[Cite as In re B.C., 2026-Ohio-97.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: B.C. Case No. 25CA000025
Opinion and Judgment Entry
Appeal from the Guernsey County Court of Common Pleas, Juvenile Division, Case No. 24JG00203
Judgment: Affirmed
Date of Judgment Entry: January 12, 2026
BEFORE: William B. Hoffman, Kevin W. Popham, David M. Gormley, Appellate Judges
APPEARANCES: John Treleven, Esq., Treleven & Klingensmith, LLC, for Appellant- Mother; Elgine Heceta McArdle, Esq. McArdle Law Office, for Appellee-Father OPINION
Hoffman, P.J.
{¶1} Appellant J.J. (“Mother”) appeals the June 24, 2025 Journal Entry entered
by the Guernsey County Court of Common Pleas, Juvenile Division, which overruled her
objections to the magistrate’s February 21, 2025 decision, designating Appellee B.C., Jr.
(“Father”) the legal custodian and residential parent of the parties’ minor child (“the
Child”), and affirmed the same.
STATEMENT OF THE FACTS AND CASE
{¶2} Mother and Father are the biological parents of the Child. Mother has an
older child with another man (“the Sibling”). The parties were never married, but lived
together for three years. On May 9, 2024, Mother took the Child and the Sibling to
Cincinnati to visit her mother. Mother returned on the evening of May 27/early morning
of May 28, and found another woman in the home she shared with Father. An altercation
ensued between Mother and the other woman, which resulted in police involvement.
Father spent approximately one-half hour with the Child while the police addressed the
situation with Mother and the other woman. Mother immediately returned to Cincinnati
with the Child and the Sibling.
{¶3} On May 28, 2024, Mother met with Detective Sergeant Brian Carpenter of
the Guernsey County Sheriff’s Office and alleged Father had sexually abused the Sibling.
Mother subsequently presented the Child to Cincinnati Children’s Hospital, at which time
the Child was diagnosed with a diaper rash.
{¶4} On May 29, 2024, Father filed a pro se complaint for parentage, allocation
of parental rights and responsibilities, and parenting time. Mother sought a protection order from the Hamilton County Court of Common Pleas, Domestic Relations Division,
which was issued on June 24, 2024. The protected parties were Mother and the Sibling.
The magistrate conducted a hearing on Father’s complaint on July 10, 2024. Via
Magistrate’s Decision filed July 15, 2024, the magistrate designated Mother as the legal
custodian and residential parent of the Child, granted Father standard visitation, and
ordered Father to pay child support. The trial court approved and adopted the
magistrate’s decision on August 5, 2024.
{¶5} The Child was seen by Heather E. Bensman, Ph.D., at Cincinnati Children’s
Hospital on July 30, 2024. Mother informed Dr. Bensman, approximately two weeks
earlier, the Child began acting strangely, pulling on his penis and pushing the dog’s head
to his genitals. Mother had not observed the Child behave in this manner prior to May 9,
2024. Mother cancelled one follow-up appointment with Dr. Bensman and “no-showed”
three other appointments
{¶6} On August 2, 2024, Father filed a petition for contempt due to Mother’s
failure to bring the Child to visits. Subsequently, on August 7, 2024, Father filed a request
for an expedited date certain for his first weekend visit. On August 28, 2024, Mother filed
a motion for change of parenting time. Therein, Mother alleged Father had abused the
Child. Father filed a motion to dismiss and countermotion to modify parenting time on
September 11, 2024. The magistrate conducted a hearing on September 19, 2024.
