In re V.B.

2018 Ohio 2375

• Court: Ohio Court of Appeals
• Decided: June 19, 2018
• Docket: C-170063
• Status: Published

Opinion

[Cite as In Re: V.B., 2018-Ohio-2375.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: V.B. : APPEAL NO. C-170063 TRIAL NO. F15-441X :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed from is: Affirmed

Date of Judgment Entry on Appeal: June 20, 2018

Suhre & Associates, LLC, and B. Bradley Berry, for Appellee,

Turner Legal Service, LLC, and Jamie L. Turner, for Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

C UNNINGHAM , Presiding Judge.

{¶1} Appellant father challenges the judgment of the Hamilton County

Juvenile Court adopting the magistrate’s decision awarding legal custody of his

minor child, V.B., to the child’s mother.

{¶2} V.B. was born on October 18, 2009. While his parents were not

married at the time of his birth, they lived together and raised V.B. for the next five

years. V.B. suffers from microcephaly and related developmental delays. He

requires frequent medical care and therapy. Mother often attended these

appointments. Father was the principal earner for the family.

{¶3} After the couple separated, father filed a petition in juvenile court

seeking sole custody of V.B. The matter was referred to a magistrate. During an

extensive pretrial period, father filed a proposed, but unsigned, shared-parenting

plan. Though she sought sole custody, in response, mother filed her own proposed,

unsigned shared-parenting plan. But neither party separately filed a pleading or

motion seeking shared parenting as required under R.C. 3109.04(G). V.B.’s guardian

ad litem (“GAL”) also filed a written report recommending that shared parenting

would be in V.B.’s best interests, and expressing concern about whether mother

would fully involve father in major decisions were she to be awarded custody.

{¶4} Following a three-day trial at which both parties and the GAL testified,

the magistrate issued a detailed written decision. The magistrate noted that she was

without authority to consider the appropriateness of a shared-parenting plan

because neither parent had filed a pleading or motion requesting shared parenting.

After reviewing the relevant statutory factors, the magistrate allocated the parental

rights and responsibilities for V.B.’s care to mother. The magistrate also ordered that

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father have substantial time with V.B. and included a detailed visitation plan in her

decision.

{¶5} Father timely filed objections to the decision, challenging whether the

magistrate was precluded from issuing a shared-parenting plan, and whether she had

properly considered the GAL’s recommendations. The juvenile court reviewed the

complete record of the proceeding, overruled the objections, adopted the

magistrate’s decision without taking additional evidence, and entered judgment.

{¶6} The two issues raised in father’s objections form the basis of the two

assignments of error raised in this appeal. Father first argues that despite his failure

to file a pleading or motion requesting shared parenting, under Ohio common law

the juvenile court retained full discretion to adopt a shared-parenting plan and erred

in failing to do so. We must disagree.

{¶7} The General Assembly has provided that the juvenile court shall

exercise its jurisdiction in child-custody matters not under the common law but in

accordance with R.C. 3109.04. See R.C. 2151.23(F)(1); see also In re Poling, 64 Ohio

St.3d 211, 216, 594 N.E.2d 589 (1992); In re M., R., & H. Children, 1st Dist. Hamilton

No. C-170008, 2017-Ohio-1431, ¶ 31.

{¶8} Here, neither parent “file[d] a pleading or motion,” as required under

R.C. 3109.04(G), requesting the court to grant both parents shared parental rights

and responsibilities for the care of V.B. Therefore, shared parenting was not an issue

before the court. See Rymers v. Rymers, 11th Dist. Lake No. 2009-L-160, 2010-

Ohio-6439, ¶ 24; see also Cuvar v. Cuvar, 2d Dist. Greene No. 08CA0056, 2009-

Ohio-4114, ¶ 7. In the absence of a shared-parenting pleading or motion, the

magistrate and the juvenile court were required to “allocate the parental rights and

responsibilities for the care of the child to one of the parents.” R.C. 3109.04(A)(1).

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Thus, the juvenile court did not err in refusing to award shared parenting. The first

assignment of error is overruled.

{¶9} Father next contends that the magistrate and the juvenile court failed

to give full consideration to the GAL’s recommendations. In light of our resolution of

the first assignment of error, we cannot say that the magistrate and juvenile court

erred in failing to follow the GAL’s shared-parenting recommendation. But father

also maintains that the court disregarded the GAL’s other concerns about awarding

sole custody to mother.

{¶10} Under R.C. 3109.04(A)(1), the juvenile court is to decide to whom the

parental rights and responsibilities for the care of a child shall be awarded, giving

paramount consideration to the best interests of the child. We review the juvenile

court’s ruling on the objections, and its decision to adopt the magistrate’s custody

decision only for a showing of an abuse of discretion. See Miller v. Miller, 37 Ohio

St.3d 71, 74, 523 N.E.2d 846 (1988); see also In re D.M., 1st Dist. Hamilton No. C-

140648, 2015-Ohio-3853, ¶ 11.

{¶11} Under the R.C. 3109.04 best-interests test, no single factor is

controlling. See Lynch v. Lynch, 6th Dist. Huron No. H-02-022, 2003-Ohio-1039, ¶

31. The weight to be given to any single factor lies within the court’s discretion. See

In re M., R., & H. Children, 1st Dist. Hamilton No. C-170008, 2017-Ohio-1431, at ¶

34. Thus, the magistrate and the juvenile court were not bound to follow the GAL’s

recommendations. See In re Graham, 167 Ohio App.3d 284, 2006-Ohio-3170, 854

N.E.2d 1126, ¶ 32 (1st Dist.); see also In re M.W., 8th Dist. Cuyahoga No. 105565,

2017-Ohio-8580, ¶ 24. As with any other witness, the magistrate and the juvenile

court were entitled to resolve disputes as to the GAL’s credibility and the weight to be

4 OHIO FIRST DISTRICT COURT OF APPEALS

given her report. See Baker v. Baker, 6th Dist. Lucas No. L-03-1018, 2004-Ohio-

469, ¶ 30.

{¶12} Here, the magistrate and the juvenile court each reviewed and applied

the best-interests factors under R.C. 3109.04(F). The magistrate found that V.B.

interacts well with both parents but, as the GAL noted at trial and in her report,

V.B.’s mother seems better able to control the child. See R.C. 3109.04(F)(1)(c). Both

parents participate in V.B.’s care and major medical decisions, though, by mutual

agreement, mother is the child’s primary caregiver. Father is up to date on child

support payments. See R.C. 3109.04(F)(1)(g). But in light of his failures to return

V.B. to his mother at the agreed time and to keep mother apprised of a recent change

of address, the magistrate found that mother was more likely to honor and facilitate

court-ordered parenting time. See R.C. 3109.04(F)(1)(f).

{¶13} The record reveals that V.B.’s mother and father are both capable and

loving parents. At trial, each was effective in highlighting deficiencies in the other’s

parenting skills. However, the magistrate’s and the juvenile court’s decision that

mother was better able to provide the stable environment and care necessary for

V.B.’s development is well supported in the record. See In re D.M., 1st Dist.

Hamilton No. C-140648, 2015-Ohio-3853, at ¶ 12. The second assignment of error is

overruled.

{¶14} The judgment of the juvenile court is affirmed.

Judgment affirmed.

ZAYAS and DETERS, JJ., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.