[Cite as Frankart v. Phillips, 2025-Ohio-2299.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
ZACHARY M. FRANKART, CASE NO. 13-24-36 PLAINTIFF-APPELLEE,
v.
SYDNIE A. PHILLIPS,
DEFENDANT-APPELLEE, OPINION AND JUDGMENT ENTRY -AND-
WILLIAM M. FRANKART,
INTERVENER-APPELLANT.
Appeal from Seneca County Common Pleas Court Domestic Relations Division Trial Court No. 19 DR 0164
Judgment Affirmed
Date of Decision: June 30, 2025
APPEARANCES:
Dean Henry for Appellant
John M. Kahler, II for Appellee Sydnie Phillips Case No. 13-24-36
WALDICK, P.J.
{¶1} Intervener-appellant, William M. Frankart (“William”), appeals the
September 3, 2024 decision of the Seneca County Court of Common Pleas,
Domestic Relations Division, denying his motion for legal custody of his
grandchild, J.F., and designating defendant-mother-appellee, Sydnie A. Phillips
(“Sydnie”), as the residential parent and legal custodian of J.F. For the reasons that
follow, we affirm.
Background
{¶2} J.F. was born in January of 2020. Her parents are Zachary Frankart
(“Zachary”) and Sydnie. In 2020, Zachary and Sydnie divorced and they originally
agreed to a shared parenting plan. Subsequent visitation disputes led both parties to
file motions to terminate the plan and to be designated as J.F.’s residential parent
and legal custodian.
{¶3} In 2022, Zachary was charged with numerous felony sexual assault
crimes in Butler County. After Sydnie learned of the charges, and after having the
aforementioned visitation disputes, Sydnie absconded with J.F. for several months
in June of 2022. During the summer of 2022, Sydnie took J.F. to Kentucky, West
Virginia, and Pennsylvania in an attempt to obscure their whereabouts.
{¶4} When Sydnie did not return J.F. to Zachary for his visitation, Zachary
sought and received temporary custody of J.F. on July 18, 2022. However, before
-2- Case No. 13-24-36
the order could be served on Sydnie, Zachary was convicted of attempted rape and
sentenced to prison.
{¶5} Following Zachary’s conviction for attempted rape and his subsequent
incarceration, William, J.F.’s paternal grandfather, filed a motion to intervene in the
matter on September 8, 2022, which the trial court granted. Contemporaneously,
Zachary moved the court for a (self-executing) order granting temporary custody of
J.F. to William. The trial court granted the requested relief and directed Sydnie to
relinquish custody of J.F. to William.
{¶6} William engaged the services of a private investigator to track Sydnie’s
movements. Once Sydnie learned that William was granted temporary custody of
J.F., and she spoke to her attorney, Sydnie returned to Ohio and turned J.F. over to
William on September 12, 2022. Sydnie was convicted of “interference with
custody” as a result of her actions.
{¶7} Sydnie subsequently filed for reallocation of parental rights and
responsibilities, seeking termination of the shared parenting plan and designation as
J.F.’s residential parent and legal custodian. Sydnie further moved to set aside the
trial court’s prior order granting temporary custody of J.F. to William.
{¶8} On December 5, 2022, William requested that the trial court appoint
J.F. a guardian ad litem (“GAL”), which the trial court granted.
{¶9} On December 9, 2022, William filed a motion requesting legal custody
of J.F. Thereafter, on December 29, 2022, the parties consented to the entry of an
-3- Case No. 13-24-36
order designating William as J.F.’s temporary legal custodian. Sydnie was awarded
supervised parenting time at “Patchworks House” or at William’s home “as the
parties may agree.” Sydnie exercised her supervised parenting time at Patchworks
House, flying in from as far as California to exercise her parenting time, but when
she requested to meet outside of Patchworks House, William would not agree.
{¶10} A hearing was held on the pending motions on February 15-16, 2024,
and May 20, 23, 2024. At the hearing, Sydnie testified that she worked as a
specialized welder and that she made the most money by “chasing the shutdowns,”
or working temporarily in other areas. At her current rate, she was making between
$150,000 and $200,000 per year.