{¶7} The magistrate issued a decision on September 23, 2024. The magistrate
remarked Mother accused Father of sexually abusing the Child, but did not present any
evidence or direct testimony to support her claim. The magistrate noted Mother “bluntly
testified that she will not obey an order of the Court,” adding “Father will never see [the Child] no matter what the Court says or does.” September 23, 2024 Decision of
Magistrate, p. 3. In support of her position, Mother cited Father’s May 14, 2018 conviction
for unlawful sexual conduct with a minor. The magistrate observed Father was released
from community control on May 14, 2021, and the parties lived together between 2021
and 2024. The magistrate commented, “[s]uch conviction did not bother Mother for the
three years they resided together.” September 23, 2024 Magistrate’s Decision. The trial
court approved and adopted the magistrate’s decision, denied Father’s motion to dismiss
Mother’s motion for change of parenting time, and postponed ruling on Father’s August
2, 2024 petition for contempt and September 11, 2024 motion to modify parenting time
as well as Mother’s August 28, 2024 motion for change of parenting time until the final
hearing scheduled for October 17, 2024. The trial court ordered Mother to comply with
the standard order of parenting time previously issued.
{¶8} On September 25, 2024, Mother filed a motion for appointment of a
Guardian ad Litem for the Child. Thereafter, on September 27, 2024, Mother filed an
emergency motion to suspend visitation as Father was currently under investigation for
child sexual abuse of the Sibling. Mother attached the Affidavit of Detective Sergeant
Brian Carpenter of the Guernsey County Sheriff’s Office. In his affidavit, Detective
Carpenter averred he was currently investigating an allegation of child sexual abuse
against Father and would be concerned for the Child’s safety during unsupervised visits.
The trial court, in a decision filed the same day, suspended Father’s parenting time
pending further order of the court. Following a hearing conducted on October 11, 2024,
the magistrate reinstated Father’s visitation with visits to take place at Cedar Ridge
Behavioral Solutions in Cambridge, Ohio. The trial court ordered visitation commence as soon as possible based upon availability at Cedar Ridge. The trial court approved and
adopted the magistrate’s decision on October 25, 2024.
{¶9} Father filed his first notice of failed compliance, supplemental petition for
contempt, and request for an ex-parte order transferring custody to him on November 1,
2024. Father filed his second notice of failed compliance, supplemental petition for
contempt, and request for an ex-parte order transferring custody to him on November 8,
2024, and his third notice on November 18, 2024. Mother filed a motion to modify terms
and conditions of supervised visitation on November 18, 2024. The magistrate conducted
a show cause hearing on November 25, 2024. Mother failed to appear at the hearing.
The magistrate heard evidence relative to Mother’s noncompliance with the trial court’s
October 25, 2024 Judgment Entry reinstating Father’s parenting time.
{¶10} Via decision issued December 2, 2024, the magistrate found Mother in
contempt and sentenced her to fifteen days in jail. The magistrate provided Mother with
an opportunity to purge the contempt by complying with the trial court’s order relative to
Father’s parenting time. The magistrate scheduled a final hearing to address all pending
motions for December 19, 2024.
{¶11} Between November 22, and December 16, 2024, Father filed his fourth,
fifth, sixth, and seventh notices of failed compliance and supplemental petitions for
contempt as to Mother’s failure to bring the Child to the November 22, November 29,
December 6, and December 13, 2024 visits. Mother filed a motion to continue on
December 17, 2024. Therein, Mother explained Detective Sergeant Carpenter had
completed his investigation and the county prosecutor was scheduled to present the case to the grand jury on December 20, 2024. The magistrate continued the final hearing and
suspended Father’s parenting time.
{¶12} After receiving a copy of the Amended Report of Grand Jury in which no
charges were filed against Father, the trial court scheduled a final hearing before the
magistrate for February 20, 2025. Via Judgment Entry filed January 22, 2025, the trial
court ordered Mother to bring the Child to the hearing. Mother appeared at the hearing
without the Child. The following evidence was presented at the hearing:
{¶13} Attorney Elgine McArdle, counsel for Father, called Mother as the first
witness. When Attorney McArdle asked, “Where is [the Child]?,” Mother responded, “Not
here.” Transcript of February 20, 2025 Hearing at p. 6. When asked again, Mother
answered, “Not here.” Id. The trial court directed Mother to answer the question. Mother
informed the court the Child was with a babysitter in Cincinnati. Mother initially refused to
provide the address of the babysitter, then admitted she did not know the actual address,
but knew where she lived and detailed the travel route from her mother’s home, where
she lived, to the sitter’s location. The trial court asked the name of the babysitter, Mother
gave only a first name, claiming she did not know the babysitter’s surname. Mother also
stated she did not know the babysitter’s phone number off the top of her head, explaining
the number was programmed into her phone. However, Mother left her phone in
Cincinnati on the day of the hearing.
