Category Archives: Custody

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”.

 

How to Modify Sole Custody vs Shared Parenting Plan

Equal Parenting Time Does Not Mean Shared Parenting

The Ninth District Court of Appeals ruled on a case where a Mother filed a “Motion to Terminate a Shared Parenting Plan”  two months after the trial Court issued a Divorce Decree where Mother was named sole residential parent.  The Court of Common Pleas modified the prior Order, and Father appealed. The Court of Appeals reversed the trial Court stating, “Before a trial court may modify a prior decree allocating parental rights and responsibilities, the court must make a threshold determination that a change in circumstances has occurred.” The court also stated that modification of a prior decree cannot happen, “Unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parent’s which are subject to a shared parenting decree, and that the modification is necessary to serve the best interests of the child.” The Court also found that just because there is 50-50 parenting time allocation, that does not mean there is a shared parenting plan. Sejka v. Sejka, 195 Ohio App.3d 335. To read the full case, see   http://www.leagle.com/decision/In%20OHCO%2020110919596

This case is extremely interesting, in that, it appears from the Appeals Court ruling that both of the parties’ believed that a “Shared Parenting Plan” was in effect after the initial trial, as the Mother filed a Motion entitled “Motion to Terminate Shared Parenting Plan”, and the Father filed an Appeal alleging that the trial Court was not permitted to modify the Shared Parenting Plan, however, no document entitled “Shared Parenting Decree” or “Shared Parenting Plan” was made an Order of the Court during or after the trial.

Pursuant to R.C. 3109.04(E)(1)(a), a trial court cannot modify an existing
allocation of parenting rights and responsibilities “[U]nless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child.” Also, “ ‘before a modification can be made pursuant to R.C. 3109.04(E)(1)(a), the trial court must make a threshold determination that a change in circumstances has occurred.’ ” Buttolph v. Buttolph, 9th Dist. No. 09CA0003, 2009-Ohio-6909, at ¶ 11, quoting Gunderman v. Gunderman, 9th Dist. No. 08CA0067-M, 2009-Ohio-3787, ¶ 9, citing Fisher 116 Ohio St.3d 53, 2007-Ohio-5589, at syllabus. The Ohio Supreme Court has held that the requisite change of circumstances “must be a change of substance, not a slight or inconsequential change.” Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418.

Attorney Fees in Child Custody Case Mother Gets $40,000

June 13, 2011. Success on Appeal.  Attorney Fees in Child Custody Case.

The Law Office of Anthony W. Greco successfully represented its Client in defending a Father Motion for Custody and obtaining a Order in the Union County Court for the reimbursement of attorney fees in child custody case in the amount of $40,000.00.  Not only was our Client successful in defeating the Father’s request for custody, but the Mother was successful in defeating Father’s request for additional parenting time.  The Union County Trial Court found that there was no change in circumstances requiring any change in custody of Mother, nor for the visitation of Father. Further, the trial court ruled that awarding the Mother’s attorney fee’s in child custody case was, “based upon the scope, sophistication and duration of the litigation initiated by Father.”  The Union County Trial Court’s ruling was then upheld by the Court of Appeals of Ohio, Third Appellate Court District.

Change in Circumstances Required

In this case, the parties were divorced and in their Agreed Judgement Entry they agreed that Mother would have sole custody of the minor child, and Father would have parenting time that was less than the Union County Local Rule.  Several years later Father filed a Motion for Reallocation of Parental Rights and Responsibilities seeking full custody, or in the alternative, an increase in parenting time.  After a full trial, the Union County trial Court ruled that Father failed to prove that a change in circumstances had occurred, and therefore, no modification of the original Order could occur, neither in child custody, nor parenting time.

Attorney Fees in Child Custody Case

The Mother filed a Motion for Attorney Fees in child custody case, and as the trial Court ruled, that as a prevailing party, and due to the scope, sophistication and duration of the litigation initiated by Father, Mother was awarded $40,000.00 in attorney fees in child custody case.

Change in Circumstances and attorney fees in child custody case.

For the full case opinion, click here for link.

http://law.justia.com/cases/ohio/third-district-court-of-appeals/2011/2011-ohio-2847.html