{¶11} During the February 2024 hearings, Sydnie was living in California
and she testified she intended to stay there; however, by the May 2024 hearing dates
she had moved to Charleston, West Virginia and was working consistently there.
Sydnie testified that she moved to West Virginia because she had family there and
because she would be closer to J.F. Sydnie testified that she was willing to do
whatever it took to get custody of J.F.
{¶12} Sydnie presented the testimony of several witnesses who had been
around her in the past while she was parenting J.F. Sydnie’s witnesses described her
as a caring, attentive, and doting mother. Sydnie acknowledged that she was wrong
for absconding with J.F. Sydnie also testified she was willing to help facilitate
visitation for William and his family.
-4- Case No. 13-24-36
{¶13} William and his wife testified about their difficulties communicating
with Sydnie. They also testified that J.F. was thriving in their care over the last 18
months. William testified that his family was bonded to J.F. and that he wished to
have legal custody of her.
{¶14} The GAL recommended that J.F. remain with William. However, the
GAL testified that he did not believe that Sydnie was an “unfit” parent, which was
a requirement that had to be established before awarding custody to a non-parent
over a parent. He testified that his focus was on the best interests of the child, and
he simply felt J.F. was in a better situation with William.
{¶15} On September 3, 2024, the trial court filed a final judgment entry
determining that Zachary’s incarceration constituted a change in circumstances that
warranted the trial court terminating the parties’ shared parenting plan. The trial
court subsequently designated Sydnie as J.F.’s residential parent and legal
custodian, finding that William failed to satisfy his burden of proof demonstrating
that Sydnie was an unfit or unsuitable parent to have custody of J.F.
{¶16} On September 5, 2024, William filed his notice of appeal. He raises
two assignments of error for our review, which we will review together.
First Assignment of Error
The Trial Court erred in overruling William M. Frankart’s Motion for Custody of his grandchild, J.F., and finding Defendant Sydnie A. Phillips was not an unfit and/or unsuitable parent.
-5- Case No. 13-24-36
Second Assignment of Error
The Trial Court erred in Designating Defendant Sydnie A. Phillips as the sole residential parent and legal custodian of J.F.
{¶17} In his assignments of error, William argues that the trial court erred by
denying his motion for legal custody of J.F. and by designating Sydnie as J.F.’s
residential parent and legal custodian. In particular, William argues that the trial
court’s fitness and suitability determination improperly focused solely on Sydnie’s
interests, neglecting J.F.’s welfare in the custody placement decision.
Standard of Review
{¶18} We review the grant or denial of a motion for legal custody under an
abuse-of-discretion standard. In re I.T., 2023-Ohio-3010, ¶ 17 (3d Dist.). An abuse
of discretion implies that the court’s decision was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The same
standard of review applies to the trial court’s determination designating Sydnie as
residential parent and legal custodian of J.F. See Sayre v. Furgeson, 2016-Ohio-
3500, ¶ 49 (3d Dist.).
Analysis
{¶19} “Jurisdiction in child custody disputes arises under one of two separate
statutes, R.C. 3109.04 and R.C. 2151.23.” Scavio v. Ordway, et al., 2010-Ohio-984,
¶ 18 (3d Dist.). “Child custody dispute jurisdiction is conferred on the domestic
relations court pursuant to R.C. 3109.04(A) when the custody proceedings arise out
-6- Case No. 13-24-36
of ‘any divorce, legal separation, or annulment proceeding and in any proceeding
pertaining to the allocation of parental rights and responsibilities for the care of a
child . . . .’” Id., quoting R.C. 3109.04(A).
{¶20} “When jurisdiction for the custody proceeding lies with the domestic
relations court, R.C. 3109.04 generally requires the trial court to conduct a two-part
test in order to modify custody.” Scavio at ¶ 19. “First, the trial court must determine
whether a change in circumstances has occurred for the child, the child’s residential
parent, or either of the parents in a shared parenting decree.” Id. “Second, if the
court finds a change in circumstances, it must then determine whether such a
modification would be necessary to serve the best interest of the child, and it must
find one of three circumstances listed in the statute to be present.” Id.