{¶14} Mother acknowledged the trial court’s January 22, 2025 Judgment Entry
advised her failure to bring the Child to the hearing would result in the issuance of a capias
for her arrest. However, Mother insisted she was “prepared to go to jail. . . to protect [the
Child.” Id. at p. 16. Regarding her failure to allow Father to see the Child, Mother explained she did not have transportation because her mother’s car, which she used, had
been wrecked and she did not have the money to travel to and from the visits. Mother
did not advise Father the vehicle was fixed shortly before Christmas because Father’s
visitation had been suspended by that time. Mother insisted Father sexually abused the
Child despite the fact the grand jury decided not to indict Father and despite the fact
Father had not seen the Child since May 27, 2024. Mother conceded there was no abuse
before May, 2024.
{¶15} Attorney McArdle asked, “You have no intention whatsoever of ever letting
[Father] see [the Child]. Correct?” Id. at p. 23. Mother responded:
If it’s supervised and it is in [the] best interest of my three year old,
not [the] best interest of me or of [Father]. The three-hour drive for a three
year old is uncalled for. A three year old that is potty training, having to
drive that three hours for a two-hour visit to turn around and have to drive
that three hours back is unreasonable for a three year old toddler.
Id.
{¶16} Mother explained, although the trial court ordered supervised visits, she did
not bring the Child to the visits because of transportation. Mother admitted she attempted
to give her mother full custody of the Child through Hamilton County Court of Common
Pleas. Mother asserted, “I tried to give my mom full custody because I don’t want [Father]
being alone with my son.” Id. at p. 24. Mother also filed a petition to establish paternity
in Hamilton County Court of Common Pleas despite Father being named as father on the Child’s birth certificate. Mother proceeded to explain why she did not believe Father was
the Child’s father and claimed she “mentioned it several times” to the trial court. Id. at p.
25.
{¶17} Mother was questioned extensively regarding each supervised visit to which
she failed to bring the Child. Mother responded her failure was due to a lack of
transportation or doctors’ appointments. Attorney McArdle questioned, “From the time
this Court has awarded my client parenting time, you have not complied with any court
order; is that correct?” Id. at p. 38. Mother answered, “I’m not allowing him to see [the
Child] unsupervised. And in the supervised visits, I have reasons why I could not be here.”
Id. Mother conceded she lived with Father for three years and, during those years, “there
were never any issues with regard to sexual abuse.” Id. at p. 43. Mother further admitted
she did not honor or facilitate the court ordered parenting time awarded to Father. Mother
claimed she did not know Father was a sex offender until after she was pregnant.
{¶18} Lexi Huff, supervised visitation coordinator at Cedar Ridge Behavioral
Solutions, testified Father’s first supervised visitation was scheduled for November 1,
2024. The visits were once a week for two hours. Father appeared for his seven
scheduled visits, but Mother failed to bring the Child and/or failed to notify the facility she
would not have the Child at the visit each time. Father was prepared for the visits, arriving
early and bringing food and toys. Huff contacted Mother after she failed to bring the Child
to the November 1, 2024 visit. Mother advised Huff she did not have transportation
because her mother’s car was involved in an accident and was inoperable. Mother simply
“no showed” the next three scheduled visits. Huff was informed Mother and the Sibling
were sick and would not be present for the November 29, 2024 visit. The following week, Huff phoned Mother when she did not come to the visit. Huff eventually texted Mother’s
mother, who told Huff Mother was sick and had been taken by ambulance to the hospital.
