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ISSUE: When there is a court-approved shared parenting plan in place that grants equal status to a child's mother and father as residential parents and legal custodians, prior to issuing an order that changes the status of the father as a co-residential parent and co-legal custodian, must a trial court first make a finding that there has been a material “change in the circumstances” of the child and/or of the affected parent?
BACKGROUND: Paul Fisher and Emma Hasenjager had a child together in 2002 and in December 2003 entered into a court-approved shared parenting agreement under which both had the status of residential parents or legal custodians of their daughter. Early in 2005, Fisher and Hasenjager filed separate motions asking the Mercer County Court of Common Pleas to modify the co-parenting order, with each asking to be named as sole residential parent and legal custodian. Following a trial, the court issued a judgment that made no determination of a change in the circumstances of the parents, but held that it was in the best interest of the child that Hasenjager be named as the child's sole residential parent and legal custodian.
Fisher appealed that ruling to the 3rd District Court of Appeals, arguing that the trial court judgment was invalid because it had deprived him of his status as co-residential parent and custodian without first making a required factual finding under R.C. 3109.04(E)(1)(a) that there had been a “change in circumstances” of the child or of Fisher's life that materially affected his ability to continue functioning as a suitable residential parent or legal custodian. The 3rd District affirmed the trial court's decision, holding that a different provision of the same statute, R.C. 3109.04(E)(2)(b), authorized the trial court to “modify the terms” of a shared parenting agreement without requiring a finding of changed circumstances, but based solely on its finding that the modification was in the best interest of the child.
The 3rd District certified that its interpretation of the applicable laws in this case was in conflict with decisions of several other appellate districts, and the Supreme Court agreed to hear arguments to resolve the conflict among districts.
Attorneys for Fisher assert that the trial court's ruling depriving him of his prior status as co- residential parent and custodian of his daughter was not merely an order “changing the terms” of a co-parenting agreement covered by R.C. 3109.04(E)(2)(b), but was rather an order “changing the parenting status” of a party to an existing custody order – and was therefore subject to the more demanding requirements of R.C. 3109.04(E)(1)(a). They urge the Court to reverse the 3rd District and remand the case to the trial court for a determination of whether there has been a change in Fisher's circumstances or those of his daughter sufficient to justify stripping him of significant parental rights.
Attorneys for Hasenjager point out that the trial court did not state which subsection of R.C. 3109.04 it used as the basis for its ruling, and assert that the facts set forth in the case showed a number of changes in circumstances that would have supported an order under the more demanding provision cited by Fisher. They argue that the less-demanding “change in terms” provision cited in the 3rd District's opinion is not identified as an “either-or” alternative to the “change in parenting status” provision cited by Fisher, but is rather identified an additional option that trial courts may utilize to adjust the terms of a parenting agreement when the best interest of a child in an individual case is advanced by those changes.
Contacts
Douglas B. Dougherty, 614.798.1933, for Paul Fisher.
James A. Tesno, 419.586.6481, for Emma Hasenjager.
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The Ohio Supreme Court Oral Arguments Preview article.
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