{¶21} “Underlying both R.C. 3109.04 and R.C. 2151.23 is the principle that
parents are imbued with the fundamental right to care for and retain custody of their
children.” Scavio at ¶ 20; see also In re Perales, 52 Ohio St.2d 89, 96 (1977)
(“custody proceedings between a parent and a nonparent . . . bring into play the right
of the parent to rear his own child.” ). Within this fundamental right is the idea that
the custody and care of the child should reside first with the parents. Id. A parent’s
right to custody of his or her child has been deemed “paramount” when the parent
is a “suitable person.” Id.; In re Hayes, 79 Ohio St.3d 46, 48 (1997).
{¶22} To safeguard the fundamental parental right to custody, Ohio law
mandates that in a child custody case between a parent and a nonparent, the trial
-7- Case No. 13-24-36
court must make an explicit finding of parental unsuitability on the record before
awarding legal custody to the nonparent. Scavio at ¶ 21; In re Hockstok, 2002-Ohio-
7208, ¶ 29. “A nonparent may establish unsuitability by demonstrating that ‘(1) the
parent has abandoned the child, (2) the parent contractually relinquished custody of
the child, (3) the parent has become incapable of supporting or caring for the child,
or (4) an award of custody would be detrimental to the child.’” In re M.H., 2023-
Ohio-3776, ¶ 41 (1st Dist.), quoting In re R.V., 2021-Ohio-1830, ¶ 19 (1st Dist.).
{¶23} “In assessing the fourth circumstance (i.e., whether there is a
preponderance of the evidence showing that an award of custody to the parent would
be detrimental to the child), the focus is on the potential harmful effect on the child.”
Heberling v. Deckard, 2024-Ohio-1535, ¶ 36 (3d Dist.). “When making this
assessment, ‘the trial court must avoid making a determination based purely on the
best interest of the child.’” Id. at ¶ 37, quoting In re M.N., 2016-Ohio-7808, ¶ 13
(6th Dist.); see also In re Holycross, 1999 WL 152853, *2 (3d Dist. Feb. 24, 1999)
(noting that “parental custody is presumed to be in the best interests of the child
unless it can be shown that placement with a parent will be detrimental to the
child.”). “Instead, the court should consider the extent and magnitude of harm the
child is likely to experience if placed with his or her natural parent.” Heberling at ¶
37. Although not exclusive,
[p]otentially relevant to this consideration is evidence regarding, for example: the parent’s history of abuse of the child or of his or her other children, history of failing to meet his or her children’s needs,
-8- Case No. 13-24-36
or lack of involvement with the child or with his or her other children; the child experiencing fear in the parent’s home; and whether the child had been living with individuals with whom he or she has established long and significant relationships.
Id.
{¶24} “If a court concludes that any one of these circumstances describes the
conduct of a parent, the parent may be adjudged unsuitable, and the state may
infringe upon the fundamental parental liberty interest of child custody.” In re
Hockstok, 2002-Ohio-7208, ¶ 17. “The nonparent seeking custody bears the burden
of demonstrating that the parent is unsuitable.” Depinet v. Norville, 2020-Ohio-
3843, ¶ 14 (3d Dist.).
{¶25} In this case, the trial court (after making the appropriate change-of-
circumstances determination) terminated Zachary and Sydnie’s shared parenting
plan and designated Sydnie as the sole residential parent and legal custodian of J.F.
The trial court concluded that William did not meet his burden of proving that
Sydnie is an unsuitable or unfit parent. Reaching this determination, the trial court
reasoned that, even though the GAL assessed that it was in J.F.’s best interest to
remain in the custody of William, the GAL did not believe that Sydnie would be
unfit or unsuitable to raise J.F.
{¶26} On appeal, William argues that the trial court abused its discretion by
denying his motion for legal custody of J.F., arguing that the trial court prioritized
parental rights over the child’s well-being. He contends that the trial court failed to
-9- Case No. 13-24-36
adequately consider evidence demonstrating that awarding custody of J.F. to Sydnie
would be detrimental to J.F. This detriment, William argues, stems directly from
Sydnie’s documented history of instability, blatant disregard for judicial authority,
and repeated interference with established parental rights.