Mother advised Huff she did not bring the Child to the final visit as the Child had an
appointment.
{¶19} Attorney McArdle called Chanda Golden, Mother’s mother, and questioned
her as if upon direct examination. When Attorney McArdle asked, “And do you know
where [the Child] currently is?,” Golden responded, “Do I know where he’s at? Yes, I do.”
Id. at p. 74. Attorney McArdle asked, “And where is he?” Id. Golden replied, “I’m not –
that’s up to my daughter.” Id. After the trial court ordered Golden to answer the question,
Golden revealed the Child was with her husband at her home in Cincinnati. Golden further
revealed the babysitter Rhonda was her neighbor and had provided child care for the
Child. Golden acknowledged she had a rental vehicle while her car was being repaired
following the accident.
{¶20} Attorney McArdle rested. Attorney Jacqueline Hunt, counsel for Mother,
called Mother on direct. Mother testified she was willing to allow supervised visitation, but
had reasons for not being able to bring to the Child to the previously scheduled ones.
Mother stated she does not have her own vehicle and is currently unemployed. Mother
opposed having the Child travel six hours for a two hour visit with Father, but conceded
she had not requested a modification to make the situation easier. Mother indicated she
was willing to work with Father to resolve the issue.
{¶21} Via Decision filed February 20, 2025, the magistrate found Mother in
contempt of court for failure to comply with the trial court’s October 25, 2024 Judgment
Entry as ordered in its December 2, 2024 Judgment Entry. The magistrate ordered Mother immediately begin serving the fifteen-day sentence previously imposed as Mother
had failed to purge her contempt. The magistrate also found Mother in contempt for failing
to bring the Child to four supervised visits as set forth in Father’s fourth, fifth, sixth, and
seventh notices of failed compliance and supplemental petitions for contempt. The
magistrate further found Mother in contempt for failing to have the Child at the hearing as
ordered. The magistrate imposed an aggregate thirty-day sentence, but provided Mother
with an opportunity to purge the contempt by releasing the Child to Father’s custody by
March 5, 2025.
{¶22} Via Decision filed February 21, 2025, the magistrate named Father the legal
custodian and residential parent of the Child. The magistrate determined:
* * * a change in circumstances has taken place. Mother has done
and will do whatever is necessary to prevent Father from seeing [the Child].
Mother has done and is doing whatever is necessary to frustrate effective
parenting by totally excluding Father. Mother’s conduct constitutes an
event, occurrence or situation that has a material adverse effect upon [the
Child]. Couple this change along with mother’s refusal to promote love and
affection between [the Child] and Father, this change is one of substance.
(Citations omitted.)
* * * in looking at the best interests of [the Child], Mother is not and
will not promote love and affection between Father and [the Child]. Mother
has cut off all contact between Father and [the Child]. She even has refused
supervised parenting tome [sic] for Father. Mother’s conduct/actions are belligerent and hateful and as long as [the Child] remains in Mother’s care
and custody Father will never have a chance to develop a relationship with
[the Child]. See, R.C. 3109.04(F)(1)(e), this Court is concerned about
Mother’s mental health based on her conduct: R.C. 3109.04(F)(1)(f); and,
R.C. 3109.04(F)(1)(g), although a shared parenting plan is not involved.
Mother’s conduct clearly demonstrates that she will not facilitate anything.
Id. at pp. 2-3.
{¶23} Mother filed timely objections to the magistrate’s decision on March 3, 2025.
Father filed a response to Mother’s objections on the same day. On March 5, 2025,
Father was reunited with the Child with the assistance of law enforcement. Upon receipt
of the transcript of the February 20, 2025 hearing, Mother filed her first amended
objections to the magistrate’s decision on June 9, 2025. Father filed a response thereto
on June 13, 2025.
