In re G.B.

[Cite as In re G.B., 2022-Ohio-382.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE G.B. :
: No. 110730
A Minor Child :
:
[Appeal by J.H., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 10, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU-09-121874
Appearances:
Lanter Legal L.L.C., and Joseph J. Lanter, for appellant.
Hans C. Kuenzi Co., L.P.A., and Hans C. Kuenzi, for
appellee.
EILEEN A. GALLAGHER, P.J.:
Father-appellant, J.H. (“Father”), appeals from the juvenile court’s
decision designating Mother-appellee, R.T. (“Mother”), as the residential parent for
their daughter, G.B., for school purposes, and reducing Father’s parenting time after
Mother moved from Lakewood, Ohio to Jefferson, Ohio — approximately 60 miles
and 90 minutes away from Father. Father contends that the juvenile court abused
its discretion in designating Mother the residential parent for school purposes and
modifying the parties’ parenting time because (1) the juvenile court failed to
properly apply R.C. 3109.04(E)(1)(a), (2) its decision was not supported by
substantial competent and credible evidence and (3) the juvenile court failed to
consider G.B.’s wishes as required by R.C. 3109.04(F)(1)(b).
For the reasons that follow, we affirm.
Procedural and Factual Background
On July 27, 2010, the juvenile court approved and entered an agreed
shared-parenting plan executed by the parties. At that time, G.B. (date of birth
March 24, 2008) was two years old and the parties lived 10-15 minutes away from
one another, Father living in Cleveland and Mother living in Lakewood. Under the
shared-parenting decree, both Mother and Father were designated residential
parents and legal custodians of G.B. Mother was also designated the residential
parent for school purposes; however, the shared-parenting plan stated that “[i]f
[M]other moves from Lakewood, OH[,] then if the parties can’t agree[,] they will file
a motion to determine the residential parent for school purposes, only.”
The Parties’ Motions to Modify the Shared-Parenting Plan
On March 8, 2019, when G.B. was nearly 11 years old, Father filed a
motion to modify the shared-parenting plan. Father requested that he be granted
additional parenting time so that G.B. could spend “equal time with each family”
and to allow G.B. to participate in extracurricular activities. Father also requested
“stronger language” in the agreement to “compel[] better cooperation between [the]
parents.”
On April 18, 2019, Mother filed a notice of intent to relocate and
motion to modify the shared-parenting plan. Mother indicated that she intended to
relocate to “the eastside of Cleveland” and requested that the parties’ parenting time
be modified to “better suit the best interest of the child” “[d]ue to the distance
between Father’s residence and Mother’s intended residence.”
On May 6, 2019, Father filed a motion for a restraining order
pursuant to Juv.R. 13, seeking to prevent Mother from changing G.B.’s school when
she moved outside of Cuyahoga County. In an affidavit submitted in support of the
motion, Father averred that G.B. had attended Lakewood City Schools “throughout
her life,” that G.B. had “expressed * * * her adamant desire to remain in Lakewood
schools” and that he believed it was in G.B.’s best interest to remain enrolled in
Lakewood City Schools. Father argued that the shared-parenting plan did not
permit Mother to change G.B.’s school without a court order. He requested that he
be designated the residential parent for school purposes and that Mother’s
parenting time be modified to account for the distance between Mother’s and
Father’s residences.
Mother opposed the motion, arguing that she has “always been the
primary residential parent for school purposes” and that that “needn’t change on a
temporary basis nor should [G.B.] be precluded from being enrolled in school.”
On May 23, 2019, Mother filed a motion for temporary orders
pursuant to Juv.R. 13. Mother claimed that Father was hiring G.B. out for
“aerial/pole dancing activities” and that images of G.B. engaging in aerial dancing
activities had been posted on a website without Mother’s consent. Mother requested
that the court enter temporary orders terminating G.B.’s participation in such
activities and requiring Father to remove all images of G.B. engaging in such
activities from the internet. Mother further indicated that she and her husband
would be moving “in the upcoming months” and requested that the court enter a
temporary order modifying the parenting-time schedule to accommodate the move.
Father opposed Mother’s motion, asserting that Mother was
mischaracterizing G.B.’s participation in aerial dancing. He claimed that Mother
had previously supported G.B.’s participation in aerial dancing, including posting
pictures of her dancing on social media. Father further asserted that, upon receipt
of Mother’s motion, he had taken steps to remove any images of G.B. engaging in
aerial dancing from the internet, therefore, that portion of Mother’s motion was
moot.
On July 31, 2019, the juvenile court granted Father’s motion for a
restraining order, designated Father as the temporary residential parent for school
purposes and entered an interim modified parenting time schedule, pursuant to
which Mother was granted weekend parenting time with G.B. for three weekends
each month. The juvenile court granted Mother’s motion for temporary orders, in
part, prohibiting any depiction of G.B. on the internet related to her participation in
aerial dancing. The juvenile court also appointed a guardian ad litem for G.B.
On March 23, 2020, Mother filed a motion to be designated sole
residential parent and legal custodian of G.B. Mother asserted that “significant
changes have occurred in the circumstances” of the parents and G.B. and that,
should the court find that shared parenting was not in G.B.’s best interest, G.B.’s
best interest would be served by designating Mother as the sole residential parent
and legal custodian because Mother and G.B. “enjoy a loving and fulfilling
relationship” and Mother is “well equipped to serve as a fit and proper primary
custodian for her daughter.”
The Guardian ad Litem’s Written Report and Recommendation
On February 26, 2020, the guardian ad litem submitted her written
report and recommendation. The guardian ad litem indicated that she had
interviewed G.B., Mother, Father, G.B.’s stepparents, extended family members,
G.B.’s counselor and the parents’ legal counsel and had reviewed various
documents, including the court file, documents provided in discovery and G.B.’s
school records. The guardian ad litem reported that Father believed he should be
designated the residential parent for school purposes because Mother was not
interested in fostering G.B.’s interest and participation in extracurricular activities.
The guardian ad litem noted that Father also expressed concerns regarding Mother’s
lack of attention to school events involving G.B. The guardian ad litem reported that
Mother believed she should be designated the residential parent for school purposes
because G.B. was usually with her stepmother, E.H., rather than with Father, during
Father’s parenting time and, as a result, her “role as mother” was “being minimized.”
The guardian ad litem reported that Mother wanted Father’s parenting time with
G.B. to correspond with his time off from work. The guardian ad litem noted that
Mother was not opposed to G.B. being involved in extracurricular activities but that
the distance between the two residences and the fact that Mother had three other
young children, made it difficult for Mother to attend G.B.’s events when G.B. was
in Lakewood.
With respect to G.B.’s wishes, the guardian ad litem reported that
G.B. had expressed a strong, consistent desire to remain in Lakewood City Schools
and was “distress[ed]” at the thought of having to change schools because she
wanted to retain her current friend group and thought changing schools would be
difficult for her. The guardian ad litem noted that G.B. had indicated that if the
circumstances were reversed, i.e., if Father had moved to Jefferson and Mother had
remained in Lakewood, she would want to live primarily with Mother so she could
continue to attend Lakewood City Schools. The guardian ad litem reported that G.B.
has positive relationships with her parents, her stepparents and her siblings and that
she is comfortable living at both houses. The guardian further reported that G.B.
believes Father would be more likely to support her participation in extracurricular
activities. The guardian ad litem indicated that G.B. is stressed and anxious as a
result of the parties’ custody dispute and has been in counseling to assist her in
developing coping skills and communicating more effectively with her parents. The
guardian ad litem noted that G.B. was “saddened” that, as a result of Mother’s move
to Jefferson, she was not able to see Mother during the week and was not able to
enjoy weekend parenting time with Father as often as she would like.