{¶27} Specifically, William points to Sydnie’s willful and continuous denial
of Zachary’s court-ordered parenting time, her defiant refusal to return J.F. to
Zachary or William’s custody despite a direct court order, and her criminal
conviction for interference with custody in Sandusky County, Ohio, arising from
her absconding with J.F. William contends that Sydnie admitted her intent to
disobey a court order regarding J.F.’s return to Zachary, and she admitted that her
relocation of J.F. to multiple states in the summer of 2022, without proper notice,
was for the purpose of obstructing the efforts of the Frankarts to locate them.
{¶28} Sydnie disputes William’s characterization of the evidence presented,
though she acknowledged she had made mistakes that led to the current situation.
She refutes the claim of instability, asserting that her recent interstate moves were
dictated by the demands of her employment “chasing the shutdowns.” Sydnie
further argues that any past concerns regarding her suitability as a parent are no
longer relevant. She emphasizes she has voluntarily completed parenting classes.
She emphasizes that although she was never diagnosed with alcohol dependency,
she regularly attends AA meetings and she was maintaining her sobriety. She had
also secured a stable home in West Virginia, purchased on a land contract.
-10- Case No. 13-24-36
{¶29} Crucially, Sydnie highlights the testimony of the GAL, who testified
that she is neither an unsuitable nor an unfit parent. This independent assessment,
she contends, directly contradicts William’s accusations and underscores her ability
to provide a safe and nurturing environment for J.F. Thus, while William paints a
picture of deliberate defiance and instability, Sydnie presents herself as a
responsible parent who made poor decisions and has since achieved stability.
{¶30} It is important to emphasize that the law establishes that “parental
custody is presumed to be in the best interests of the child” and that it is William’s
burden to establish that Sydnie is an unfit mother. In re Holycross, 1999 WL
152853, *2 (3d Dist. Feb. 24, 1999); Depinet v. Norville, 2020-Ohio-3843, ¶ 14 (3d
Dist.). When considering the four avenues William could establish that Sydnie was
an unfit mother, there was no evidence that Sydnie had abandoned J.F. (1); there
was no evidence that Sydnie contractually relinquished custody of J.F. (2); and there
was no evidence that Sydnie was incapable of supporting or caring for J.F. (3). Thus,
the only remaining avenue available for William to establish that Sydnie was an
unfit mother was to establish that “an award of custody [to Sydnie] would be
detrimental to [J.F.].”
{¶31} William did present testimony that J.F. was flourishing in his care, and
there is really no dispute on that issue. However, there was competing testimony
from Sydnie’s witnesses that J.F. had been well-cared for when she was in Sydnie’s
-11- Case No. 13-24-36
custody. There was no compelling evidence presented that J.F. was inadequately
cared for when with Sydnie.
{¶32} It is true that Sydnie’s chosen profession could result in J.F. having to
move more often than a typical child, but this does not directly equate to the lifestyle
being “detrimental” to J.F. Such a holding would put in jeopardy the custody of
children everywhere who have parents with mobile careers. It is also true that
Sydnie improperly absconded with J.F., albeit after she learned Zachary had been
charged with numerous sexual assault crimes. Zachary’s actions do not, in any way,
excuse Sydnie’s actions, but they do provide some context.
{¶33} After reviewing all the evidence presented, and in particular the
GAL’s testimony that Sydnie was not “unfit,” we do not find that the trial court
abused its discretion by finding that William failed to meet his burden of proof
establishing that Sydnie was an “unfit” parent. While William, and the dissenting
judge, argue for a stronger emphasis to be placed on the child’s best interests, the
law indicates that to award custody of a child to a non-parent over a parent, the non-
parent must demonstrate that the parent is unfit. On the evidence presented, we do
not find that the trial court abused its discretion by determining William failed to
meet that burden. Therefore, William’s first and second assignments of error are
overruled.
-12- Case No. 13-24-36
Conclusion
{¶34} Having found no error prejudicial to William in the particulars
assigned and argued, his assignments of error are overruled and the judgment of the
Seneca County Common Pleas Court, Domestic Relations Division, is affirmed.