{¶24} Via Journal Entry filed June 24, 2025, the trial court overruled Mother’s
objections to the magistrate’s decision and affirmed the magistrate’s February 21, 2025
decision. Mother filed a motion to stay execution of judgment pending appeal, which the
trial court denied.
{¶25} It is from the June 24, 2025 Journal Entry Mother appeals, raising as her
sole assignment of error: THE TRIAL COURT ERRED IN GRANTING CUSTODY OF THE
MINOR CHILD TO FATHER AND THAT DECISION WAS CONTRARY TO
LAW.
I
{¶26} In her sole assignment of error, Mother challenges the trial court’s decision
to change custody from Mother to Father.
Standard of Review
{¶27} We review a trial court's decision allocating parental rights and
responsibilities under an abuse of discretion standard. Miller v. Miller, 37 Ohio St.3d 71
(1988). In order to find an abuse of discretion, we must determine the trial court's decision
was unreasonable, arbitrary, or unconscionable, and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). Furthermore, as an
appellate court reviewing evidence in custody matters, we do not function as fact finders;
we neither weigh the evidence nor judge the credibility of witnesses. Our role is to
determine whether there is relevant, competent, and credible evidence upon which the
fact finder could base his or her judgment. Dinger v. Dinger, 2001-Ohio-1386 (5th Dist.)
{¶28} Because custody issues are some of the most difficult and agonizing
decisions a trial court must make, a trial court must have wide latitude in considering all
the evidence. Day v. Day, 2023-Ohio-2428, ¶ 25 (5th Dist.), citing Davis v. Flickinger, 77
Ohio St.3d 415, 418 (1997). The trial court "is best able to view the witnesses and observe
their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Id. at ¶ 24, citing Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80 (1984).
Analysis
{¶29} The power of a court to modify an existing custody decree is provided in
R.C. 3109.04(E)(1)(a), which states, in pertinent part:
The court shall not modify a prior decree allocating parental rights
and responsibilities for the care of children 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 * * * and that the
modification is necessary to serve the best interest of the child. In applying
these standards, the court shall retain the residential parent designated by
the prior decree * * *, unless a modification is in the best interest of the child
and one of the following applies:
(i) The residential parent agrees to a change in the residential parent
* * *.
(ii) The child, with the consent of the residential parent * * *, has been
integrated into the family of the person seeking to become the residential
parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the child. {¶30} Mother challenges each of the trial court’s findings relative to the three
factors the court must find before modifying custody. We shall address each in turn.
{¶31} First, Mother contends the trial court erred in determining a change of
circumstances occurred.
{¶32} R.C. 3109.04 does not define the concept of "change in circumstances."
Oyler v. Lancaster, 2020-Ohio-758, ¶ 24 (5th Dist.). However, Ohio courts have held the
phrase is intended to denote "an event, occurrence, or situation which has a material and
adverse effect upon a child." Id., citing Wyss v. Wyss, 3 Ohio App.3d 412 (10th Dist.
1982). Additionally, the change of circumstances must be "one of substance, not a slight
or inconsequential change." Id., citing Davis v. Flickinger, 77 Ohio St.3d at 418.
{¶33} Mother maintains “[t]he trial court focused its entire inquiry on whether a
change in circumstances occurred around [the Child]” based upon Mother denying Father
parenting time rather than considering prior findings Father was not monogamous while
he and Mother were cohabitating and Father’s actions resulted in the issuance of an order
of protection. We disagree.
