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Change of Circumstances in Custody Litigation

Posted by attorney Roberta Roberts

It is well settled in Ohio that custody of a child from the custodial parent to the non custodial parent may only occur if at first there has been a change in circumstances to warrant such a modification of a prior court order allocating custody and that the change is in the child’s best interest.

R.C. 3109.04(E)(1)(a) authorizes a trial court to modify or terminate

a prior decree allocating parental rights and responsibilities. The statute outlines

what a court must consider in its determination of whether a modification of a

prior custody decree is warranted. Specifically, R.C. 3109.04(E)(1)(a) states the

following regarding modification of a prior custody decree:

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, 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. In

applying these standards, the court shall retain the residential parent

designated by the prior decree or the prior shared parenting 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 or both parents under a shared parenting decree agree to a

change in the designation of residential parent.

(ii) The child, with the consent of the residential parent or of both

parents under a shared parenting decree, 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.

When a trial court is asked to modify a prior custody decree, it must

first determine whether a change in circumstances has occurred with respect to the

child or the residential parent since the prior decree. Wyss v. Wyss, 3 Ohio App.3d

412, 414 (10th Dist. 1982). This finding should be made prior to weighing the

child’s best interest. The purpose of requiring a finding of a change in

circumstances is to prevent constant relitigation of issues that have already been

determined by the trial court. Clyborn v. Clyborn, 93 Ohio App.3d 192, 196 (3d

Dist. 1994). Therefore, the modification must be based upon some fact that has

arisen since the prior custody decree or was unknown at the time of the prior

custody decree. R.C. 3109.04(E)(1)(a).

It is not enough that changes have occurred in the non custodial parent’s home or life; the change must occur in the custodial parent’s/child’s home or life. This prevents the “flip-flopping" of the child and continuing court battles when the non residential parent makes life changes.

Additional resources provided by the author

R.C. 3109.04(E)(1)(a)

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