IN RE: M.S., JR., Minor Child [Appeal by M.S., Sr., Father]
No. 99563
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 19, 2013
[Cite as In re M.S., 2013-Ohio-4043.]
McCormack, J., Stewart, A.J., and Jones, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. CU 12120496. JUDGMENT: REVERSED AND REMANDED.
M.S., Sr., pro se
4460 Sexton Road
Cleveland, OH 44105
FOR APPELLEE
L.W., pro se
37887 Birch Lane
Avon, OH 44011
{1} M.S., Sr., (“Father“) appeals from a judgment of the Cuyahoga County Juvenile Court that allocated parental rights and responsibilities regarding his child and gave sole legal custody of the child to the child‘s mother, L.W. (“Mother“). Because the trial court should have held a hearing pursuant to the requirement of
Substantive Facts and Procedural History
{2} Father and Mother have a child together, M.S., Jr., who was born in September 2010. They resided together until December 2012. Anticipating an imminent change in the couple‘s relationship, Father, pro se, filed an application on December 12, 2012, in the juvenile court for a determination of the custody of their child. In his affidavit, Father stated he has been a part of his son‘s daily life since he was born. However, the situation between him and the child‘s mother has changed, but he wishes to remain a part of his son‘s life regardless of what the future holds for him and the child‘s mother. Father also indicated he pays $602.15 in child support per month pursuant to a June 2011 administrative order.
{3} Shortly after Father filed the application, both Father and Mother moved out of the residence they had shared. The court set a mediation hearing for the custody matter. On January 10, 2013, a mediation took place and both Father and Mother signed a mediation agreement. Four days later, the mediation agreement was filed with the court.
{5} Notably, although Mother and Father share the possession of the child equally, the agreement states Mother shall have sole legal custody, without any exрlanations.
{6} Three days after the mediation agreement was filed, on January 17, 2013, the juvenile court journalized a “Mediation Entry,” which adopted the agreement as the court‘s order. The entry stated that the terms of the mediation agreement are in the best interest of the child and it designated Mоther to be the custodial and residential parent.
{7} Father filed, pro se, filed a timely appeal from the judgment.1 His assignment of error states: “The error lies in the mediation agreement upon which the court order was based. The error in the mediation agreement was that it did not express the appellant‘s desire for equal residential and legal custody of [M.S. Jr.] between father and mother.” Mother did not file an appellee‘s brief.
{8} Here, Father‘s application to determine custody was made pursuant to division (A)(2) of
{9} Therefore,
(A) In any divorce * * * and in any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child, upon hearing the testimony of either or both parents and considering any mediation report filed pursuant to section 3109.052 of the Revised Code and in accordance with sections 3127.01 to 3127.53 of the Revised Code, the court shall allocate the parental rights and responsibilities for the care of the minor children * * *
{11} Under an alternative approach, the parents may request shared parenting. Under shared parenting, the parents share all or some of the aspects of the physical and legal care of their children in the manner provided in the plan approved by the court.
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
{12} Furthermore,
{13} Finally, because this case involves unmarried parents,
An unmarried femаle who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian оf a child described in this section shall treat the mother and father as standing upon an equality when making the designation. (Emphasis added.)
{14} With the foregoing statutory framework in mind, we now turn to Father‘s application requesting a determination of custody.
{15} We review a trial court‘s decision in child custody matters under
{16} Furthermore, in reviewing a custody determination, a reviewing court must “review the record to determine whether there is any evidence in support of the prevailing party.” Sallee v. Sallee, 142 Ohio App.3d 366, 370, 755 N.E.2d 941 (12th Dist.2001).
The Necessity of a Hearing in this Case
{17} The record in this case is rather slim, essentially consisting of Father‘s application and the mediation agreement. In anticipation of a change of the relationship between Father and Mother, who were never married, Father applied to the juvenile court, prо se, for a determination of the child‘s custody. He stated that he has been a part of his son‘s life since the child was born, and wished to remain in his life regardless of the changed relationship between the child‘s mother and him. On appeal, he contends the mediation agreement adopted by the trial court did not take into account his desire for equal residential and legal custody of his son.
{18} Our review of the mediation agreement shows that the possession of the child is shared equally between Father and Mother. They share equally the possession of the child during the week, over thе weekend, and for all the holidays. Thus, although
{19} However, without any explanation, the agreement designates Mоther as having sole legal custody of the child, even though (1)
{20} These circumstances highlight a need for the trial court‘s independent inquiry. Yet, the trial court, without any analysis, stated summarily in the judgment entry that the terms of the mediation agreement are in the best interest of the child, adopted the agreement as the court order, and designated Mother as custodial and residential parent.
{21} As
{22} We recognize that the agreement adopted by the court in this case was the result of a mediation and both Father and Mother appeared to have approved the agreement by signing it. However, our reading of
in any proceeding pertaining to the allocation of parental rights and resрonsibilities for the care of a child, upon hearing the testimony of either or both parents and considering any mediation report filed pursuant to section 3109.052 of the Revised Code [“Mediation of differences as to allocation of parental rights and responsibilities“] * * * the court shall allocate the parental rights and responsibilities.* * * (Emphasis added.)
{23} Because a trial court is typically not required to hold a hearing if the shared parenting plan is not contested, we hesitate to fault the trial court for relying on the mediation agreement in its belief that the parental rights allocation in this case was uncontested and in the best interest of the child, and that a hearing was unnecessary. Indeed, Loc.R. 8 of Cuyahoga Court of Common Pleas, Juvenile Division, provides that any agreement reached during mediation shall be binding upon the parties.
{24} However, despite the local rule,
{26} Under these circumstances, we believe the trial court was obligated to hold a hearing in this case before it adopted the mediation agreement. Without a hearing, we are unable to review the record to see if the court‘s best-interest-of-the-child finding is supported by the evidence. Sallee, 142 Ohio App.3d 366, 755 N.E.2d 941. Thus, we are compelled to reverse the trial court‘s judgment and remand for a hearing.
{27} We recognize that Father whо was unrepresented did not request a hearing. However, the hearing requirement is “‘for the benefit of the children, not the parties, and it can not be waived by the parties.‘” Stroud, 11th Dist. Ashtabula No. 2002-A-0050, 2003-Ohio-6773, at ¶ 3, quoting In re Docie, 4th Dist. Athens No. 97CA19, 1998 Ohio App. LEXIS 1203.
{29} Judgment reversed, and case remanded for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM McCORMACK, JUDGE
MELODY J. STEWART, A.J., and
LARRY A. JONES, SR., J., CONCUR