{¶34} Our review of the record establishes the trial court did not focus solely on
Mother’s failure to bring the Child to court-ordered, scheduled supervised visits between
November 1, and December 13, 2024. The trial court specifically found, and the record
supports, Mother had done and would do whatever necessary to prevent Father from
seeing the Child and Mother had done and was doing whatever necessary to frustrate
effective parenting by completely excluding Father. From the beginning of the case,
Mother made repeated attempts to thwart Father’s parenting time. {¶35} The trial court granted Father standard visitation in mid-July, 2024. In
August, 2024, Mother filed a motion for change of parenting time, alleging Father had
abused the Child. The magistrate conducted a hearing on September 19, 2024. In his
decision filed September 23, 2024, the magistrate remarked Mother accused Father of
sexually abusing the Child, but did not present any evidence or direct testimony to support
her claim. The magistrate noted Mother “bluntly testified that she will not obey an order
of the Court,” adding “Father will never see [the Child] no matter what the Court says or
does.” September 23, 2024 Decision of Magistrate, p. 3. The trial court ordered Mother
to comply with the standard order of parenting time previously issued. However, on
September 27, 2024, Mother filed an emergency motion to suspend visitation, explaining
Father was under investigation for child sexual abuse of the Sibling. The trial court
immediately suspended Father’s visitation.
{¶36} Following an October 11, 2024 hearing, the magistrate reinstated Father’s
visitation, but ordered such be supervised. Supervised visitation was scheduled to begin
on November 1, 2024. Mother failed to bring the Child to any supervised visits. Further,
Mother was ordered to bring the Child to the February 19, 2025 final hearing. Mother did
not bring the Child to the hearing and outright lied to the trial court as to the Child’s
whereabouts.
{¶37} Upon review of the entire record in this matter, we find the trial court did not
abuse its discretion in finding a change in circumstances. As noted supra, the trial court
is “best able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.” Seasons Coal Co. v Cleveland, 10 Ohio St.3d at 80. Deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much
evident in the parties' demeanor and attitude that does not translate to the record well.”
Davis v. Flickinger, 77 Ohio St.3d at 419.
{¶38} Next, Mother submits the trial court did not appropriately apply the best
interest factors in awarding custody to Father. Mother asserts the entirety of the trial
court’s best interest analysis was the fact Mother denied Father parenting time. We
disagree.
{¶39} R.C. 3109.04(F) states, in determining the best interest of a child, "the court
shall consider all relevant factors, including but not limited to:”
(a) The wishes of the child's parents regarding the child's care;
(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child's wishes and concerns as to
the allocation of parental rights and responsibilities concerning the child,
the wishes and concerns of the child, as expressed to the court;
(c) The child's interaction and interrelationship with the child's
parents, siblings, and any other person who may significantly affect the
child's best interest;
(d) The child's adjustment to the child's home, school, and
community;
(e) The mental and physical health of all persons involved in the
situation; (f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights * * *
(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
parent’s right to parenting time in accordance with an order of the court * *
*
{¶40} Mother asserts “[t]he trial court failed to consider the following facts, which
should have weighed on the best-interest determination: 1) Father was a tier II, child
victim, registered sex-offender, 2) Father [sic] was the protected party in an Order of
Protection from Hamilton County Domestic Relations Court, 3) that Father was not
monogamous during the period the parents cohabitated and introduced at least one new
partner to the child, 4) the child resided with his sibling in Mother’s residence, 5) the child
did have a sibling in Father’s residence, but that child ‘left’ upon turning eight-years-old,
6) the Court itself suspended Father’s parenting time twice * * * for 3 of the prior 5 months
whereas Mother denied it for the middle 2 months of the previous 5 months, 7) Mother
had been the primary caregiver for the child for the child’s entire life, 8) the child never
resided alone with Father, 9) the Child’s wishes, and 10) the history of child abuse and
domestic violence for Father.” Brief of Appellant at pp. 10-11.
{¶41} The best interest determination focuses on the child, not the parent. In re
C.T., 2020-Ohio-4965, ¶ 57 (5th Dist.), citing, In re N.B., 2015-Ohio-314, ¶ 59 (8th Dist.).
“No one factor is dispositive.” Carr v. Carr, 2016-Ohio-6986, ¶ 22 (12th Dist.) Rather, the
trial court has discretion to weigh any and all relevant factors as it sees fit. Id. The trial court is not required to separately address each best interest factor enumerated in R.C.