WILLAMOWSKI, J., concurs.
ZIMMERMAN, J., dissents. {¶35} While I respect the majority opinion’s diligent efforts in reaching its
conclusion, I must respectfully dissent from its decision to affirm the judgment of
the trial court denying William’s motion for legal custody of J.F. and designating
Sydnie as the residential parent and legal custodian of J.F. In my opinion, the
majority opinion’s determination that William failed to meet his burden of proving
Sydnie unfit or unsuitable, and its subsequent affirmation of Sydnie as J.F.’s
residential parent and legal custodian, rests upon a narrow interpretation of Ohio
law that, in my view, fails to adequately safeguard the paramount interest of the
child’s welfare.
{¶36} The majority opinion correctly outlines that jurisdiction in child
custody disputes typically arises under either R.C. 3109.04 or R.C. 2151.23. Scavio
v. Ordway, 2010-Ohio-984, ¶ 18. Specifically, R.C. 3109.04(A) governs
proceedings related to divorce, legal separation, or annulment, and other matters
pertaining to the allocation of parental rights. Id. When domestic relations courts
-13- Case No. 13-24-36
exercise jurisdiction under R.C. 3109.04, custody modification generally involves a
two-part test: first, determining if a change in circumstances has occurred; and
second, if so, assessing whether modification serves the child’s best interest and
satisfies one of three statutory conditions. Id. at ¶ 19. While I agree with the
majority that Zachary’s incarceration constitutes a change in circumstances, my
divergence with the majority opinion arises in the application of the second part of
this test, particularly as it pertains to custody awards involving non-parents.
{¶37} A foundational principle underlying both R.C. 3109.04 and R.C.
2151.23 is the fundamental right of parents to care for and retain custody of their
children. Id. at ¶ 20. This right is “paramount” when the parent is “suitable.” Id.
However, it is crucial to recognize that this parental right is not absolute. See
Heberling v. Deckard, 2024-Ohio-1535, ¶ 34 (3d Dist.). Rather, the first interest in
all custody matters is the welfare of the child. See In re Perales, 52 Ohio St.2d 89,
97-98 (1977) (noting that in cases concerning the controverted right to custody,
“[t]he welfare of the child is the interest given priority the ‘first’ interest”). Indeed,
“[t]he parent’s interest is recognized ‘by limiting the reasons for which parents may
be denied the custody of their children.’” Heberling at ¶ 34, quoting In re Perales
at 98.
{¶38} As the majority opinion correctly points out, Ohio law requires an
explicit finding of parental unsuitability on the record before awarding legal custody
to a nonparent. Scavio at ¶ 21; In re Hockstok, 2002-Ohio-7208, ¶ 29. To reiterate,
-14- Case No. 13-24-36
this unsuitability can be demonstrated by showing that: (1) the parent has abandoned
the child, (2) the parent contractually relinquished custody, (3) the parent has
become incapable of supporting or caring for the child, or (4) an award of custody
would be detrimental to the child. In re M.H., 2023-Ohio-3776, ¶ 41 (1st Dist.).
{¶39} The majority’s opinion, in my view, understates the significance of the
fourth circumstance: whether an award of custody to the parent would be
detrimental to the child. Importantly, when assessing this factor, the focus must be
on the potential harmful effect on the child. Heberling at ¶ 36. That is, while the
trial court must avoid a determination based purely on the best interest of the child,
it must consider the extent and magnitude of harm the child is likely to experience
if placed with his or her natural parent. Id. at ¶ 37. This consideration is critical,
and it can include evidence regarding, for example: a parent’s history of abuse or
neglect, lack of involvement, the child experiencing fear, or whether the child had
been living with individuals with whom he or she has established long and
significant relationships. Id. The majority opinion acknowledges this framework
but, crucially, fails to apply it with the necessary rigor to the facts of this case.
{¶40} Thus, based on my review of the specific facts and circumstances
presented by this case, I would find merit with William’s contention that the trial
court abused its discretion by denying his motion for legal custody of J.F.