The guardian ad litem indicated that both parents were “appropriate”
for designation as the residential parent for school purposes, that both parents were
committed to the best interest of G.B. and that both parents were able to meet her
basic, ongoing needs. However, after “thoughtful consideration” of all the relevant
factors, the guardian ad litem recommended that Mother be designated the
residential parent for school purposes. The guardian ad litem acknowledged that
her recommendation differed from G.B.’s wishes but stated that G.B. is “an
exceptionally gifted student” and that “[t]here is no reason to believe that she would
not perform as well in a new school setting.” The guardian ad litem further
recommended that Father be granted liberal parenting time and that Father’s work
schedule be the “determinative factor” in creating a modified parenting-time
schedule.
The Evidentiary Hearing
After multiple continuances, the juvenile court held an evidentiary
hearing on the parties’ motions on June 7 and 8, 2021. On June 25, 2021, it
conducted an in camera interview of G.B.
At the time of the hearing, G.B. was 13 years old and had just
completed seventh grade. G.B. is, by all accounts, an excellent student. Father
testified that G.B. had been recently accepted into the College Credit Plus program
at Cuyahoga Community College through which she could begin earning college
credit. Mother and Father testified that G.B. is “friendly” and “social” but is “very
introverted” and has a small group of close, long-term friends.
At the time of hearing, Mother and her husband, M.T., lived in
Jefferson, Ohio with their three children, ages 9, 4 and 2. Father and his wife, E.H.,
lived in Lakewood, Ohio with their 5-year-old son and E.H.’s son from a prior
relationship, age 10. Mother is a stay-at-home parent. Father is a paramedic who
works from 7 p.m. to 7 a.m. on two-night rotations (i.e., two nights on, two nights
off) during the week and on Saturday, Sunday and Monday every other weekend.
When Father is working during his parenting time, E.H. supervises G.B. Father
testified that G.B. has a “good” relationship with E.H.
Father argued that he should be designated the residential parent for
school purposes because he has always been “very active” at G.B.’s school, e.g.,
attending parent-teacher conferences, volunteering for field trips, assisting at class
parties and attending school functions and has supported G.B.’s participation in
extracurricular activities in which she has demonstrated an interest. Father stated
that, prior to Mother’s move to Jefferson, i.e., from preschool until the end of fifth
grade, Mother was somewhat involved in G.B.’s school activities and that they
generally attended parent-teacher conferences together but that Mother was “[n]ot
as involved as [he] was” and that Mother’s involvement in G.B.’s academic activities
dropped off following her move to Jefferson. Mother acknowledged that she did not
attend G.B.’s parent-teacher conferences in 2019, 2020 or 2021 and that she did not
attend G.B.’s DARE graduation ceremony in February 2019, G.B.’s fifth grade school
graduation party in May 2019 or a school breakfast during which G.B. was given an
award for good character in October 2019. Mother stated that she did not attend
these functions because they occurred during Father’s parenting time and Father
attended them.
Father testified that when Mother lived in Lakewood and was the
residential parent for school purposes, although G.B. never had any excessive
absences or “tardies” in any particular school year, at “not infrequent times,” G.B.
would miss school during Mother’s parenting time when there did not seem to be a
legitimate reason for her to have missed school. Father stated that he had no other
concerns or issues regarding Mother’s ability to be the residential parent for school
purposes when Mother lived in Lakewood.
With respect to G.B.’s extracurricular activities, Father claimed that
while he supported and encouraged G.B.’s participation in extracurricular activities,
Mother did not have an interest in them and that even prior to her move to Jefferson
often refused to take G.B. to scheduled activities because she was “too busy” or it
was “inconvenient” for her to do so. In such cases, Father, his mother or E.H. would
take G.B. to, or pick G.B. up, from her activities. Father stated that although Mother
had not previously expressed an interest in signing G.B. up for activities, after
Mother moved to Jefferson, she signed G.B. up for a number of activities in
Jefferson, including a dance class and art classes, that conflicted with activities in
which G.B. was already participating in Lakewood.
Father testified that G.B. currently plays recreational league soccer
through the Lakewood Soccer Association and attends an aerial dance class once a
week. Father testified that G.B. had played soccer since she was three or four years
old and that G.B.’s soccer teammates were her classmates. Father stated that G.B.
missed recreation league soccer games in 2021 because Mother did not want to drive
her back to Lakewood to attend the games. He stated that G.B. was “rather
disappointed at having to miss anything” but that he and Mother ultimately worked
out a schedule so that G.B. could play every other game. G.B. ultimately played
soccer four weekends, and Mother attended two of her games.
Father indicated that, in the past, G.B. had also played recreational
softball and that she had taken ballet classes for several years but switched to aerial
dance after E.H. started teaching aerial dance classes because G.B. “found it more
attractive.” Father testified that G.B. had expressed an interest in continuing with
soccer, pursuing track and field and resuming aerial dance performances in the
future.
Father testified that his “biggest concern” regarding Mother being
designated residential parent for school purposes was G.B.’s “feelings on moving”
based on her “particular connection to Lakewood.” Father stated that G.B. was “very
attached to the [Lakewood] school system” and had been “very vocal” for the past
two years “about not wanting to have to * * * leave that environment, leave that
school system.” Father indicated that he believed Mother could meet G.B.’s
educational needs but was concerned that if G.B. was “forced into an environment
she didn’t want to be in,” she would not be “as happy” or “as comfortable” and that
her “overall performance” would suffer. Father also claimed that keeping G.B. in
Lakewood City Schools was preferable because Jefferson was a slightly “less-rated
school system” and did not have the same types of clubs and diversity that Lakewood
offers.
Father claimed that Mother did not take steps to connect with G.B.
when G.B. was away from Mother. He testified that although the shared-parenting
plan grants each parent “free access” to G.B. for telephone calls during the other’s
parenting time, Mother rarely called G.B. on the telephone, i.e., “[m]aybe once every
other month.” G.B. does not have her own cell phone. Mother testified that she did
not speak with G.B. often on the telephone because G.B. does not like to talk on the
phone. Both parents acknowledged that they do not communicate effectively with
one another via telephone and, therefore, communicate primarily via text or email.
Mother testified that she moved to Jefferson in June 2019 due to her
husband’s employment with Verizon Wireless. Mother stated that M.T.’s home
office is in Girard, Pennsylvania and that he travels regionally in or around Erie,
Pennsylvania during the workday. Prior to the move, M.T. had a two-hour commute
to work. Mother testified that her family now lives in a large home in a residential
community on seven acres where G.B. has her own room and bathroom. Mother
stated that although she considered G.B.’s feelings in deciding whether to move,
G.B.’s feelings were not controlling; whether the family moved was not G.B.’s
decision to make. Mother stated that once she and M.T. decided to move, Mother
took steps to have G.B. see a therapist so she could have someone “unbiased” with
whom to talk. Mother stated that she “didn’t want [G.B.] to feel put in the middle
like it was her choice to make a decision when it wasn’t her choice.”
