Category Archives: Shared Parenting

Termination of a Shared Parenting Plan

Ohio Revised Code section 3109.04(E)(2)(c) deals with the termination of a Shared Parenting Plan and states, “The court may terminate a prior final shared parenting decree that includes a Shared Parenting Plan … upon the request of one or both parents or whenever it determines that shared parenting is not in the best interests of the children.”  In Kougher v. Kougher 194 OhioApp.3d 703, the Court of Appeals reversed the lower trial court who refused to terminate the parties Shared Parenting Plan because the court found that there had not been a change in circumstances since the Shared Parenting Decree went into effect.  To read the full case see, http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2011/2011-ohio-3411.pdf.

Termination of a Shared Parenting Plan:   3 Ways

This case demonstrates that a Shared Parenting Plan can be terminated in 3 ways:  (1) upon the request of one parent; (2) upon the request of both parents;  OR (3) if the court finds that shared parenting is not in the best interests of the children.  The statute does not require that either parent have a specific reason to terminate the shared parenting plan, it just requires that one or both of the parents make the request.  Having said that, if a party has filed a Motion to Terminate a Shared Parenting Plan, although it is not specifically required under the statute, it is always important to be able to explain to the court as part of your case, why the Shared Parenting Plan isn’t working.  This is simply because once a Shared Parenting Plan is terminated, the court must have a custody trial and take evidence from the parties as to what is in the children’s best interests when awarding custody to one of the parents.  To make this determination, the Court will weigh the evidence and apply each of the factors listed in the “best interest test”.  This will usually result in one parent or the other receiving “full custody”.

 

Modifying Shared Parenting – If You Snooze You Might Lose

Modifying Shared Parenting.  I would categorize the case of Livermore v. Livermore, 2006-Ohio-485 under the section “if you snooze you loose”, or “strike while the irons hot”.  The basic facts of the case as outlined in the court of Appeals decision are as follows.

Modifying Shared Parenting:  Case Facts

The Father appealed the judgment of the Common Pleas Court of Crawford County, Ohio, denying his motion to name him the residential parent of the parties’ three minor children and find defendant Mother in contempt of court.  On November 15, 1999, the parties were divorced. The parties agreed at that time to a shared parenting arrangement regarding their three minor children, with a 9 month to 3 month split in which the children spent the school year with Mother in Florida and the summer months with Father, who resided in Ohio. Mother was designated the residential parent during the school year and James was designated the residential parent during the summer.

On March 15, 2001, the eldest child, Cory, came to live with Father, and in October 2003, the youngest child, Kimberly, moved to Ohio to live with Father also. The middle child, Ashley, lived with Mother at all times until the summer of 2004. Late in the
summer of 2004, Mother advised Father that Cory and Kimberly would be staying in
Florida with her for the next school year.  Father disagreed, and filed a Motion asking the Court to name him residential parent.

In addressing the issue of Modifying Shared Parenting, the trial Court denied Father’s Motion and the Court of Appeals upheld the trial Court’s denial.  The Court of Appeals reasoned that the purpose of a shared parenting plan is to provide the parties the necessary flexibility within the court’s order to act in concert in the best interests of their children. As all persons who have raised or are raising children know, matters will arise in the course of their development that cannot necessarily be predicted at the time of divorce. These issues may be educational, emotional, psychological or otherwise. Shared parenting allows divorced parents the ability to cooperate with each other to make parenting decisions as unforeseen needs arise.

Modifying Shared Parenting.  It appears that the Father did not file his Motion to be named residential parent until after the children had already re-enrolled and started back to school in Florida.  As a result he apparently lost the ability to persuasively assert the argument that since one of the children had already been attending school in his school district for 2 years, and one of the other children had been attending school in his school district for one year, why wouldn’t the Court just issue an Order formally recognizing what the parties had informally agreed upon.  However, as the Father waited as long as he did to file a Motion and start the case for custody, he lost the ability to make his best argument while the children were physically living with him in his school district.  It appears from the record that by the time the case came to trial, the children had all been residing in Florida with their mother.

So the lesson from this case is…If you snooze you might just lose, so strike while the iron is hot.

To read the full case, see http://statecasefiles.justia.com/documents/ohio/third-district-court-of-appeals/2006-ohio-485.pdf?ts=1370460035.

Modifying Shared Parenting – If you snooze, you might loose. Modifying Shared Parenting.