¶ 15} In an R.C.
{¶ 16} The Perales "suitability" test differs from the "best interest" test. Under the best interest test, the court looks for the best situation available to the child аnd places the child in that situation. In re Lowe, 7th Dist. No. 00-CO-62,
{¶ 17} Without giving their reasons for doing so, the magistrate and the trial court used the suitability test in granting sole custody to appellee. In the magistrate's findings of fact, he stated that at no stage in these proceedings has appellee been found to be parentally unsuitable. The magistrate further found that the shared parenting/joint custody agreement entered into by the parties was not a contractual relinquishment of custody by either parent. He then noted that parents have paramount rights and a fundаmental liberty interest in the care, custody, and management of their children over the interests of a non-parent. The magistrate stated that an award of custody may not be granted to a non-parent without a finding of parental unsuitability. The magistrate determined that the court was not obliged to reach the best interest test or to find a change in circumstances. However, he stated that even if the court was to use such a test, appellee demonstrated a change in circumstances. He concluded that since appellee is not unsuitable, he was entitled to the custody of his child and that such an award was also in the best interest of the child.
{¶ 18} The trial court echoed the magistrate's findings and conclusions, although the court did not state, as the magistrate did, that the award was also in the best interest of the сhild. It found that appellee's fitness as a father has never been questioned. It also found that an award of custody to appellee would not be harmful or detrimental to Nicole as to render appellee unsuitable.
{¶ 19} In order to determine which test applies, we should examine the major cases where each test was determined to be proper.
{¶ 20} The main case dealing with the suitability test isPerales, supra. Perales involved a custody dispute betweеn a child's natural mother and a nonparent. Upon the child's birth, the mother feared her husband would harm the child so she placed the child in the care of Ms. Nino and signed an agreement purporting to give custody to Ms. Nino. Two years later, Ms. Nino made a motion for custody, which the juvenile court granted. The mother subsequently filed a complaint for return of the child and custody, describing the circumstances surrounding the child's рlacement in Ms. Nino's care and alleging that the child's return to her mother was "in the best interest" of the child. The juvenile court, applying the R.C.
{¶ 21} The Ohio Supreme Court addressed the issue of whether the juvenile court properly awarded the child's custody to Ms. Nino without a finding that the mother was an unsuitable parent. It concluded that a parent could only be denied custody of his or her children if a preponderance of thе evidence indicated abandonment, contractual relinquishment of custody, total inability to provide care or support, or that the parent is otherwise unsuitable, that is, that an award of custody would be detrimental to the child. Id. at 98. Since the juvenile court failed to determine whether the mother was unsuitable, the Court reversed the decision for the juvenile court to determine the mother's suitability as defined by the criteria it set out.
{¶ 22} The Court further examined its Perales decision inMasitto v. Masitto (1986),
{¶ 23} The Supreme Court framed the issue as: "whether it is contrary to law for a trial court to proceed under the `best interest of the child' test enunciated in R.C.
{¶ 24} The Court considered the agreement Louis entered into with the grandparents. It found that not only did he consent to having his child be under the grandparents' care, he also consented to the agreement to their being appointed her legal guardians, and later consented to a divorce decree that incorporated his agreement to leave his daughter in her grandparents' care. Id. at 66. The Court concluded that by consenting to the agreement and the divorce decree, Louis forfeited his natural rights to custody of his daughter, making the child's best interest the appropriate test for a change in custody. Id. The Court also noted an additional factor that it considered — the guardianship status of the child could not have existed unless the probate court found that the natural parents were unsuitable to have the custody of the child or whose interests, in the court's opinion, would be promoted thereby. Id. Thus, the Court determined that Louis relinquished his natural rights to custody. It concluded that the prior agreement was an original award of custody to a guardian, the modification of which requires satisfaction of the child's best interest. Id. at 67.
{¶ 25} More recently, in In re Hockstok,
{¶ 26} Ten months later, Gorslene filed a motion for the reallocation of parental rights. The magistrate again applied the best interest test in reсommending that the Hockstoks retain custody. Gorslene objected arguing the magistrate was first required to determine whether she was a suitable parent. The trial court, in adopting the magistrate's decision, denied Gorslene's motion. Gorslene appealed.
{¶ 27} The Court held that in a child custody case arising from a parentage action between a parent and a nonparent, the trial court must makе a parental unsuitability determination on the record before awarding the child's legal custody to a nonparent. Id. at the syllabus. On appeal, the Hockstoks argued that Gorslene failed to appeal the original grant of legal custody to them thereby constructively forfeiting her right to custody, and therefore, the court did not err in applying the best interest test. The court disagreed, finding that no evidence existed that Gorslene ever agreed to give the Hockstoks legal custody of her child.
{¶ 28} The Court also reexamined Masitto, supra. It re-emphasized that the general rule in Ohio, as codified in R.C.
{¶ 29} Finally, this court examined a custody dispute between a parent and a nonparent in In re Davis, 7th Dist No. 02-CA-95,
{¶ 30} This court noted that at the time of the hearing, Carwell only had temporary custody of the child. Therefore, the juvenile court was faced with an original custody determination between a parent and nonparent. We then emphasized parents' fundamental right to raise their children as long as they are deemed suitable under the Perales test. We concluded that the juvenile court erred in applying the best interest test instead of the suitability test and, since the evidence demonstrated that Price was a suitable рarent, reversed the lower court's judgment.
{¶ 31} These cases all express that when a court is faced with an original custody action between a parent and a nonparent, the court must award custody to the parent unless it finds the parent to be unsuitable. However, once an original custody award has been made, the court should not modify that award unless necessary to serve the best interest of the child.
{¶ 32} In the case at bar, the juvenile court was faced not with an original award of custody between a parent and nonparent, but a modification of an original award of custody. The shared parenting/joint custody agreement, which was adopted by the court, included appellant as a joint custodian for Nicole along with her parents. While appellee did not surrender any of his rights as a parent by entering into this agreement, as did the father in Masitto, he did agree to an original award оf custody, which the court adopted. Thus, in order to modify the shared parenting/joint custody agreement, the juvenile court should have applied the best interest test instead of the suitability test.
{¶ 33} Since the court did not apply the best interest test, its decision must be reversed and remanded. On remand, the court must apply the best interest test in ruling on appellee's motion for custody. However, another hearing is not required since the parties already presented significant evidence regarding the change in circumstances and Nicole's best interests at the previous hearing. Furthermore, after the court determines whether it is in Nicole's best interest to grant her custody to appellee or appellant, it should set out any visitation that it finds proper.
{¶ 34} For the reasons stated above, the juvenile court's judgment is hereby reversed and remanded for further proceedings pursuant to law and consistent with this opinion.
Vukovich, J., concurs.
DeGenaro, J., concurs.