Specifically, my examination of the record before this court demonstrates that the
trial court’s fitness and suitability determination focused solely on Sydnie’s
-15- Case No. 13-24-36
interests, neglecting to consider J.F.’s welfare in its custody placement decision.
This oversight, in my opinion, stems from a fundamental deficiency in Ohio
jurisprudence: the lack of a clear framework for applying the paramount
consideration of the “welfare of the child” in unique parent-non-parent custody
disputes. Given this fundamental deficiency in Ohio jurisprudence, I find it
necessary to address the proper scope of that consideration in this unique case.
{¶41} This case therefore highlights a crucial aspect of Ohio law concerning
the precise parameters of the “welfare of the child” within parental fitness and
suitability analysis. While Ohio courts require a determination of parental
unsuitability—which may include assessing detriment to the child—Ohio courts
have not explicitly defined what constitutes the child’s “welfare” in this context.
This lack of clear definition makes the standard susceptible to misinterpretation or
complete oversight during suitability determinations, particularly in complex cases
like this one.
{¶42} Importantly, Ohio law correctly acknowledges the paramount
importance of the child’s welfare, balanced against the strong parental right to raise
their children. However, unlike courts in other jurisdictions, Ohio has not expressly
articulated the specific factors that may constitute the child’s welfare beyond the
general concept of detriment. Courts in other states have recognized that the
“welfare of the child” analysis can encompass “‘a special or extraordinary reason or
circumstance’” that will justify third-party custody, including significant bonding
-16- Case No. 13-24-36
in a familial-custody relationship. Bowers v. Bowers, 543 S.W.3d 608, 617 (Mo.
2018), quoting C.L. v. M.T., 335 S.W.3d 19, 30 (Mo.App. 2011). See also Young v.
Young, 14 S.W.3d 261, 264 (Mo.App. 2000) (noting that “[s]ignificant bonding in
a familial-custody relationship with a third party . . . can constitute a special
circumstance”); In re Sofia S.S., 145 A.D.3d 787, 789 (N.Y. App. Div. 2016)
(considering the extraordinary circumstances when assessing the welfare of a child
in a custody dispute between a parent and a non-parent); B. O. v. S. O., 252
Md.App. 486, 514 (Md.App. 2021) (clarifying that “the ‘best interest of the child’
test is only to be considered where the parents are unfit or exceptional circumstances
exist.”).
{¶43} Notwithstanding the consideration of such exceptional circumstances,
it is imperative to distinguish this “welfare of the child” analysis, which focuses on
parental fitness, from the separate and distinct “best interest” analysis conducted
under R.C. 3109.04(F). Critically, these are distinct considerations. The “welfare
of the child” analysis, as it pertains to parental fitness, is a threshold determination
that must precede the application of R.C. 3109.04(F).
{¶44} Having established the distinct nature of the “welfare of the child”
analysis and its paramount importance in determining parental fitness, I now turn to
the specific facts and circumstances of this case to assess whether the trial court
properly applied this standard. For illustration of the trial court’s application of this
standard, the entirety of the trial court’s analysis concerning whether Sydnie is an
-17- Case No. 13-24-36
unfit or unsuitable parent, specifically from the standpoint of whether a custody
award would be detrimental to J.F., is reproduced below:
The [GAL] has been involved in this case for over the past eighteen (18) months. He made as thorough of an investigation as he was able, under the circumstances of the case. He opined it would be in the child’s best interest to stay where she has been since September 12, 2022, which is in the temporary custody of the child’s grandfather continuing to live with he, grandmother, and her aunt on the farm.
It is noteworthy, the [GAL] candidly admitted that despite his recommendations that it would be in the child’s best interest to remain in her present placement, that nevertheless he clearly and unequivocally felt [Phillips] did not abandon her child nor did she contractually release custody. He went on to represent mother was, and is, capable of caring and supporting her daughter, and although there may be some initial transition involving different people, that in the big picture, custody to mother would not be detrimental to her daughter. He lastly summed up his testimony that he saw nothing that would point to [Phillips] being unfit or unsuitable to raise her daughter.
(Doc. No. 206-207).
