[Cite as In re C.K.W., 2015-Ohio-3288.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          WARREN COUNTY




IN THE MATTER OF:                               :

                C.K.W.                          :      CASE NO. CA2015-01-011

                                                :             OPINION
                                                               8/17/2015
                                                :

                                                :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             JUVENILE DIVISION
                             Case No. 10-C01157



John Kaspar, 130 East Mulberry Street, Lebanon, Ohio 45036, for petitioner-appellant

S.D., 3655 Sarah Street, Franklin, Ohio 45005, respondent-appellee, pro se



        PIPER, P.J.

        {¶ 1} Petitioner-appellant, A.W. (Father) appeals a decision of the Warren County

Court of Common Pleas, Juvenile Division, granting custody of his child to respondent-

appellee, S.D. (Mother).

        {¶ 2} Father and Mother were never married, but had a child together, C.K.W.

Mother and Father had shared parenting of the child, with the child essentially spending one

week with Father and then one week with Mother. Recently, Father married a woman who is

enlisted in the Air Force. Father's new wife was re-stationed in Colorado and Father asked
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Mother if he could take the child with him and his wife to Colorado, where they had bought a

house and resided in an area with good schools. Mother agreed, believing the move to be in

the "best interest" of the child. However, Mother later called Father and told him that she had

changed her mind, and that she would not allow Father to take the child with him to Colorado.

        {¶ 3} Father and Mother filed alternative motions seeking to terminate shared

parenting and each moving for custody of the child, who was five years old at the time of the

motions. At a hearing on the matter, the magistrate heard testimony from Father, Mother, the

child's preschool teacher, as well as maternal grandmother. The child was not interviewed.

The magistrate terminated the shared parenting agreement and awarded custody of the child

to Mother. Father filed objections to the magistrate's decision, which were overruled by the

juvenile court. Father now appeals the juvenile court's decision, raising the following

assignments of error. Because the assignments are interrelated, we will address them
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together.

        {¶ 4} Assignment of Error No. 1:

        {¶ 5} THE TRIAL COURT'S AWARD OF CUSTODY OF THE MINOR CHILD OF

THE PARTIES CONSTITUTED AN ABUSE OF DISCRETION.

        {¶ 6} Assignment of Error No. 2:

        {¶ 7} THE TRIAL COURT'S FINDING THAT AWARDING CUSTODY OF THE

MINOR CHILD OF THE PARTIES TO MOTHER WAS IN THE BEST INTEREST OF THE

MINOR CHILD WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE

PRESENTED.

        {¶ 8} Father argues in his two assignments of error that the juvenile court erred in



1. Mother has not filed an appellee's brief. As such, and according to App.R. 18(C), we "may accept the
appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably
appears to sustain such action."


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awarding custody of the child to Mother.

        {¶ 9} A juvenile court has discretion in custody matters, and its decision in such

matters will not be reversed absent an abuse of that discretion. In re A.D., 12th Dist. Fayette

No. CA2012-07-023, 2013-Ohio-1308, ¶ 15. An abuse of discretion is more than an error of

law or judgment; it implies that the trial court acted unreasonably, arbitrarily, or

unconscionably. Id. While the trial court has considerable discretion in fashioning a custody

award, its discretion is not absolute and is subject to reversal upon a showing of abuse.

Miller v. Miller, 37 Ohio St.3d 71 (1988).

        {¶ 10} According to R.C. 3109.04(E)(2)(c), a court may terminate a shared parenting

decree upon request of one or both of the parents, or if the shared parenting plan is not in

the best interest of the child. The decision to terminate a shared parenting plan and to then

award custody of the child to one parent over the other is determined by a consideration and
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balancing of the factors set forth in R.C. 3109.04(F)(1) and (F)(2).

        {¶ 11} The factors within R.C. 3109.04(F)(1) that are relevant to the case sub judice

include: the wishes of the child's parents regarding the child's care, the child's interaction and

interrelationship with the child's parents, siblings, and any other person who may significantly

affect the child's best interest, the child's adjustment to the child's home, school, and

community, the parent more likely to honor and facilitate court-approved parenting time rights

or visitation and companionship rights, whether the residential parent or one of the parents

subject to a shared parenting decree has continuously and willfully denied the other parent's

right to parenting time in accordance with an order of the court, and whether either parent

has established a residence, or is planning to establish a residence, outside this state.



2. Father does not argue that the termination of the shared parenting agreement was an abuse of discretion.
Instead, Father argues that the juvenile court's decision to award custody to Mother was an abuse of discretion.
As such, we will focus our analysis on the factors as set forth in R.C. 3109.04(F)(1).


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       {¶ 12} A review of the record indicates that the juvenile court abused its discretion in

awarding custody of the child to Mother, as the juvenile court's findings were sometimes

unsupported by the record and did not properly balance statutory factors. The record

indicates that the reason for the custody request was predicated upon Father's move to

Colorado. This will undoubtedly disrupt the child's life in that he will be moved from Ohio and

leave behind family members on both Mother's and Father's sides of the family. The juvenile

court was correct to place ample weight on that evidence. However, the child's move from

Ohio to Colorado is but one factor for consideration, and was not properly balanced against

equally significant factors.