Father testified that after Mother moved to Jefferson, Mother
requested that Father find a therapist for G.B. near Lakewood and that he so
complied. Both parents testified that G.B. had been seeing the same therapist in
Lakewood once or twice a month for the past two years and that G.B.’s anxiety over
the parties’ custody dispute was the primary reason G.B. had been continuing
therapy.
With respect to G.B.’s extracurricular activities, Mother stated that
G.B. “wants to do many different things.” Regarding G.B.’s participation in sports,
Mother testified that in 2019, Mother brought G.B. back and forth for her softball
games in Lakewood and that in 2020, G.B. participated in softball in Lakewood and
in Jefferson. Mother stated that she hoped to enroll G.B. in dance classes in
Jefferson. Mother acknowledged that, at times, in the past, she had been unwilling
to pick G.B. up from her dance classes because it was “inconvenient,” i.e., the classes
ended at 7 or 8 p.m. and she needed to tend to her other children.
Mother was concerned about G.B.’s participation in aerial dance
activities. Mother testified that, at first, she was supportive of G.B.’s participation
in aerial dance because Mother thought it would improve G.B.’s relationship with
E.H., who was teaching the aerial dance classes which G.B. attended. However,
Mother later came to believe that G.B.’s participation in aerial dance was contrary
to her best interest. Mother expressed concern regarding the outfits G.B. wore when
engaging in aerial dance activities and testified that before E.H. opened her own
studio, G.B. had attended aerial dance classes at a studio that conducted “pole
dancing” classes in an adjacent room at the same time as G.B.’s classes. E.H.
testified that the classes were conducted in separate rooms with separate entrances
and there was no contact between participants in the two classes.
Mother also claimed that images of G.B. engaging in aerial dance were
posted on the internet and on social media without Mother’s consent and that G.B.
had participated in evening and private aerial dance performances with E.H. at
which Father was not present but for which E.H. was compensated. According to
Mother, one of these performances involved G.B. and E.H. “interlocking bodies”
during a routine. Mother testified that, at other times, G.B. had performed aerial
dance routines involving an apparatus that included a pole and that she had once
performed to a song that included references to alcohol which Mother believed was
inappropriate for a child of G.B.’s age.
Father and E.H. denied that the aerial dance performances in which
G.B. had engaged were immoral, sexually suggestive or in any way inappropriate for
a child her age. Father testified that he was supportive of all of the performances in
which G.B. had participated and that he had no objection to E.H.’s use of G.B.’s
image in her commercial activities.1
1Although Mother objected to E.H.’s posting of G.B.’s images on the internet,
Mother admitted that she had previously posted videos of G.B. on her own public,
monetized YouTube Channel, which she claimed was “geared towards children.”
Mother testified that she was concerned that E.H. was “replacing
[her] as mother” and was concerned about G.B. being in the care of E.H. when
Father was working nights and weekends because Mother did not “trust her
judgment.” Mother stated that in January 2019, E.H. dyed G.B.’s hair blue in
violation of the school dress code that prohibited “unnatural” hair color. Father
testified that he did not have an issue with the hair dye, that it was temporary and
washed out within a few days, that E.H. had added streaks of color to G.B.’s hair on
several prior occasions without objection by Mother and that the school policy was
not enforced because it was “very common” for children in the elementary school or
middle school to have colored hair. Father stated that he would allow G.B. to color
her hair again “[i]f that’s what [G.B.] wants.” Mother stated that Father told her if
she had an issue with it, “to go file a motion in Court.” Mother testified that, in her
view, Father is, at times, too deferential to G.B. and that “with children you kinda
have to set some boundaries and stand firm.” She also stated that “on moral things”
she is “more conservative” than Father.
Disputes also arose between the parties regarding requested
adjustments to the parenting-time schedule. Mother testified that when she lived in
Lakewood, the parties did not strictly follow the parenting-time schedule in the
shared-parenting plan and that she would often accommodate Father’s requests for
additional parenting time with G.B. However, Mother claimed that after she moved
to Jefferson, Father had often refused to accommodate her requests for adjustments
to the parenting-time schedule. One such incident occurred in November 2019,
which resulted in Mother calling the police. Mother testified that in August 2019,
she had requested that Father allow her “vacation time” with G.B. over the
Thanksgiving holiday so that G.B. could visit with her grandparents who would be
coming in from out of town. Mother claimed that, although the shared-parenting
plan specified that Father was to have parenting time with G.B. on Thanksgiving and
the following weekend, Father had agreed that Mother could have parenting time
with G.B. that weekend. When Mother went to pick G.B. up the day after
Thanksgiving, however, Father refused to allow Mother to take G.B. Mother
testified that she was “distraught” and “didn’t know what else to do,” so she called
the police. Father claimed that he also had family coming in from out of town that
weekend and had, therefore, made “multiple offers” to Mother “to split the time” so
that G.B. could spend time with both families that week. Father stated that when
Mother rejected his offers of compromise, he refused to give up any of his scheduled
parenting-time. Father testified what when Mother showed up at his door and told
him she was taking G.B., Father told her G.B. was not going with her. The police
refused to get involved in the parties’ dispute and told Mother to leave the property.
Mother testified that she had had multiple conversations with G.B.
regarding G.B.’s desire to continue attending school in Lakewood and G.B.’s reasons
for wishing to do so. Mother acknowledged that G.B. could have some difficulties
making the transition to a new school, making new friends and adjusting to new
sports teams in Jefferson but that she believed G.B. could do so successfully with the
proper support, including continuing to see her therapist. Mother indicated that she
had also tried to get G.B. involved in some activities in the Jefferson community so
that she could meet people.
Mother asserted that she should be designated the residential parent
for school purposes because she was a stay-at-home mother while Father worked
nights and every other weekend and because she believed G.B.’s “well-being and her
morals and what she’s taught and her boundaries will be different and better” if G.B.
spent more time with Mother. Mother stated that if she were designated the
residential parent for school purposes, she would be “flexible with [G.B.] seeing her
dad” and would be willing to accommodate Father’s requests for additional
parenting time beyond what was provided for in the modified shared-parenting
plan.
Mother testified that she believed her relationship with G.B. had
become “strain[ed]” since Father was designated the temporary residential parent
for school purposes because she does not see G.B. as much as she used to and
because Father “doesn’t agree with me and does what he wants and I’m left out of
the decision-making.” Mother stated that she believed Father “manipulates [G.B.]
to feel a certain way,” that Mother was “starting to not trust” Father and that Mother
believed Father and E.H. were “keeping things” from her. For example, Mother
claimed that she was unaware that G.B. was still attending aerial dance classes.
Father denied withholding any information about G.B. from Mother.
After the parties presented their evidence, the juvenile court heard
from the guardian ad litem. The guardian ad litem stated she “maintained” her
recommendation as stated in her February 26, 2020 written report, i.e., that she
believed it was in G.B.’s best interest for her to be in the “care and control of her
mother” and that Mother be designated the residential parent for school purposes.
The guardian ad litem indicated that she made that recommendation,
notwithstanding that G.B. had “not wavered” from her desire to remain in Lakewood
City Schools and notwithstanding that G.B. had been diagnosed with anxiety and
had been seeing a therapist. The guardian ad litem indicated that G.B. is “a pleaser,”
that “she doesn’t want anyone to be upset with her” and that she has “lots of anxiety”
over “these issues.” The guardian ad litem indicated that most of G.B.’s therapy
sessions “center on school” and that G.B. was being treated with “soft therapy” in an
attempt to develop coping skills to better “deal with the situation.”