3109.04. (Citation omitted.) Baker-Chaney v. Chaney, 2017-Ohio-5548, ¶ 25 (5th Dist.).
Mother has not presented any evidence to establish the trial court did not consider the
aforementioned facts in determining it was in the best interest of the Child to grant custody
to Father.
{¶42} The trial court found Mother had not and would not promote love and
affection between the Child and Father. Mother cut off all contact between the Child and
Father, refusing to comply with court-ordered supervised parenting time. The trial court
further found “as long as [the Child] remains in Mother’s care and custody Father will
never have a chance to develop a relationship with [the Child].” Mother’s conduct clearly
demonstrated she would not facilitate any contact, even minimal, between the Child and
Father. Mother's interference with Father's relationship with the Child was substantial,
malicious, and ongoing. There was nothing to show Mother would change this behavior
should she maintain custody of the Child.
{¶43} “[T]he best interest of a child encompasses not only the home environment,
but also the involvement of both parents. In today's society that fully admits the need for
parenting by both parents, each parent should have full involvement in a child's life, where
possible and desired by the parent.” Davis v. Flickinger, 77 Ohio St. 3d at 419.
Accordingly, we find the trial court did not abuse its discretion in finding a change of
custody to Father was in the best interest of the Child.
{¶44} Finally, Mother claims the trial court failed to consider whether the harm
from a change in custody to Father, a tier II sex offender, outweighed the benefits to the
Child. We disagree. The trial court had all of the facts surrounding Father’s conviction prior to the final hearing. Mother testified she learned of Father’s conviction and status as
a registered sex offender while she was pregnant with the Child. Despite this information,
Mother stayed with Father, gave birth to the Child, and she, the Sibling, and the Child
lived with Father for approximately three years. Mother presented no substantiated
evidence a change in custody to Father would harm the Child. The Child needs both
parents in his life.
{¶45} As noted by our Brethren in the Fourth District Court of Appeals, “children
need to know that they are loved by both parents regardless of the antagonism the
parents might feel for each other. Beekman v. Beekman, 96 Ohio App.3d 783, 789 (4th
Dist. 1994). “It is the duty of each parent to foster and encourage the child's love and
respect for the other parent, and the failure from that duty is as harmful to the child as is
the failure to provide food, clothing, or shelter.” Id.
{¶46} Within her sole assignment of error, Mother argues the trial court did not
conduct an independent review of the magistrate’s decisions as required by Juv.R.
40(D)(4). Mother suggests, because the journal entries adopting the magistrate’s
decisions were filed contemporaneously with those decisions and because the judge’s
name is misspelled in two of the entries, the trial court did not conduct a “judicial review.”
We disagree.
{¶47} Once a party objects to a magistrate's decision in accordance with Juv.R.
40, the trial court must "undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the factual issues and appropriately
applied the law." Juv.R. 40(D)(4)(d). In re F.M.B., 2011-Ohio-5368, ¶ 9 (4th Dist.). {¶48} “Ordinarily, a reviewing court will presume that the trial court performed an
independent analysis in reviewing the magistrate's decision.” (Citation omitted). Id. at ¶
11. “Thus, the party asserting error bears the burden of affirmatively demonstrating the
trial court's failure to perform its duty of independent analysis. (Citations omitted.) Id.
“Further, simply because a trial court adopted the magistrate's decision does not mean
that the court failed to exercise independent judgment.” (Citation omitted.) Id. “Juv.R.
40(D)(4) allows the trial court to adopt the magistrate's decision if the court fully agrees
with it.” (Citations omitted.) Id. There is nothing in the record before this Court to suggest
the trial court failed to conduct an independent review of the magistrate’s decisions.
{¶49} Based upon the foregoing, Mother’s sole assignment of error is overruled.
The judgment of the Guernsey County Court of Common Pleas, Juvenile Division, is
affirmed. Costs assessed to Appellant.
By: Hoffman, P.J.
Popham, J. and
Gormley, J. concur