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.