The guardian ad litem stated that G.B. was an “excellent student
academically,” that she had no special needs and that she did not see any barriers to
G.B.’s academic success in whatever school district she attended. She noted that
G.B. is friendly, but “more introverted,” and has a small group of friends. She
indicated that G.B. “didn’t have any adverse reaction to being questioned about a
change in school district” but that her “comfort” was in Lakewood City Schools
“because that’s what she knows.” The guardian ad litem stated that she believed it
would “benefit” G.B. for her “to know that she’ll be successful wherever she goes.”
The guardian ad litem indicated that the primary basis for her
recommendation was her concern regarding G.B.’s relationship with Mother. She
stated that she believed G.B.’s relationship with Mother had “deteriorated,” that
there was “some estrangement from not being together” and that she believed it was
“very valuable to have a positive relationship with one’s mother.”
The guardian ad litem indicated that Mother and her family moved
for “a good reason” to “enhance their lifestyle” and “afford all of the children a more
positive childhood experience,” that Mother is currently a stay-at-home parent with
no plans to return to full-time employment for at least another three or four years
and that Mother lives in a “lovely home” in a residential community.
The guardian ad litem reported that she does not “have any issue with
either parent as a parent.” She indicated that “[t]here are so many positives here,”
i.e., both parents are “competent parents,” both parents will be able to meet G.B.’s
educational, health care and mental health needs and G.B. has positive relationships
with her stepparents and her siblings. The guardian ad litem stated, however, that
in her view, when Father was named the temporary residential parent for school
purposes, “he wasn’t as flexible as he could be” and that when Mother was the
residential parent for school purposes, she was “very flexible.” She noted that Father
“wants to please his daughter” and do what she wants, but that “this isn’t a child’s
issue”; “[t]his is a parents’ issue.”
The guardian ad litem stated that she had last spoken with G.B. in
January 2020 — nearly 18 months before the hearing — and could not recall when
she had last spoken with Mother or Father. The guardian ad litem reported that she
had last spoken with G.B.’s therapist on June 2, 2021. The guardian ad litem stated
that she was not concerned by her lack of recent contact with the parents or G.B.
because she had learned, in talking with G.B.’s therapist, that nothing had changed.
The guardian ad litem indicated that she did not believe G.B.
attending school in Jefferson would negatively impact her relationship with Father
because she would have regular access to and visitation with Father and is “very well
bonded * * * and connected to her father.” The guardian ad litem stated that Father
had had more involvement with G.B.’s therapist and school, particularly in the past
two years.
The guardian ad litem acknowledged that there were communication
issues between Mother and Father and that, in her view, Father “had the power
position and stood on that power position” in communicating with Mother. She
stated that she would not characterize Father as “bullying” Mother but indicated that
she believes Father is a “dominant parent” and that the dynamic changed for the
family when Father was designated the temporary residential parent for school
purposes. She stated that although both parents are “well-intentioned,” they “lack
insight as to the dynamics that [have] been created and the effected influence it has
had on their daughter.”
The guardian ad litem recommended that shared parenting be
maintained and that the parents have equal parenting responsibility because they
are both competent and intelligent, are supportive of G.B. and want what is best for
her and it would benefit G.B. to have her parents maintained as equal to one another.
The Juvenile Court’s Decision
On July 26, 2021, the juvenile court issued its decision. The juvenile
court found that there was no change in circumstances in the child or parents that
warranted a modification of the shared-parenting plan as it related to the
designation of the residential parent for school purposes but found that there was a
change of circumstances that warranted modification of the shared-parenting plan
as it relates to parenting time. The juvenile court stated:
The Court does not find that based on the facts that were known to
the Court at the time of the prior decree, that a change in circumstances
has occurred in the child or for either of the parents subject to a
parenting decree, and that a modification of the residential
parent for school purposes is necessary to serve the best
interests of the child.
The Court does find that based on facts have arisen since the prior
decree, that a change in circumstances has occurred in the child and
the parents subject to a parenting decree, and that a modification of
the parenting plan as it relates to parenting time is necessary
to serve the best interests of the child.
(Emphasis sic.)
The juvenile court denied Mother’s motion to be designated sole
residential parent and legal custodian and granted the parties’ motions to modify
the shared-parenting plan, in part. The juvenile court continued the designation of
Mother as the residential parent for school purposes and modified the parenting-
time schedule, granting Father parenting time on alternate weekends that coincided
with Father’s work schedule during the school year. The juvenile court also set forth
a detailed holiday and vacation parenting-time schedule. The juvenile court found
that the remaining provisions of the original shared-parenting plan were
“appropriate and in the best interest of the child.”
Father appealed, raising the following four assignments of error for
review:
First Assignment of Error: The trial court abused its discretion when it
found that no change in circumstances has occurred in the child for
purposes of finding that Mother should be designated the residential
parent for school purposes because the court’s decision was not
supported by a substantial amount of credible and competent evidence.
Second Assignment of Error: The trial court abused its discretion by
designating Mother as the residential parent for school purposes
because the court’s decision was not supported by a substantial amount
of credible and competent evidence.
Third Assignment of Error: The trial court abused its discretion when
it found that a change of circumstances has occurred and that a
modification of the parenting [plan] as it relates to parenting time is
necessary to serve the best interests of the child without making a
finding that the harm likely to be caused by changing the child’s
environment is outweighed by the benefits of the change, as required
by R.C. 3109.04(E)(1)(a).
Fourth Assignment of Error: The trial court abused its discretion by
failing to consider the wishes of the child as it relates to allocation of
parental rights and responsibilities, and specifically, the designation of
residential parent for school purposes, as required by R.C.
3109.04(F)(1)(b).
Father’s assignments of error are interrelated. For ease of discussion,
we address his assignment of error out of order and together where appropriate.
Law and Analysis
Modification of Shared-Parenting Plan
R.C. 3109.04(E) governs the modification of shared-parenting plans
and decrees. R.C. 3109.04(E)(1)(a) provides, in relevant part:
(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:
(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.
(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.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to
the child.
(Emphasis added.)
R.C. 3109.04(E)(2)(b) provides:
In addition to a modification authorized under division (E)(1) of this
section: * * *
(b) The court may modify the terms of the plan for shared
parenting approved by the court and incorporated by it into the
shared parenting decree upon its own motion at any time if the
court determines that the modifications are in the best interest
of the children or upon the request of one or both of the parents
under the decree. Modifications under this division may be
made at any time. The court shall not make any modification to
the plan under this division, unless the modification is in the best
interest of the children.
(Emphasis added.)
In his first and third assignments of error, Father contends that the
juvenile court failed to properly apply R.C. 3109.04(E)(1)(a). Specifically, in his first
assignment of error, Father argues that the juvenile court abused its discretion in
determining that there was “no change in circumstances” as it related to the
designation of the residential parent for school purposes. He asserts that the
juvenile court’s order is contradictory on its face and that “it goes against common
sense and logic” for the court to find no change in circumstances in one part of its
order and the existence of a change in circumstances in another part of its order. He
further argues that substantial, competent and credible evidence of eight “generally
uncontroverted facts”2 demonstrates that a change in circumstances occurred for
G.B. and her parents since the date of the original shared-parenting decree and that
the juvenile court abused its discretion in “ignoring” those facts when reaching its
decision.