{¶45} After assessing the parameters of what constitutes detriment to the
child while considering the child’s welfare, alongside the strong parental preference,
I would conclude that the trial court’s analysis fails to adequately consider J.F.’s
welfare. Indeed, in my view, the trial court’s entry focuses exclusively on Sydnie’s
interests, relying heavily on the GAL’s assessment, which itself reveals a critical
deficiency. Specifically, this deficiency stems from the GAL’s misapplication of
the relevant standard.
-18- Case No. 13-24-36
{¶46} Importantly, my review of the record reflects that the GAL’s
assessment, presented as an “on the spot” evaluation of parental suitability,
highlights this shortcoming. Contrary to the required analysis of parental fitness
and the child’s welfare, the GAL testified that he did not consider parental
suitability; he considered only J.F.’s best interest when rendering his report and
recommendation. In other words, while the GAL’s testimony references J.F.’s “best
interest” in remaining in her current placement, his testimony failed to delve into
the specific aspects of her welfare that should have been considered. However, even
with this flawed approach, the GAL’s testimony still provides competent, credible
evidence that the trial court could have, and should have, considered in assessing
J.F.’s welfare.
{¶47} In particular, the record contains evidence of J.F.’s strong bond with
William and her extended family, as well as the stability she enjoys living on
William’s farm. These factors, as previously discussed, can constitute evidence of
those exceptional circumstances to be considered within the child’s welfare
analysis. Moreover, the GAL’s testimony regarding J.F.’s “underdeveloped”
academic status, contrasted with her social comfort around strangers—a direct result
of Sydnie’s transient lifestyle—provides further compelling evidence of the impact
of Sydnie’s actions on J.F.’s well-being. (May 23, 2024 Tr. at 818).
{¶48} Furthermore, the foregoing evidence, solely focused on J.F.’s welfare,
does not consider the evidence of Sydnie’s conduct that was presented at trial, such
-19- Case No. 13-24-36
as fleeing the jurisdiction and violating court orders, which provides even more
evidence related to J.F.’s welfare, and should have been considered and weighed by
the trial court (as exceptional circumstances) when assessing parental suitability.
Compare Ruiz v. Spinnelli, 162 A.D.3d 673, 673-674 (N.Y. App. Div. 2018)
(assessing that “[t]he mother’s conduct in relocating with the children to Florida
without seeking the permission of the father or of the Family Court, and concealing
the location of the children, raises a strong probability that she is unfit to continue
to act as the custodial parent, and constituted a change in circumstances sufficient
to warrant a change in custody”); Tori v. Tori, 103 A.D.3d 654, 655 (N.Y. 2013)
(“Interference with the relationship between a child and the noncustodial parent is
an act so inconsistent with the best interests of the child as to per se raise a strong
probability that the offending party is unfit to act as custodial parent.”).
{¶49} In sum, this evidence, readily available in the record, demonstrates, in
my opinion, that the trial court had ample information to conduct a thorough
analysis of J.F.’s welfare. The trial court’s failure to do so, instead relying solely
on the GAL’s cursory assessment of Sydnie’s suitability, constitutes an abuse of
discretion. Therefore, it is my opinion that the trial court abused its discretion by
denying William’s motion for legal custody of J.F. and by designating Sydnie as
J.F.’s residential parent and legal custodian. Accordingly, I would reverse the trial
court’s designation of Sydnie as J.F.’s residential parent and legal custodian, as well
as the trial court’s suitability determination, and remand the matter to the trial court
-20- Case No. 13-24-36
for a new trial consistent with my opinion. Importantly, my proposed resolution
would not render any decision on the ultimate outcome of Sydnie’s motion
requesting that the trial court designate her as J.F.’s residential parent and legal
custodian or as to William’s motion for legal custody. Instead, I would propose that
the trial court conduct a new hearing and analysis consistent with the law as outlined
in my opinion.
-21- Case No. 13-24-36
JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgments of
the trial court are affirmed with costs assessed to Appellant for which judgment is
hereby rendered. The cause is hereby remanded to the trial court for execution of
the judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
Juergen A. Waldick, Judge
John R. Willamowski, Judge
DISSENTS William R. Zimmerman, Judge
DATED: /jlm
-22-