Change of Circumstances in Custody Litigation
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
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.