2 According to Father, these eight facts are: (1) at the time of the prior order G.B.
was two years old and not yet in school; while, at the time of the hearing, G.B. was 13 and
had just completed the seventh grade; (2) since the time of the prior order, both parents
had gotten married and had children with their respective spouses; (3) the child’s
relationship with Mother had become “strained” in “recent years”; (4) G.B. is now
engaged in multiple extracurricular activities; (5) Mother’s relocation to Jefferson
“rendered many components of the prior order either impossible or untenable and
unsustainable”; (6) Mother did not attend school functions for G.B.; (7) G.B. has required
mental health treatment and (8) throughout the post-decree litigation, G.B.’s wishes to
live with Father and continue attending school in Lakewood have remained consistent.
In his third assignment of error, Father argues that the juvenile court
abused its discretion in designating Mother as residential parent for school purposes
and modifying the parenting-time schedule without making a finding under R.C.
3109.04(E)(1)(a)(iii) that “the harm likely to be caused by a change of environment
is outweighed by the advantages of the change of environment” to G.B.
The question of whether a trial court correctly interpreted and applied
a statute is a question of law that we review de novo. See, e.g., State v. Asadi-Ousley,
8th Dist. Cuyahoga Nos. 104714 and 105103, 2017-Ohio-937, ¶ 13; Jones v. N&S
Auto Sales, Inc., 8th Dist. Cuyahoga No. 99172, 2013-Ohio-2468, ¶ 13; see also
Myers v. Wade, 10th Dist. Franklin No. 16AP-667, 2017-Ohio-8833, ¶ 8.
R.C. 3109.04(E)(1)(a) and 3109.04(E)(2)(b) provide “significantly
different standards for modification.” Fisher v. Hasenjager, 116 Ohio St.3d 53, 56,
2007-Ohio-5589, 876 N.E.2d 546, ¶ 32. R.C. 3109.04(E)(1)(a) provides for
modification of “a prior decree allocating parental rights and responsibilities for the
care of children,” including a shared-parenting decree. (Emphasis added.)
‘“Typically, this arises when a parent wishes to change legal custody or become the
sole residential parent and legal custodian rather than sharing custody.”’ In re F.T.,
2020-Ohio-1624, 154 N.E.3d 245, ¶ 52 (8th Dist.), quoting Gessner v. Gessner, 2d
Dist. Miami No. 2017-CA-6, 2017-Ohio-7514, ¶ 36. Under R.C. 3109.04(E)(1)(a), a
court may change the residential parent designated by a prior decree only if it finds
(1) a change in circumstances of the child or one or both parents, (2) the
modification is in the best interest of the child and (3) that one of three additional
factors specified in R.C. 3109.04(E)(1)(a)(i)-(iii) applies. As the court explained in
Fisher, the General Assembly intended the standard under R.C. 3109.04(E)(1)(a) to
be a “high standard” because it was attempting to ““‘spare children from a constant
tug of war between their parents who would file a motion for change of custody each
time the parent out of custody thought he or she could provide the child a “‘better’”
environment.’”” Fisher at ¶ 33-34, quoting Davis v. Flickinger, 77 Ohio St.3d 415,
418, 674 N.E.2d 1159 (1997), quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445
N.E.2d 1153 (10th Dist.1982).
R.C. 3109.04(E)(2)(b), on the other hand, provides for the
modification of the terms of a shared-parenting plan. Under R.C. 3109.04(E)(2)(b),
the court — on its own initiative or at the request of one or both parents — may
modify the terms of a shared-parenting plan previously approved by the court and
incorporated into the shared-parenting decree where the modification is in the
child’s best interest. Thus, to modify the terms of a shared-parenting plan under
R.C. 3109.04(E)(2)(b), the court need only find that the modification is in the best
interest of the child; no finding of a change in circumstances is required.
In Fisher, the Ohio Supreme Court explained the distinction between
a shared-parenting “plan” and a shared-parenting “decree” as those terms are used
in R.C. 3109.04, as follows:
Within the custody statute, a “plan” is statutorily different from a
“decree” or an “order.” A shared-parenting order is issued by a court
when it allocates the parental rights and responsibilities for a child.
R.C. 3109.04(A)(2). Similarly, a shared-parenting decree grants the
parents shared parenting of a child. R.C. 3109.04(D)(1)(d). An order
or decree is used by a court to grant parental rights and responsibilities
to a parent or parents and to designate the parent or parents as
residential parent and legal custodian.
However, a plan includes provisions relevant to the care of a
child, such as the child’s living arrangements, medical care, and school
placement. R.C. 3109.04(G). A plan details the implementation of the
court’s shared-parenting order. For example, a shared-parenting plan
must list the holidays on which each parent is responsible for the child
and include the amount a parent owes for child support.
Fisher at ¶ 29-30. The court further explained:
The standard in R.C. 3109.04(E)(2)(b) for modification of a
shared-parenting plan is lower because the factors contained in a
shared-parenting plan are not as critical to the life of a child as the
designation of the child’s residential parent and legal custodian. The
individual or individuals designated the residential parent and legal
custodian of a child will have far greater influence over the child’s life
than decisions as to which school the child will attend or the physical
location of the child during holidays. Further, factors such as the
physical location of a child during a particular weekend or holiday or
provisions of a child’s medical care are more likely to require change
over time than the status of the child’s residential parent and legal
custodian.
Id. at ¶ 36; see also Bruns v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787, 168 N.E.3d
396, ¶ 11 (“R.C. 3109.04(E)(1)(a) allows for modification of a shared-parenting
decree. R.C. 3109.04(E)(2)(a) and (b) allow for the modification of the terms of a
shared-parenting plan”) (emphasis deleted).
Father argues that the “higher standard” reserved for modification of
a prior decree allocating parental rights and responsibilities under R.C.
3109.04(E)(1)(a) should apply here because this case “involves the relocation of one
parent to a community more than 60 miles away,” rather than to a “neighboring
town or district,” and because G.B. is a teenager with “significant connection[s] to
her school and community.”
However, this court has held that where the trial court only modifies
parenting time and the designation of the residential parent for school purposes, the
“lower standard” under R.C. 3109.04(E)(2)(b) applies, i.e., the trial court need only
find that the modification is in the best interest of the child. See, e.g., In re F.T.,
2020-Ohio-1624, 154 N.E.3d 245, at ¶ 58-59; In re E.B., 2020-Ohio-4139, 157
N.E.3d 826, ¶ 74-76 (8th Dist.); In re A.Z., 8th Dist. Cuyahoga No. 108627, 2020-
Ohio-2941, ¶ 47; see also Marimon v. Marimon, 1st Dist. Hamilton No. C-210137,
2021-Ohio-3437, ¶ 15-16 (where trial court’s decision only modified the designation
of the residential parent for school purposes, it did not involve a modification of an
“order” or “decree” of the allocation of parental rights; therefore, trial court’s
decision granting motion to modify the terms of the shared-parenting plan to change
the residential parent for school purposes was governed by R.C. 3109.04(E)(2)(b));
Fritsch v. Fritsch, 1st Dist. Hamilton No. C-140163, 2014-Ohio-5357, ¶ 20-21 (trial
court properly applied the best interest of the child standard in R.C.
