Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
In the case of D.W., Appellee v. T.R., Appellant; Appellee father filed a motion to modify the allocation of parental rights and responsibilities, seeking to be designated as the residential parent and legal custodian. Over objections, the Lucas County Court of Common Pleas, Juvenile Division (Ohio), adopted the magistrate’s decision designating the father as the residential parent and legal custodian. Appellant mother filed an appeal.
The mother’s main argument was that the father failed to demonstrate any substantial change of circumstance. The court held that there was evidence of a change of circumstances warranting that reallocation of parental rights, pursuant to R.C. 3109.04 it would be in the interest of the children. There have been many times that the mother interfered with the father's visitation. This included the mother’s refusal to allow the father access to counselors, or to notify him that the younger child had a prosthesis, which demonstrated an overall desire by the mother to undermine the father’s role.
On December 7, 2006, the parties filed a consent judgment entry with the trial court, designating defendant-appellant T.R. ("mother") as the sole residential parent and the legal custodian of the parties' two minor children.
On February 2, 2010, father filed a motion to modify the allocation of parental rights and responsibilities. In his motion, father alleged, inter alia, that a change of circumstances had occurred because of mother's consistent failure to follow the trial court's order regarding visitation. The court held a hearing on this motion on August 30, 2010. At the hearing, father testified to numerous dates that mother denied him visitation, including instances in December 2006, January 2007, and on various holidays and vacations throughout 2007 and 2008. Mother denied that she withheld visitation from father on any of the dates he mentioned.
Mother withheld things from the father such as the oldest child threatening suicide if they had to stay with the father. Father’s visitation was taken away until such time as the child’s mental health was secured. After this time the visitation was resumed and there have been no such threats. Father suggested during his testimony that it was mainly mother's attitude and actions in front of the children regarding father that caused the older child to become hysterical and threaten suicide.
On November 2, 2010, the magistrate entered her decision granting father's motion to modify the allocation of parental rights and responsibilities. In her decision, the magistrate found, inter [**8] alia,
[T]here were numerous times that mother denied father his visitation. Mother has repeatedly and consistently allowed father to parent as little as possible. She thwarts him in any way she can even to the detriment of the children. She gives lip service to fostering a relationship between father and his sons, but her actions are to the contrary.
Based upon the in camera interview and evidence adduced at hearing and upon consideration of the factors contained in O.R.C. 3109.04, a change has occurred in the circumstances of the children and in the circumstances of the residential parent such that a modification is necessary to serve the best interest of the children and the harm likely to be caused by a change if [sic] environment is outweighed by the advantages of the change of environment to the children.
Based upon the evidence adduced at hearing and in consideration of the in camera interview of the child, it is in the best interest of the children that their father be designated as the residential parent and legal custodian.
The mother subsequently filed objections to the magistrate's decision. On April 21, 2011, the trial court affirmed the magistrate's decision in [**9] all aspects.
The appeal was affirmed also stated “It is clear from the record that independently mother and father are good parents who love and care for their children. Unfortunately, the parties disdain for each other has resulted in a nearly constant state of contentious litigation over ten years, with the children caught in the middle. In moving forward, we exhort the parties to give greater consideration to the effect their disagreements have on their children. For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Mother is ordered to pay the costs of this appeal pursuant to App.R. 24.”
CORE TERMS: guardian ad litem, interview, visitation, older, younger, closing arguments, recommendation, best interests, appointed, custody, parental rights, in camera, assignments of error, counselor—, change of circumstances, residential, modification, parenting, guardian, child's best interest, prior decree, evidence adduced, appointment, custodian, juvenile, modify, recommended, maternal, suicide, inter alia
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