Fisher v. Hasenjager

Pfeifer, J.,

dissenting.

{¶ 38} I'dissent because this case involves a termination of a shared-parenting decree pursuant to R.C. 3109.04(E)(2)(c). That statute allows a court to terminate a final shared-parenting decree merely upon the request of one or both of the parents or whenever the court “determines that shared parenting is not in the best interest of the children.” The majority relies on the appellate court’s characterization of the action below as a modification of the shared-parenting decree, but a review of the trial record indicates that both parents sought to terminate shared parenting and that the trial court gave them what they requested.

{¶ 39} The trial court writes in its judgment entry that it is terminating the shared-parenting arrangement: “The court finds it is in the best interest of the minor child Demetra and at the request of the parties, does hereby terminate the shared parenting plan previously entered into by the parties and ordered by this court.”

{¶ 40} The trial court could not have been clearer. The appellate court makes much of the fact that under the new order, the only major change from the shared-parenting agreement was that instead of equally allocating parental rights and responsibilities, the trial court provided that Hasenjager was the residential parent and legal custodian of Demetra. This was, in fact, a major change that completely shifted the legal status of each parent. Each parent separately moved the court to be named Demetra’s residential parent and legal custodian, thus asking the court to grant them a status that was inconsistent with shared parenting.

{¶ 41} At the hearing, both parties made it known that they sought a termination of shared parenting. Hasenjager testified as follows:

{¶ 42} “Q. [You’ve] asked the court to terminate the shared-parenting plan. Why did you ask the court to do that?

{¶ 43} “A. Because I feel uncomfortable in lieu of this past situation.”

*62 {¶ 44} Later, Hasenjager testified:

{¶ 45} “Q. If the court would see fit to terminate the shared-parenting plan and if the court would designate you as the custodial parent of Demetra, what do you feel would be a proper parenting plan in terms of how often should she see her dad?

{¶ 46} “A. I think she should still see her father on a regular basis. It’s good for them to continue a relationship with one another. The scheduling that we have now, I think, works fíne for the time being. I have her while he’s working, and he has her while I’m working; and then we trade off on the weekends so — .”

{¶ 47} Likewise, in his testimony, Fisher testified that although shared parenting is theoretically beneficial, he thought that it could not work in his situation:

{¶ 48} “Q. Do you feel that it’s in the child’s best interest that this shared-parenting plan continue or cease?

{¶ 49} “A. I think that the shared-parenting plan is a good idea for a child. I think that in our particular situation, it would be beneficial to Demetra to have one party stand firm and the other party be a visitation party.

{¶ 50} Q. And what do you think is in the child’s best interest as far as that stand-firm party and the visiting party?

(¶ 51} “A. I think I’ve shown over the past two years, two and a half years, that I’m very stable and reliable. And I think that if I was custodial parent, I would be fair and keep this thing on track.”

{¶ 52} Fisher testified later:

{¶ 53} “Q. In a nutshell, it’s your desire to have a sole custody arrangement with visitation with Emma [Hasenjager]?

{¶ 54} “A. Yeah, it is — I would like to have full custody.”

{¶ 55} It is clear from their court filings and their testimony that both parties sought to be designated the sole residential parent and legal custodian of Demetra while granting the other parent generous visitation rights. While both parents would remain involved in the child’s life in such an arrangement, that is not “shared parenting.” The designation of one parent as the residential parent and legal custodian occurs only in cases where shared parenting is rejected. R.C. 3109.04(A)(1).

{¶ 56} Because both parents requested a termination of shared parenting, the trial court proceeded according to statute. Pursuant to R.C. 3109.04(E)(2)(c), “[t]he court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)® of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children.” (Emphasis added.) Here, *63 the shared-parenting plan between Fisher and Hasenjager was filed jointly by them and approved by the court pursuant to R.C. 3109.04(D)(l)(a)(i). The trial court wrote that it terminated the agreement “at the request” of the parties; such a request is sufficient for termination under R.C. 3109.04(E)(2)(c). The court further found that the shared-parenting plan was not in the best interest of the child.

{¶ 57} When a court terminates a shared-parenting decree under R.C. 3109.04(E)(2)(c), R.C. 3109.04(E)(2)(d) requires the court to “proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of children under the standards applicable under divisions (A), (B) and (C) of this section as if no decree for shared parenting had been granted and as if no request for shared parenting had ever been made.”

{¶ 58} The trial court terminated the shared-parenting decree and moved forward pursuant to R.C. 3109.04(E)(2)(d). The court proceeded as if no shared-parenting request had been made and endeavored to allocate parental responsibilities pursuant to R.C. 3109.04(A)(1). Under R.C. 3109.04(A)(1), “[i]f neither parent files a pleading or motion in accordance with division (G) of this section [i.e., ‘requesting the court to grant both parents shared parental rights and responsibilities for the care of the children’] * * * the court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the children and the right of the parent who is not the residential parent to have continuing contact with the children.” (Emphasis added.)

{¶ 59} The trial court wrote that “in allocating parental rights and responsibilities,” it considered the “best interest of a child” criteria set forth in R.C. 3109.04(F)(1). Applying those factors, it designated Hasenjager as the residential parent and the legal custodian of Demetra. Such a determination is made only in instances where shared parenting is not an option. Pursuant to R.C. 3109.04(A)(1), the court then divided the other rights and responsibilities as to visitation and support, using the earlier shared-parenting plan as a template. But the new decree was not a shared-parenting decree.

{¶ 60} Although the trial court, for the most part, did not cite the statutes it relied upon, it clearly terminated the shared-parenting agreement and proceeded to allocate parental rights and responsibilities as required by R.C. 3109.04. The majority thus answers a question that is not relevant to this case. Accordingly, I *64 dissent and would reverse the court of appeals and reinstate the judgment of the trial court.

Dougherty, Hanneman & Snedaker, L.L.C., and Douglas B. Dougherty, for appellant.

Meikle, Tesno & Luth, and Thomas Luth, for appellee.

Lanzinger, J., concurs in the foregoing opinion.