[Cite as Genhart v. David, 2012-Ohio-433.]
                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


SHANNON GENHART                              )    CASE NO. 10 MA 144
                                             )
        PLAINTIFF-APPELLANT                  )
                                             )
VS.                                          )    OPINION AND
                                             )    JUDGMENT ENTRY
JOHN C. DAVID                                )
                                             )
        DEFENDANT-APPELLEE                   )

CHARACTER OF PROCEEDINGS:                         Appellee’s Application for
                                                  Reconsideration
                                                  Case No. 05 JI 721

JUDGMENT:                                         Denied.

APPEARANCES:

For Plaintiff-Appellant:                          Atty. Charles E. Dunlap
                                                  3855 Starr’s Centre Drive, Suite A
                                                  Canfield, Ohio 44406

For Defendant-Appellee:                           Atty. Susan Gaetano Maruca
                                                  Atty. Christopher A. Maruca
                                                  The Maruca Law Firm, LLC
                                                  201 East Commerce Street
                                                  Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                  Dated: February 1, 2012
[Cite as Genhart v. David, 2012-Ohio-433.]
PER CURIAM.


        {¶1}    The matter before us is Appellee’s timely motion for reconsideration

filed January 3, 2012. Appellant filed her opposition to the motion on January 10,

2012. Appellee disagrees with our determination in Genhart v. David, 7th Dist. No.

10 MA 144, 2011-Ohio-6732 that, absent a custody decree or order altering

Appellant’s statutory custody right as an unmarried mother, Appellant retains her

status as the custodial and residential parent.     Appellee argues that the juvenile

court’s March 20, 2006 journal entry, which adopted the magistrate’s decision

accepting the parties’ parenting agreement but did not specify a custodial or

residential parent, terminated Appellant’s statutory right to sole custody and gave

Appellee equal custody rights. Although Appellee did not raise this specific argument

in his brief, we gave the matter full consideration when determining whether the

record below reflected an error meriting relief under Civ.R. 60(B).        Because our

Opinion on the merits does not contain any obvious error and we fully considered

each of the arguments in Appellee’s brief as well as the issue he now raises, we deny

this application for reconsideration.

        {¶2}    The standard for reviewing an application for reconsideration pursuant

to App.R. 26(A) is whether the application “calls to the attention of the court an

obvious error in its decision, or raises an issue for consideration that was either not

considered at all or was not fully considered by the court when it should have been.”

Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (1987), paragraph one of

the syllabus. Similarly, “[a]n application for reconsideration is not designed for use in

instances where a party simply disagrees with the conclusions reached and the logic
                                                                                       -2-

used by an appellate court. App.R. 26 provides a mechanism by which a party may

prevent miscarriages of justice that could arise when an appellate court makes an

obvious error or renders an unsupportable decision under the law.” State v. Owens,

112 Ohio App.3d 334, 336, 678 N.E.2d 956 (1996).

       {¶3}   In our Opinion, we addressed the trial court’s decision to construe

Appellee’s motion for reconsideration filed to that court as a Civ.R. 60(B) motion for

relief from judgment in light of the court’s perceived “error” in assuming that Appellant

was the residential and custodial parent. We noted that married couples have equal

parenting and custody rights in the children from that marriage by default, even when

they are separated. R.C. 3109.03, Genhart, ¶19. We further noted that unmarried

mothers do not automatically share custody of their children. Instead, by statute,

they maintain sole residential and custodial parenting of their children “until a court of

competent jurisdiction issues an order designating another person as the residential

parent and legal custodian.” R.C. 3109.042, Id. at ¶18. In determining the proper

standard to apply to a motion to modify a shared parenting agreement, we

analogized to Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d

546, which explains that modifications of custody decrees require both a change in

circumstances and that the modification be in the best interests of the child, while

modifications of terms of the parenting agreement require only that the modifications

be in the best interests of the child.

       {¶4}   As explained by the Fisher Court, “[a] plan is not used by a court to

designate the residential parent or legal custodian; that designation is made by the

court in an order or decree. Therefore the designation of residential parent or legal
                                                                                    -3-

custodian cannot be a term of a shared-parenting plan, and thus cannot be modified

pursuant to R.C. 3109.04(E)(2)(b).”    Id. at ¶31.   As discussed in the underlying

Opinion in this matter: where there is a shared parenting decree in a divorce

proceeding the parties continue their separate-but-equal parenting rights according to

the decree and any agreement implementing the decree. However, where, as here,

there is a paternity proceeding between unmarried individuals in which the parties

agree to share parenting time and the court, without issuing an order or decree

identifying a residential or custodial parent, adopts that agreement in a journal entry

that does not identify a residential or custodial parent, the statutory sole custody

rights of the unwed mother remain in effect. Genhart, ¶18–20. Custody cannot be

established by implication or by the title of an agreement between the parties.

Custody rights are determined by statute or by court order or decree.           In this

instance, as we explained in our Opinion, they are established by R.C. 3109.042 in

the absence of a specific order or decree designating any party other than Appellant

the residential or custodial parent.

       {¶5}   For these reasons Appellee’s application for reconsideration is denied.


Waite, P.J., concurs.

Donofrio, J., concurs.

DeGenaro, J., concurs.