3109.04(E)(2)(b) to modify the designation of the residential parent for school
purposes); Palichat v. Palichat, 2d Dist. Greene No. 2015-CA-42, 2019-Ohio-1379135 N.E.3d 389, ¶ 14 (“[P]arenting time, child support, and the designation of
residential parent for school purposes have all been held to be terms of a shared
parenting plan that only require a ‘best interest’ evaluation for modification.”),
Gessner, 2017-Ohio-7514, at ¶ 35 (modification of parenting time should be
evaluated under R.C. 3109.04(E)(2)(b)); Ralston v. Ralston, 3d Dist. Marion No. 9-
08-30, 2009-Ohio-679, ¶ 17 (where trial court retained both parents as residential
parents and only modified the designation of residential parent for school purposes,
trial court was required to apply R.C. 3109.04(E)(2)(b) rather than R.C.
3109.04(E)(1)(a)); Hall v. Hall, 4th Dist. Adams No. 16CA1030, 2017-Ohio-8968,
¶ 26-27, 29 (modification of parenting-time schedule was governed by best interest
standard in R.C. 3109.04(E)(2)(b)); Myers, 2017-Ohio-8833, at ¶ 12-13 (designation
of residential parent for school purposes and amount of parenting time involved
modifications to shared-parenting plan governed by R.C. 3109.04(E)(2) not
3109.04(E)(1)(a)); In re O.M.R., 11th Dist. Trumbull No. 2013-T-0057, 2014-Ohio-
4739, ¶ 9 (“R.C. 3109.04(E)(2)(b) controls modifications of a shared parenting plan
that change or designate a residential parent for school purposes.”); In re E.L.C.,
12th Dist. Butler No. CA2014-09-177, 2015-Ohio-2220, ¶ 42-45 (juvenile court did
not err when it applied R.C. 3109.04(E)(2)(b) to change the designation of
residential parent for school purposes in the shared-parenting plan from Mother to
Father after finding that the modification was in the child’s best interest and without
finding a change in circumstances of the child or either parent). But see Herron v.
Herron, 9th Dist. Summit No. 29683, 2021-Ohio-2223, ¶ 9 (“motion to modify
parenting time under a shared parenting plan is reviewed under R.C.
3109.04(E)(1)(a) because the motion seeks to reallocate the parental rights and
responsibilities set forth in a prior decree”).
Indeed, it was the shared-parenting plan that included the provision
that led to the filing of the motions in this case. The parties’ shared-parenting plan
stated, in relevant part:
The Shared Parenting Plan shall further resolve the residential status
of the minor child and it is agreed that Mother is the residential parent
for school purposes, only, and both the mother and father are the
residential parents for all other purposes. If mother moves from
Lakewood, OH then if the parties can’t agree they will file a motion to
determine residential parent for school purposes, only.
In this case, by designating Mother as the residential parent for school
purposes and modifying the parenting-time schedule, the juvenile court merely
modified terms of the parties’ shared-parenting plan that had been incorporated
into the shared-parenting decree. There is no language in the juvenile court’s
July 26, 2021 order to suggest the court modified the decree’s allocation of shared
parental rights and responsibilities. Under the juvenile court’s July 26, 2021 order,
both parents were still designated as residential parents and legal custodians of G.B.
Accordingly, R.C. 3109.04(E)(1)(a) does not apply, and the juvenile court was not
required to find a change in circumstances of the child or either parent or that the
harm likely to be caused by a change of environment was outweighed by the
advantages of the change of environment to G.B. Rather, the “lower standard”
under R.C. 3109.04(E)(2)(b) applied, and the juvenile court only had to determine
what was in the best interest of G.B. See, e.g., In re E.B., 2020-Ohio-4139, 157
N.E.3d 826, at ¶ 74-76; see also In re E.L.C., 2015-Ohio-2220, at ¶ 42-45 (R.C.
3109.04(E)(2)(b) permitted court to modify terms of shared-parenting plan without
having to find a change in circumstances of the child or either parent even though,
as a result of the modification of the terms of the shared-parenting plan, the child
would no longer “reside primarily with Mother,” as provided for in the parties’
original shared-parenting plan).
Father’s first and third assignments of error are overruled.
Best Interest of the Child
In his second and fourth assignments of error, Father argues that the
juvenile court abused its discretion in determining that it was in G.B.’s best interest
to designate Mother the residential parent for school purposes. In his second
assignment of error, Father contends that there is no “substantial amount of credible
and competent evidence” in the record to support the juvenile court’s decision that
it was in G.B.’s best interest to designate Mother the residential parent for school
purposes. In his fourth assignment of error, Father contends that the juvenile court
abused its discretion because it failed to consider G.B.’s wishes in determining what
was in her best interest as required under R.C. 3109.04(F)(1)(b).
R.C. 3109.04(F)(1) provides:
In determining the best interest of a child pursuant to this section,
whether on an original decree allocating parental rights and
responsibilities for the care of children or a modification of a decree
allocating those rights and responsibilities, the court shall consider all
relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child’s wishes and concerns as
to the allocation of parental rights and responsibilities concerning the
child, the wishes and concerns of the child, as expressed to the court;
(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect the
child's best interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent
pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being an
abused child or a neglected child; whether either parent, in a case in
which a child has been adjudicated an abused child or a neglected child,
previously has been determined to be the perpetrator of the abusive or
neglectful act that is the basis of an adjudication; whether either parent
or any member of the household of either parent previously has been
convicted of or pleaded guilty to a violation of section 2919.25 of the
Revised Code or a sexually oriented offense involving a victim who at
the time of the commission of the offense was a member of the family
or household that is the subject of the current proceeding; whether
either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any offense
involving a victim who at the time of the commission of the offense was
a member of the family or household that is the subject of the current
proceeding and caused physical harm to the victim in the commission
of the offense; and whether there is reason to believe that either parent
has acted in a manner resulting in a child being an abused child or a
neglected child;
(i) Whether the residential parent or one of the parents subject to a
shared-parenting decree has continuously and willfully denied the
other parent’s right to parenting time in accordance with an order of
the court;
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.3
Decisions in child custody matters are among “the most difficult and
agonizing decisions a trial judge must make.” Davis, 77 Ohio St.3d at 418, 674
N.E.2d 1159. Trial courts have “wide latitude” in their consideration of the evidence
when making such decisions. Id. at 418. Accordingly, we review a trial court’s
decision in a child custody matter, including whether it is in a child’s best interest to
modify a shared-parenting plan, for abuse of discretion. See, e.g., Perrin v. Perrin,
8th Dist. Cuyahoga No. 109376, 2021-Ohio-2581, ¶ 34; In re E.O.T., 8th Dist.
Cuyahoga No. 107328, 2019-Ohio-352, ¶ 39; In re E.B., 2020-Ohio-4139, 157 N.E.3d
826, at ¶ 78; see also Hall, 2017-Ohio-8968, at ¶ 19.
