Termination of the parties' shared parenting plan was properly denied

April 05, 2014 (Press-News.org) Termination of the parties' shared parenting plan was properly denied

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In Drees v. Drees, the Third District Court of Appeals of Ohio held that the trial court should have applied a "best interests of the child" test in determining the mother's motion seeking a termination of the parties' shared parenting decree. The appeals court said that proof of a substantial change in circumstances was not required, but nevertheless upheld the trial court's decision denying the motion due to a lack of sufficient proof that the shared parenting decree was not in the best interest of their child.

Background

The parties divorced in 2010. The trial court approved the parties' plan for shared parenting of the parties' two minor children. The plan terminated with regard to the oldest child in 2011, after he became emancipated. In 2012, the mother filed a motion to terminate the shared parenting plan with regard to the youngest child. The motion was based on the assertion that the father was not complying with the shared parenting plan, and that this effectively burdened the mother with the full responsibility of raising the child.

Following a hearing, the magistrate found that the father had actually exercised more of a parenting role than the mother, that neither party objected to the alternating parenting schedule, that the child had a good relationship with both parents, that the father called the child often and was concerned about being unable to persuade her to come over for her parenting time with him. The parents lived near one another in the same school district. The magistrate determined that both parents had the ability to cooperate, to make joint decisions, and to encourage the sharing of love, affection, and contact between the child and the other parent.

Based on this record, the magistrate determined that the mother had failed to establish sufficient proof of either a substantial change of circumstances or that the shared parenting plan was no longer in the child's best interest. The trial court agreed and denied the motion, and the mother filed an appeal with the Third District.

The Third District's ruling

The Third District noted that the mother's motion sought a termination, rather than a modification, of the shared parenting decree.

In proceedings to modify of a prior parenting decree, the trial court must employ the two-step procedure under the Ohio Revised Code. Modification is permitted only upon proof establishing a change of circumstances of the child or either of the parents that is so significant that the shared parenting plan is no longer in this child's best interest.

However, said the Third District, the magistrate and the trial court should have applied the "best interests of the child" test under the Ohio Code. If a request is made by one or both of the parents for termination of a prior decree that includes a jointly filed shared parenting plan, proof of the existence of a change of circumstances is not required. Where the trial court finds that the prior shared parenting plan is not in the best interest of the child, it can order a termination and issue a modified decree. The Third District found that the evidence supported the trial court's decision that shared parenting continued to be in the child's best interest.

Individuals facing issues relating divorce, child custody or other domestic relations matters are urged to consult with a competent attorney, experienced in such matters for the protection of their legal rights.