       {¶ 13} Regarding the wishes of the child's parents as to the child's care, the record

indicates that both Father and Mother desire to raise the child, and both moved for custody.

Although Mother initially agreed that the move to Colorado was in the child's "best interest,"

she later changed her mind. When asked why she changed her mind, Mother relied solely

on the fact that the child would miss his Ohio family. Otherwise, Mother did not express any

concerns regarding Father's ability to raise or care for the child.

       {¶ 14} Specific to the child's interaction and interrelationship with his parents, siblings,

and any other person who may significantly affect his best interest, as well as the child's

adjustment to his home, school, and community, the juvenile court gave great weight to the

fact that all of the child's family resides in Ohio. Stated once more, the court was correct to

assign ample weight to the fact that the child's family lives in Ohio and that he has spent his

entire life in the same community. However, the record overwhelmingly demonstrates that

the child's interaction and interrelationship with Mother and her Ohio family is not always

beneficial to the child, and that placement with Mother is not in the child's best interest.

       {¶ 15} Regarding the child's interaction and relationship with Mother and Father

specifically, the record clearly indicates that Father has made the child a priority and has
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provided consistency and structure in the child's life with an emphasis on education, while

Mother has not. Similarly, the record demonstrates that the child's adjustment to his

community and school is markedly different depending on who is in charge of the child's care

for that particular week.

        {¶ 16} The child's preschool teacher testified that Father has consistently transported

the child to school, while Mother did not, and that Father came to both parent-teacher

conferences, while Mother did not. The teacher also testified that when the child is with

Father, the child's attendance is consistent, but when with Mother, the child's attendance was

"very spotty." Moreover, when the child was with Mother, the child came to school "very

tired" and would not focus during class. The child's behavior at school was negative during

the time that Mother had custody, while the child's behavior was better when Father was the

custodial parent. The teacher also testified that the child completed assigned homework

when with Father, but not with Mother.

        {¶ 17} Similarly, Father testified that he would receive calls from the child's school and

teachers asking why the child was not in school on days that the child was with Mother.

Father testified to his belief that the child would have a more consistent life with him, as

Father helps the child focus on school and homework, while Mother does not. For example,

Mother once told Father that school is not important for the child, and Mother later admitted
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during her cross-examination that education is not a priority in her family. Mother did not

have the child attend a school-camp to help the child transition from pre-school to

kindergarten, and when asked why, she stated that the child slept too late and that he went

fishing with his grandfather instead of going to school.



3. The juvenile court heard testimony that the only family member in Mother's family who has a high school
diploma/GED is Mother's father, that Mother does not make the child's attendance in school and school-related
activities a priority, and that Mother's school-age brother with whom she lives has truancy issues.


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       {¶ 18} Father also testified to the conditions in which Mother was raising the child,

including that Mother had approximately ten addresses and different living arrangements in

the past two years, and that sometimes when he would pick up the child for visitation, Mother

and her other children, including C.K.W., were located at a different address than where

Father had dropped off the child for visitation the week before. The various residences

where Mother and her children would stay belonged to family members, friends, or boyfriends

of Mother, but Mother did not maintain any consistent housing on her own. Mother also had

no less than six different phone numbers in the two years preceding the hearing.

       {¶ 19} During his testimony, Father described the residence where Mother was

currently living with her extended family and her children, including, C.K.W. The house had

no back door, uninstalled insulation, exposed wiring, missing door knobs on the doors, and

exposed plywood that was rotten. Also, the only room in the house that had drywall was the

bathroom, and there was no furnace in the home. Maternal grandmother testified that there

were holes in the flooring, but that the children who lived there, including C.K.W., knew to be

careful around the holes, and that some windows in the home were broken. The record

indicates, and both Mother and her mother confirmed during their testimony, that children

services had investigated the condition of the home on multiple occasions and was engaged

with the family to make the home more livable for the children.

       {¶ 20} Father also testified that while he takes the child to all of the child's medical

appointments, Mother only attends some and also failed to fill the child's prescription for an

inhaler that is required on a daily basis. Father also testified that the child is always tired

upon the child's return from visits with Mother, but that when the child is with him, the child

has a regulated napping schedule and consistent bed time. Father testified that the child is

well-behaved when with him, while Mother testified the child does not behave with her. The

child's behavioral issues when with Mother include screaming, calling her names, and
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throwing temper tantrums.

        {¶ 21} Mother also admitted that she has not had consistent employment in her past,

and is on food stamps. She has been in two car accidents, one of which was her fault and

occurred when she was driving on a suspended driver's license. Mother had previously lost

her license as a result of a DUI offense, and had not yet regained a valid driver's license.

Mother testified that she has a pending judgment as result of the car accident against her for

$32,000 and that she cannot get her license back until she claims bankruptcy and discharges

the judgment. Mother had no viable transportation option, as her mother did not drive, and

her father is a long-haul truck driver who can be gone for weeks at a time.