A trial court abuses its discretion when its decision is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
3 Although R.C. 3109.04(F)(1), by its terms, applies to the modification of
“decrees,” this court and others have also applied it to considerations of whether the
modification of a shared-parenting plan is in a child’s best interest. See, e.g., In re F.T.,
2020-Ohio-1624, 154 N.E.3d 245, at ¶ 59-60; In re E.B., 2020-Ohio-4139, 157 N.E.3d
826, at ¶ 76-78; Hall, 2017-Ohio-8968, at ¶ 32; Wilcox v. Iiams, 3d Dist. Logan No. 8-18-
64, 2019-Ohio-3030, ¶ 18-19, 22, 24. But see Marimon, 2021-Ohio-3437, at ¶ 22
(“[N]othing in R.C. 3109.04(E)(2)(b) explicitly requires the trial court to examine the
factors in R.C. 3109.04(F)(1), and R.C. 3109.04(F)(1) by its terms applies to ‘an original
decree allocating parental rights and responsibilities for the care of children or a
modification of a decree allocating those rights and responsibilities’— not modifications
of terms of the shared-parenting plan. * * * Therefore, although the trial court was
required to consider the children’s best interest in modifying the terms of the shared-
parenting plan with regard to school placement, the trial court was not required to
specifically consider the factors enumerated in R.C. 3109.04(F)(1).”).
N.E.2d 1140 (1983). A decision is unreasonable when “no sound reasoning process”
supports that decision. AAAA Ents. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An abuse of
discretion also occurs when a court ‘“applies the wrong legal standard, misapplies
the correct legal standard, or relies on clearly erroneous findings of fact.’” Mayer v.
Mayer, 8th Dist. Cuyahoga No. 109103, 2020-Ohio-4993, ¶ 8, quoting Thomas v.
Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).
Consideration of G.B.’s Wishes
With respect to G.B.’s wishes, Father criticizes the juvenile court
because (1) it failed to set forth specific findings of fact with respect to G.B.’s wishes
in its July 26, 2021 judgment entry and (2) did not expressly state, in its July 26,
2021 judgment entry, that it considered G.B.’s wishes “regarding which parent
should be designated the residential parent for school purposes” and instead stated
only that it considered “[t]he child’s wishes as to parenting time by the parent who
is not the residential parent for school purposes.”
Although a trial court is required to consider all of the relevant factors
in determining what is in a child’s best interest, it is not necessary that the juvenile
court set forth its analysis of each such factor in its judgment entry. See, e.g., In re
E.O.T., 2019-Ohio-352, at ¶ 45; see also Hall, 2017-Ohio-8968, at ¶ 33 (“A trial court
is not required to provide a detailed analysis of the child’s best interest before
modifying the terms of a shared parenting plan. * * * Rather, ‘a trial court
substantially complies with R.C. 3109.04(E)(2)(b) if its reasons for modifying the
terms of a shared parenting plan are apparent from the record; i.e., if it is apparent
from the record that the modification is in the child’s best interest.’”), quoting
Bishop v. Bishop, 4th Dist. Washington No. 08CA44, 2009-Ohio-4537, ¶ 38;
Giovanini v. Bailey, 9th Dist. Summit No. 28631, 2018-Ohio-369, ¶ 13 (“A trial court
is not required to explicitly make findings of fact as to the factors under R.C.
3109.04(F)(1). * * * ‘Instead, it must be apparent from the record that the trial court
considered the best interest factors in its decision.’”), quoting Phillips v. Phillips, 9th
Dist. Lorain No. 13CA010358, 2014-Ohio-248, ¶ 8; Brandt v. Brandt, 11th Dist.
Geauga No. 2012-G-3064, 2012-Ohio-5932, ¶ 13 (“Though there should be some
indication in the judgment entry that the trial court considered the best interests of
the child pursuant to R.C. 3109.04(F), there is no requirement it make specific
findings in its entry as to each and every factor.”).4
4 This is particularly so where, as here, the factor at issue involves consideration of
a child’s wishes as revealed during an in camera interview with the juvenile court, which
is generally considered confidential. See, e.g., In re T.B.-G., 8th Dist. Cuyahoga No.
106713, 2018-Ohio-4116, ¶ 4; In re A.K., 2d Dist. Champaign No. 2013-CA-63, 2015-Ohio-
29, ¶ 39, fn. 4; Lawson v. Lawson, 5th Dist. Licking No. 13-CA-8, 2013-Ohio-4687, ¶ 56;
see also In re T.M.M., 2017-Ohio-9219, 102 N.E.3d 558, ¶ 24-28 (7th Dist.) (magistrate
did not abuse discretion in failing to detail what was learned from child during in camera
interview other than his preference that he remain living with his mother under the
current arrangement; “a trial court is not required to issue findings of fact pertaining to
an in camera interview unless the court decides not to determine the child’s wishes and
concerns”); Stevenson v. Kotnick, 11th Dist. Lake No. 2010-L-063, 2011-Ohio-2585, ¶ 27
(declining to disclose the details of child’s statements made during in camera interview
because ‘“[i]n a custody dispute, the best interest of the child is cardinal. R.C.
3109.04(B)(2)(c) makes clear the legislative intent to provide an in camera atmosphere
free of influence, pressure and anxiety so that, if appropriate, a child can participate in
the determination of his or her custody. * * * If a child believes that every word he or she
speaks to the judge may later be read by his or her parents, the child may withhold
information and the court’s decision-making process may thereby be compromised.’”),
quoting Chapman v. Chapman, 2d Dist. Montgomery No. 21652, 2007-Ohio-2968, ¶ 28;
cf. Myers v. Myers, 170 Ohio App.3d 436, 2007-Ohio-66, 867 N.E.2d 848, ¶ 50 (5th Dist.)
In this case, the juvenile court conducted an in camera interview of
G.B. — the transcript of which we have carefully reviewed. During that in camera
interview, G.B. clearly communicated her preferences to the juvenile court and
discussed the reasons for those preferences with the juvenile court. The juvenile
court expressly referenced that in camera interview in its July 26, 2021 judgment
entry. The juvenile court also expressly set forth, in its judgment entry, its
determination that “the child has sufficient reasoning ability to express her wishes
and concerns with respect to the allocation of parental rights and responsibilities.”
In addition, the juvenile court heard from the guardian ad litem regarding G.B.’s
wishes as set forth in the guardian ad litem’s written report and the guardian ad
litem’s statements at the hearing. Accordingly, the record reflects that the juvenile
court properly considered G.B.’s wishes in determining what was in G.B.’s best
interest.
Designation of Mother as Residential Parent for School Purposes
and Modification of Parenting Time
Father also contends that the juvenile court’s decision should be
reversed because the only evidence in the record that supports Mother’s designation
as the residential parent for school purposes is Mother’s “stated opinions regarding
(observing that the process of recording an in camera interview and sealing the transcript
“allows appellate courts to review the in-camera interview proceedings and ascertain the
reasonableness of same, while still allowing for the child to ‘feel safe and comfortable in
expressing his or her opinions honestly and openly, without subjecting the child to any
additional psychological trauma or loyalty conflicts’”), quoting Barbara L. House,
Considering the Child’s Preference in Determining Custody: Is It Really in the Child's
Best Interest?, 19 J.Juv.L. 176 186 (1998).
the morality of [Father’s] household” and “the generally unsupported
recommendations of the [g]uardian ad [l]item.” Specifically, Father argues that (1)
Mother’s testimony regarding the sexually suggestive nature of aerial dance and her
other morality-based concerns was not credible and was contradictory, (2) the GAL’s
recommendation was “rooted in gender bias” in favor of Mother, and should not be
given weight because the GAL offered “no substantive basis for her opinion” that
Mother should be designated the residential parent for school purposes, (3) G.B.’s
anxiety could be “exacerbated” if she were to relocate to Jefferson and (4) Father
should have been designated the residential parent for school purposes because he
was the “more involved” parent and G.B. had thrived under his care while attending
school in Lakewood.
