Shafor v. Shafor, Ca2008-01-015 (1-20-2009)Shafor v. Shafor, Ca2008-01-015 (1-20-2009)
{¶ 1} Plaintiff-appellant, Kathy Shafor, appeals the decision of the Warren County Court of Common Pleas, Domestic Relations Division, lifting the supervision restriction on defendant-appellee, Eric Shafor‘s, parenting time with their daughter. We affirm the trial court‘s decision.
{¶ 2} In April of 2002, appellant filed for a temporary restraining order against
{¶ 3} In the April 15, 2003 divorce decree the trial court found, based on the allegations of sexual abuse, supervised parenting time would best protect all parties. The following February, appellee moved for relief requesting the court to review whether supervised parenting time was still necessary. Appellant countered with a motion to modify appellee‘s parenting time to a neutral location with different supervisors. On September 30, 2005, following “a full hearing with testimony by psychologists,” the magistrate issued a decision denying both motions. The magistrate specifically noted that the goal of the court, and the parties, is to have the supervision requirement removed. In order to facilitate this objective, the magistrate made six recommendations to both appellant and appellee.1 The
{¶ 4} Appellee again requested relief from the supervision requirement on February 15, 2007. After hearing testimony from both parents, the child‘s therapist, and interviewing the now eight-year-old child, the magistrate found that supervision should be lifted so long as there was a transition period, and appellee had completed a parenting class. The magistrate particularly noted that the “purpose” behind the supervision requirement (protection of the parties and allegations of abuse) had changed in both the minds of the parties and the child‘s psychologists. Appellant filed objections which included asking the court to reinstate the supervision requirement. In its entry overruling appellant‘s objections, the trial court found that the psychologists’ concerns had changed from “objective concern about the minor‘s safety to concern about the minor‘s perception of her safety.” The trial court also noted that the child‘s therapist indicated the child was not afraid to be alone with her father, she only feared angering him, a belief appellant herself echoed during testimony. Observing that the reason for supervision had changed, the trial court agreed with the magistrate finding removal of the supervision requirement was “neither arbitrary nor contrary to the best interest of the child.” Instead, the trial court found it was “consistent with the testimony and recommendations presented.” Appellant filed an appeal raising one assignment of error.
{¶ 5} “THE TRIAL COURT ERRED IN MODIFYING PREVIOUS ALLOCATION OF PARENTING RIGHTS AND RESPONSIBILITIES TO REMOVE SUPERVISION REQUIREMENTS.”
{¶ 6} Appellant argues that a change in circumstances is required before a court may modify a preexisting parenting time order. Additionally, appellant argues that removing the supervision requirement is not in the best interest of the child. Both arguments are tailored around the belief that there were unfulfilled “conditions” placed on the parties in the previous order, and that the minor child is still expressing both fear and concern about her father. We find no merit to either argument.
{¶ 7} The trial court has broad discretion in deciding matters regarding the visitation rights of nonresidential parents. Appleby v. Appleby (1986), 24 Ohio St.3d 39, 41. Therefore, the trial court‘s decision is subject to reversal only where there is an abuse of discretion. King v. King (1992), 78 Ohio App.3d 599, 602. This is premised on the idea that the trial court must have the discretion to do what is equitable based upon the particular facts and circumstances of each case. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, citing Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355. A reviewing court may not merely substitute its judgment for that of the trial court absent a showing that the decision was unreasonable, arbitrary, or unconscionable. Quint v. Lomakoski, 167 Ohio App.3d 124, 2006-Ohio-3041, ¶ 12; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 8} While a change in circumstances is required where there is a change in custody arrangements, any changes to visitation, or parenting time, are not subject to the same requirement. Braatz v. Braatz, 85 Ohio St.3d 40, 44-45, 1999-Ohio-203; see also In re: Nichols (June 8, 1998), Clermont App. No. CA97-11-102, at 7 (finding no requirement to show a change in circumstances with regards to changes in visitation). Instead,
{¶ 9} “The court‘s primary consideration should [always] be the best interest of the children.” King v. King (1992), 78 Ohio App.3d 599, 602. In order to further the child‘s best interest, the trial court has the discretion to limit or restrict visitation rights. Anderson v. Anderson, 147 Ohio App.3d 513, 2002-Ohio-1156, ¶ 18. “This includes the power to restrict the time and place of visitation, to determine the conditions under which visitation will take place and to deny visitation rights altogether if visitation would not be in the best interests of the child.‘” Id. quoting Jannetti v. Nichol (May 12, 2000), Mahoning App. No. 97 CA239, 2000 WL 652540 at *3.
{¶ 10} Contrary to appellant‘s argument, appellee was not required to show there was a change in circumstances before the trial court modified its previous order and lifted the supervision restriction on appellee‘s parenting time. Instead, the trial court only needed to consider the factors enumerated within
{¶ 11} Here, the trial court took into account several factors. First, the trial court took into account the child‘s mental health by finding that she still fears her father‘s anger. Next, the trial court took into account the heath and safety of the child, by finding that the purpose of the supervision requirement was no longer at issue. The trial court also found that appellee enrolled in, and completed, a parenting class, which is indicative of furthering a child‘s best interest.
{¶ 12} We also note that it appears from the record that the child was interviewed by the magistrate on October 11, 2007, presumably in order to ascertain the child‘s concerns and wishes. Furthermore, the child was a little over two and a half when the supervised parenting order was initiated, and was a little over eight when the restriction was lifted. The difference in age, coupled with a better ability to articulate any possible problems to her mother, counselor, therapist or teachers, may have also played a part in lifting the restriction on parenting time.
{¶ 13} The record also indicates that appellee has been part of a support program for substance abuse problems which helped him to better manage more volatile aspects of his personality. In addition, the child has been regularly attending therapy sessions, since she was two and a half years old, which have taught her to protect herself and to adjust to her relationships with others. Finally, there have been no further allegations of abuse against appellee, nor does the record indicate that anyone fears abuse will occur in the future.
{¶ 14} Therefore, we cannot find an abuse of discretion in the trial court‘s decision to remove the supervision requirement on appellee‘s parenting time. The record indicates that the trial court considered the statutory factors in
{¶ 15} Judgment affirmed.
WALSH, P.J., and BRESSLER, J., concur.