Matter of Neale, Unpublished Decision (2-6-1998)

CHILD CUSTODY MODIFICATION:

R.C. 3109.04(E)(1)(a) supplies a three-part test for determining whether to modify child custody: (1) whether there has been a change of circumstances since the last custody order; (2) whether a change in custody would serve the best interest of the child; and (3)whether the harm caused by the change is outweighed by the advantages of the proposed modification. In considering the best interest of the child, the court is instructed to consider the non-exclusive list of factors contained in R.C. 3109.04(F)(1). The inquiry should be guided by a strong presumption in favor of maintaining the current custody plan. Thus, the movant seeking a change in custody bears the burden of producing evidence that is sufficient to overcome the presumption that custody remain the same. Where the factors in R.C. 3109.04(F)(1) weigh equally in favor of both parents, the domestic relations court does not abuse its discretion in denying a movant's request for a change in custody.