The Ohio Supreme Court recently clarified that when parents terminate a shared-parenting plan and seek to designate one parent as the residential parent and child’s legal custodian, a trial court need only to determine the child’s best interest when selecting the parent.

A Supreme Court majority resolved a conflict among Ohio appeals courts as to whether a trial court must also consider a “change in circumstances” along with the child’s best interest when ending a shared-parenting arrangement and picking one parent as the residential parent while granting the other parent several rights, including visitation.

Writing for the Court majority, Justice Melody J. Stewart explained that under R.C. 3109.04, the procedures are different when a trial court needs to modify a shared-parenting plan and when it terminates a shared-parenting decree and plan. When a plan and decree are terminated, a court need only consider the child’s best interest, she wrote.

The decision affirmed the Tenth District Court of Appeals, which upheld the Franklin County Juvenile Court’s decision to designate K.B. as the sole residential parent and legal custodian of a child she had in 2012 with M.G.

Chief Justice Maureen O’Connor and Justices Judith L. French, Patrick F. Fischer, R. Patrick DeWine and Michael P. Donnelly joined Justice Stewart’s decision.

In a concurring opinion, Justice Sharon L. Kennedy noted that M.G. relied on the Supreme Court’s 2007 Fisher v. Hasenjager decision, which she stated was wrongly decided. She wrote that explicitly overruling Fisher, which the majority opinion failed to do, would end any confusion by lower courts on how to apply the law when parents are seeking to modify or terminate shared-parenting plans.

K.B. and M.G. ended their relationship in 2014 and entered into a shared-parenting plan for their minor child, following the procedures under R.C. 3109.04. A court approves a shared-parenting plan by entering a shared-parenting decree.

Less than a year after approving the plan, M.G. asked for full custody of the couple’s child. K.B. responded with a request to terminate the shared-parenting plan and award her full custody. Both M.G. and K.B. indicated that they would seek to modify the plan as an alternative to terminating it.

After several hearings in 2017, the trial court terminated the plan and designated K.B. as the sole residential parent and legal custodian. The court noted various reasons why the decision was in the child’s best interest.

M.G. appealed to the Tenth District arguing that under R.C. 3109.04(E)(1)(a), before approving the change in the custody relationship, the trial court must find both a change of circumstances occurred with either the child or parents, and that the change is in the child’s best interest. The Tenth District affirmed the trial court’s decision, but noted its ruling was in conflict with a Fifth District Court of Appeals decision.

M.G. appealed to the Supreme Court, which agreed to consider his case and the conflict among the appeals court decisions.

Justice Stewart explained R.C. 3109.04 establishes the process for allocating parental rights and responsibilities between the separating parents of a minor child. The parents can agree to a shared-parenting plan they develop and the trial court approves by decree, or one parent can be designated the residential parent and legal custodian, the opinion stated.

Once the court enters a shared-parenting decree, parents have the option to seek a modification to the plan. The law requires the court to determine if the change is in the child’s best interest and if “a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents” before agreeing to modify the plan.

However, when parents ask to terminate a shared-parenting plan, the court follows R.C. 3109.04(E)(2)(c), which only requires the court to determine that the plan being terminated is not in the child’s best interest.

The following section, R.C. 3109.04(E)(2)(d), states that when a plan is terminated, the court proceeds as if the original shared-parenting decree had never been granted or was never requested by the parents.

“As noted above, if neither parent has ever filed for share parenting, the court, in accordance with the best interest of the child, is to allocate parental rights and responsibilities to one parent and designate that parent as the residential parent and legal custodian of the child,” the opinion stated.

The Court concluded that the trial court made no errors in selecting K.B.

M.G. had argued the circumstances between him and K.B. were identical to the couple separating in the Fisher case. The Ohio Supreme Court’s opinion stated that while M.G. is correct that the facts in the case are similar, the legal issue is different, and Fisher does not apply.

The opinion noted that in the Fisher case, the appeals court may have incorrectly determined that the couple was seeking to modify their shared-parenting plan. The Court noted that a modification does require consideration of a change in circumstances. Unlike Fisher, in this case, the parties maintain that their plan is being terminated and they dispute the argument that the plan is being modified, the opinion noted.

The Court stated every appellate court in Ohio, except the Fifth District, has ruled that when there is a termination of a shared-parenting plan, then a finding of a charge in circumstances in not required.

In her concurrence, Justice Kennedy noted that the appeals courts have found ways to distinguish the shared-parenting cases before them from the facts in Fisher to make the Fisher decision irrelevant. She wrote the courts had to make such efforts because they do not have the power to overrule the Supreme Court.

“But we do have that power, and we should affirmatively state what most domestic-relations courts and courts of appeals have long recognized by their refusal to apply Fisher — that Fisher was wrongly decided and should be overruled,” she stated.