By Robert L. Mues   |   October 17th, 2020

LEGAL ALERT: Who gets Legal Custody of a Minor Child After Termination of a Shared Parenting Plan? The Ohio Supreme Court Intervenes

ohio supreme court shared parenting planLast week, the Ohio Supreme Court was asked to resolve a conflict between Ohio appeals courts. The difficult question that the Ohio Supreme Court was faced with in Bruns v. Green was whether there must be a change in circumstance in order to designate a parent the residential parent and legal custodian of a minor child after terminating a share-parenting decree.

The Ohio Supreme Court ultimately concluded that a trial court only needs to consider the best interest of the child when deciding whether to terminate a shared parenting plan and which parent to designate as the residential and custodial parent of a minor child.

Facts of Bruns v. Green – Ohio Supreme Court

Marcus Green (“Father”) and Kayleigh Bruns (“Mother”) are the biological parents of one minor child born in 2012. When the parties ended their relationship in 2014, they entered into an Agreed Shared Parenting Plan pursuant to O.R.C. 3109.04, in which the parties agreed to joint residential and legal custody and equal parenting time. The trial court approved the Shared Parenting Plan  and incorporated it into a shared parenting decree.

Shortly thereafter, Father filed a motion asking for full custody of the child. In response, Mother filed a motion to terminate shared parenting and to reallocate parental rights and responsibilities in which she asked the trial court to terminated the Shared Parenting Plan or to modify the plan. Father then filed a similar motion to that of Mother’s motion.

Trial court enters judgment that terminates parties’ joint Shared Parenting Plan

After several hearings in 2017, the trial court entered a judgment that terminated the parties’ joint Shared Parenting Plan and designated the Mother as the sole residential parent and legal custodian of the child. In the judgment, the trial court noted several reasons as to why this was in the best interest of the child.

Father then appealed to the Tenth District Court of Appeals and argued that the trial court was incorrect in its hold. Father argued that it was improper for the court to terminate the Shared Parenting Plan without first determining a change in circumstance. The Tenth District Court of Appeals affirmed the lower court’s decision and determined that a change in circumstances is not required in order to issue a modified decree allocation parental rights and responsibilities to a single parent after a prior Shared Parenting Plan has been terminated.

Father then appealed to the Ohio Supreme Court.

Explaining the law in Ohio

Ohio Revised Code (O.R.C) 3109.04 establishes a process for allocating parental rights and responsibilities for the care of minor children.

O.R.C. 3109.04(A)(1) provides that if neither parent requests a shared-parenting arrangement or if the parents fail to properly file for shared parenting, a trial court shall, in a manner consistent with the best interest of the child, allocated parental rights and responsibilities for the care of the child primarily to one of the parents and then designate that parent as the residential parent and the legal custodian of the child.

On the other hand, another appropriate way of allocating parent rights, under O.R.C. 3109.04(A)(2), occurs when one or both of the parents request a shared parenting and file a plan for shared parenting that the court determines is in the best interest of the child.

Changes to a shared parenting decree or plan

In addition to explaining how the trial court initially allocates parental rights and responsibilities, O.R.C 3109.04 also sets forth the procedures to be followed if a parent or trial court thinks it is necessary to make changes to a shared parenting decree or plan. The important thing to keep in mind here is that the procedures differ depending on whether the trial court is asked to:

  1. modify a decree that allocated parent rights and responsibilities,
  2. modify the terms of a shared parenting plan, or
  3. terminate a shared parenting decree and plan.

1. Modifying a Decree – change in circumstances & best interest: O.R.C. 3109.04(E)(1)(a) allows for modification of a shared-parenting decree. In order to modify a decree that allocates parental rights and responsibilities, the court must find that there has (1) been a change in circumstances and (2) that the modification is in the best interest of the child.

2. Modifying a Shared Parenting Plan – only best interest: O.R.C. 3109.04(E)(2)(a) and (b) allow for the modification of the terms of a shared parenting plan. In order to modify a shared parenting plan, the parties can jointly agree to modify the terms of the shared parenting plan or the trial court–on its own initiative or at the request of one or both parent–can modify the terms of the shared parenting plan when the modification is found to be in the best interest of the child.

3. Terminating a Shared Parenting Plan and Decree – only best interest: O.R.C. (E)(2)(c) provides the procedures for terminating a shared-parenting decree that includes a shared-parenting plan. In order to terminateba shared-parenting decree that includes a shared-parenting plan, the court must find that shared parenting is not in the best interest of the child.

In the event that the court does terminate the shared parenting, then O.R.C. 3109.04(E)(2)(d) states that the court shall issue a modified decree for the allocation of parental rights and responsibilities “as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made.

Essentially, this means the court falls back on O.R.C. 3109.04(A)(1), as described above, because it is as if neither parent has requested for shared parenting. Following O.R.C. 3109.04(A)(1), the court, in accordance with the best interest of the child, is to allocate parental rights and responsibilities primarily to one parent and designate that parent as the residential parent and legal custodian.

Applying the law to the case

In this case, Mother and Father elected to file an Agreed Shared Parenting Plan together and the court approved their plan under O.R.C. 3109.04(A)(2). Later, they both filed separate motions asking the court to terminate their Agreed Shared Parenting Plan and designate one of them the residential parent and legal custodian of the minor child.

Following the guidelines for terminating a shared parenting plan and decree as outlined in O.R.C. 3109.04(E)(2)(c), the trial court properly terminated the shared-parenting plan and decree.

And following the guidelines for what happens if a shared parenting plan is terminate outlined in O.R.C. 3109.04(E)(2)(d), the trial court allocated parental rights and responsibilities as if there had never been a shared parenting decree and as if neither party had ever requested shared parenting.

As a result, the court allocated residential and legal custody to Mother based on its determination that doing so was in the best interest of the child as required by O.R.C. 3109.04(A)(1).

Ohio Supreme Court Shared Parenting Plan Conclusion

Ultimately, the Ohio Supreme Court held that a trial court is not required to find a change in circumstances, in addition to considering the best interest of the child, before terminating a shared-parenting plan and decree and designating one parent as the residential parent and legal custodian.

Read the full opinion at Bruns v. Green, 2020-Ohio-4787.

Questions about modifying or terminating a Shared Parenting Plan? Schedule An Appointment Today!

At Holzfaster, Cecil, McKnight & Mues, located in Dayton, Ohio, top-notch family law and divorce representation is provided by our experienced family law lawyers! To learn more, go to our website at www.hcmmlaw.com. Or, please contact us at (937) 293-2141 to schedule an appointment for an initial consultation which can be conducted either by phone or in person.

PUBLISHER’S NOTE: I want to thank Mickenzie Grubb for writing this blog. She is a 3rd year law student from the University of Dayton School of Law, who is externing with our firm this semester. Outstanding job Mickenzie!

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Robert L. MuesAbout The Author: Robert L. Mues
Attorney Robert "Chip" Mues has been focusing his legal practice throughout Southwest Ohio primarily in divorce and family law matters since 1978. Chip is passionate about family law and has proudly published the Ohio Family Law Blog since 2007. In addition, he is the managing partner of Holzfaster, Cecil, McKnight & Mues. To learn more about him or the law firm, visit the firm's website at www.hcmmlaw.com. Appointments are available in person, over the phone or by Zoom. Call us at 937 293-2141.

The Ohio Supreme Court Just Clarified the Standard for Terminating a Share Parenting Plan [LEGAL ALERT]

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