        {¶ 22} The fact that Mother does not have a valid driver's license or consistent

transportation has affected the way in which she visited with the child, or did not visit with the

child, as the case may be. Father, Mother, and Maternal grandmother all testified that

Mother had missed visitation with the child because she lacks transportation, or that she

would be late picking the child up because she was trying to arrange last-minute

transportation. The record demonstrates that either Mother would be late, sometimes by

hours, or not pick the child up at all on countless occasions.4 For this reason, and after

months of Mother failing to abide by the designated pickup time, Father began to deny

Mother visitation when she was late in getting the child.

        {¶ 23} The juvenile court placed significant weight on the fact that Father had denied

Mother some visitation, and expressed concerns that Father would deny Mother visitation in

the future when analyzing the factors of which parent would more likely honor and facilitate

court-approved parenting time and whether either parent continuously and willfully denied the

other parent's right to parenting. While the juvenile court rightly indicated that Father denied


4. Mother also freely admitted that she missed other periods of vitiation because she was intoxicated and could
not pick up the child.

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Mother's visitation when Mother was late in getting the child, the juvenile court's concern that

Father would deny future visitation is not supported by the record.

       {¶ 24} First, the juvenile court's findings do not recognize the fact that in denying

Mother visitation, Father was in compliance with the shared parenting plan previously

adopted by the court. According to the shared parenting plan in place,

                the transporting parent for parenting time shall have a grace
                period of fifteen minutes for pick up and delivery if both parties
                live within thirty miles of each other. * * * In the event the non-
                residential parent exceeds the grace period, that period of
                parenting time is forfeited unless prior notification and
                arrangements have been made * * *. Repeated violations by
                either parent shall be cause for granting a modification of the
                parenting order.

(Emphasis added.) The record demonstrates that on numerous occasions, Mother was more

than 15 minutes late when picking up the child, without first making prior arrangements to

pick up the child at a different time. Thus Father had a legitimate justification for denying

Mother visitation on numerous occasions.

       {¶ 25} Despite the juvenile court's indication that it "finds it difficult to believe the

Father is likely to facilitate visitation, encourage the sharing of love, affection, and contact

between the child and the other parent," the record simply does not support a finding that

Father wrongly denied visitation to Mother or that Father would not facilitate visitation in the

future. Instead, Mother admitted during her testimony that Father never denied her visitation

unless she was late, and Father testified that he would pay for the child to fly back to Ohio to

visit with Mother. Father also testified that he would encourage the child to communicate

with Mother by telephone and visual media, such as FaceTime. No evidence was presented

that Father directly or indirectly obstructed, interfered with, or diminished the mother-child

relationship.

       {¶ 26} The juvenile court's decision also relied upon there being no evidence in regard


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to the child's relationship with Father's wife. For this reason, the juvenile court concluded that

"a move to Colorado still presents many unknowns," and "there was no other evidence

presented, aside from Father's mere conjectures, to substantiate that life for [the child] will be

better in Colorado." However, this finding is not supported by the record. There is no

indication in the record, whatsoever, that the child did not have a beneficial relationship with

Father's new wife, and Mother never once indicated that Father's wife was a problem or that

having the wife in the child's life was detrimental to him. Moreover, the record is replete with

reasons why Father has provided a more stable life for the child and why his having custody

is in the child's best interest. While the juvenile court considered the evidence as being

"Father's mere conjectures," the evidence was deduced from uncontroverted testimony,

including the child's teacher, Mother's own testimony, as well as the testimony from maternal

grandmother.

       {¶ 27} We do not enter this decision lightly. We are completely aware of the broad

discretion given to trial courts when making custody determinations. However, the two

factors heavily relied upon by the juvenile court regarding the child missing his Ohio family

and Father denying Mother visitation were not properly weighed against all of the other

factors that weigh heavily in favor of Father having custody. The record does not support the

juvenile court attributing to Father an intention to deny Mother a relationship with her son.

And, without doubt, the child will miss family members just as he would miss the extensive,

positive influence Father has had in the child's life thus far. Yet, when giving weight to the

factors involved, the child's best interest is paramount. The juvenile court's decision is

reversed as we find that pursuant to R.C. 3109.04 and App.R. 12(B), substantial justice has

not been done the party complaining and Father is entitled to custody as a matter of law.

See Mary B v. Zollie M., 6th Dist. Lucas No. L-96-120, 1997 WL 90612 (Feb.28, 1997)

(granting custody of a child to its mother despite the trial court granting custody of the child to

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its grandparents). Furthermore, given the record in this case, in conjunction with Mother's

failure to file a brief, it is readily apparent that Father is entitled to custody. In re M.B., 9th

Dist. Summit No. 26004, 2012-Ohio-687. We also remand the case so that the juvenile court

can establish proper child support in light of the change of custody.

       {¶ 28} Judgment reversed and custody of the child is awarded to Father. The matter

is remanded for further proceedings consistent with this opinion.


       S. POWELL and HENDRICKSON, JJ., concur.




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