As stated above, our role in reviewing the juvenile court’s decision is
to determine whether the juvenile court’s decision constitutes an abuse of discretion.
Abuse of discretion is “a very high standard.” Supportive Solutions Training
Academy, L.L.C., v. Electronic Classroom of Tomorrow, 8th Dist. Cuyahoga Nos.
95022 and 95287, 2013-Ohio-3910, ¶ 11. In determining whether the juvenile court
abused its discretion, we cannot substitute our judgment for that of the trial court.
See, e.g., Davis, 77 Ohio St.3d at 418, 674 N.E.2d 1159; Kontra v. Kontra, 8th Dist.
Cuyahoga No. 98126, 2012-Ohio-4293, ¶ 13.
Following careful review and consideration of the record in this case,
we cannot say that the juvenile court abused its discretion in designating Mother as
the residential parent for school purposes and in modifying the parenting-time
schedule to accommodate G.B. attending school in Jefferson.
In its July 26, 2021 judgment entry, the juvenile court identified the
specific factors it considered, along with the evidence and testimony of the witnesses
at the hearing, its in camera interview of G.B. and the recommendation of the
guardian ad litem, in determining what was in G.B.’s best interest as follows:
The prior intersection and interrelationships of the child with the
child’s parents, siblings, and other persons related by consanguinity or
affinity, and with the person who requested companionship or
visitation if that person is not a parent, sibling, or relative of the child;
The geographical location of the residence of each parent and the
distance between those residences; the current regional distance
between the homes;
The child’s and parents’ available time, including, but not limited to,
each parent’s employment schedule, the child’s school schedule, and
the child’s and the parents’ holiday and vacation schedules;
The age of the child;
The child’s adjustment to home, school, and community;
***
The child’s wishes as to parenting time by the parent who is not the
residential parent for school purposes;
The health and safety of the child;
The amount of time that will be available for the child to spend with
siblings;
Each parent’s willingness to reschedule missed parenting time and to
facilitate the other parent’s parenting time rights, and with respect to a
person who requested companionship or visitation, the willingness of
that person to reschedule missed visitation;
Whether the residential parent or one of the parents subject to a shared
parenting decree has continuously and willfully denied the other
parent’s right to parenting time in accordance with an order of the
Court;
Whether either parent has established a residence or is planning to
establish a residence outside this state;
The wishes and concerns of the Child’s parents, as expressed by them
to the Court; [and]
The ability of the parents to cooperate and make decisions jointly, with
respect to the child[;] the ability of each parent to encourage the
sharing of love, affection, and contact between the child and the other
parent; the history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent; the
geographic proximity of the parents to each other, as the proximity
relates to practical considerations of shared parenting[.]
Thus, the judgment entry makes it clear that the juvenile court
considered the relevant facts of this case in determining that the designation of
Mother as the residential parent for school purposes was in G.B.’s best interest. The
record further reflects that the juvenile court did not make that decision lightly.
Shortly after the parties filed their motions, the juvenile court entered an order
designating Father as the temporary residential parent for school purposes,
maintaining the status quo and prohibiting G.B. from being enrolled in a new school
district until all the evidence could be presented to, and heard in full by, the juvenile
court.
At the time of the hearing, G.B. was 13 years old and a rising eighth
grader. Although the juvenile court was required to consider G.B.’s wishes in
determining what was in her best interest, her wishes were not controlling and the
juvenile court was not required to weigh G.B.’s wishes more heavily than other
relevant factors in determining what was in her best interest. See, e.g., Tomaszewski
v. Tomaszewski, 8th Dist. Cuyahoga No. 86976, 2006-Ohio-3357, ¶ 16; Kellogg v.
Kellogg, 10th Dist. Franklin No. 04AP-382, 2004-Ohio-7202, ¶ 19; In re R.L.S., 12th
Dist. Warren No. CA2013-12-117, 2014-Ohio-3294, ¶ 32; see also Bates v. Bates, 11th
Dist. Ashtabula No. 2000-A-0058, 2001 Ohio App. LEXIS 5428, 9 (Dec. 7, 2001)
(In a child custody dispute, “[a] child’s stated preference is not controlling and
should not be the only factor upon which a trial court bases its decision.”).
Further, the record reflects that G.B.’s wish that Father be designated
the residential parent for school purposes was not based primarily on a preference
to live with Father over Mother, but rather, was based on a desire to keep attending
school in Lakewood and to maintain ties with her close-knit friend group. In other
words, if Mother had been the parent still living in Lakewood, G.B. would have
wanted Mother to be designated the residential parent for school purposes instead
of Father. While we recognize the importance of such matters to teens, the juvenile
court was not required favor G.B.’s preference to continue attending school with her
friends in Lakewood over other relevant factors.
Although a change in school districts might result in increased anxiety
for G.B. — at least on a temporary basis — there is nothing in the record to indicate
that that risk outweighed the potential benefits of designating Mother as the
residential parent for school purposes. G.B. was seeing a therapist to assist her to
develop coping skills, and both parties testified that they were supportive of her
continuing in therapy. There was no dispute that G.B. is an exceptional student and
was likely to be academically successful in any school district in which she was
enrolled. Although G.B. had applied for and been accepted into College Credit Plus
program at Cuyahoga Community College when attending school in Lakewood,
there was no reason to believe that she could not also participate in that statewide
program through another college when attending school in Jefferson.
This is not an easy case. The record reflects that G.B. has two
competent, caring parents who love her and want what is best for her. On each side,
G.B. also has stepparents and siblings with whom she has a strong bond. It is
apparent from the record that both Mother and Father have been actively involved
in parenting G.B. and that both Mother and Father are committed to continuing to
actively parent G.B. Although the parties spent a significant amount of time at the
hearing arguing over the morality or immorality of aerial dance and the extent to
which G.B. should be permitted to continue participating in that activity, there is
nothing in the record to indicate that the juvenile court’s decision was based on
considerations of morality or G.B.’s participation in aerial dance. The record
reflected that G.B.’s relationship with Mother had deteriorated since Mother had
moved to Jefferson. Father readily acknowledged this fact, identifying G.B.’s
“strained” relationship with Mother as one of eight “uncontroverted facts.” The
record further reflects that, due to Father’s work schedule as a paramedic, a
significant amount of the time G.B. spent with Father during the week was spent in
the care of her stepmother, rather than with Father.
The record supports the juvenile court’s determination that it was in
G.B.’s best interest to designate Mother as the residential parent for school purposes
and to modify the parenting-time schedule to reflect the distance between the
parents’ residences. There is nothing in the record to suggest that the juvenile court
acted unreasonably, arbitrarily or unconscionably in reaching its decision. The
parenting-time schedule established by the juvenile court is reasonable and allows
each parent to spend substantial, meaningful time with G.B.
Accordingly, Father’s second and fourth assignments of error are
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common
Pleas Court, Juvenile Division, 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.
EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR