[Cite as In re E. A., 2014-Ohio-280.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



IN RE: E.A.                              :             APPEAL NO. C-130041
                                                       TRIAL NO. F12-538(X)
                                         :

                                         :                  O P I N I O N.




Civil Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 29, 2014



Morence & Buchenau, LLC, and Nancy R. Lorence, for Appellant,

Donnellon, Donnellon & Miller, and Robert T. Butler, for Appellee.




Please note: this case has been removed from the accelerated calendar.
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D INKELACKER , Judge.

          {¶1}   In three assignments of error, appellant mother claims that the trial

court erred when it granted custody of her daughter, E.A., to the child’s father. We

affirm.

          {¶2}   E.A. was born in 2006. She has lived with her mother for her whole

life. For the first three years, father was actively involved. In 2009, father’s wife

moved to the United States from Africa, and insisted that father have no further

contact with E.A. or mother. After that, father’s contact with the child was limited to

a few instances. Mother subsequently moved to Pennsylvania and took E.A. with

her.

          {¶3}   Father petitioned the trial court for custody of E.A. The case was first

set for a pretrial conference on February 22, 2012. Mother called and requested a

continuance, presumably seeking time to obtain counsel. Both parties attended the

subsequent pretrial conference on June 14. At that time, the parties were informed

that the matter would proceed to a hearing on the merits on September 4.             On

August 31, mother sent an email to the court indicating that she could not attend the

hearing and asking that she be allowed to participate via video conference or,

alternatively, that the case be moved to Pennsylvania. Mother did not attend the

hearing. The magistrate treated the email as a motion for a continuance, which he

denied. The magistrate conducted the merits hearing and, after hearing testimony

from father, granted him custody of E.A.          The trial court overruled mother’s

objections to the magistrate’s decision.




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                     Conducting the Merit Hearing without Mother
                          was not an Abuse of Discretion

         {¶4}    In her first assignment of error, mother claims that the trial court

abused its discretion when it denied her motion for a continuance. This court will

not easily find that a trial court abused its discretion.     An abuse of discretion

“connotes more than an error of law or of judgment; it implies an unreasonable,

arbitrary or unconscionable attitude on the part of the court.” Pembaur v. Leis, 1

Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982). As the Tenth Appellate District recently

noted:

         It is to be expected that most instances of abuse of discretion will

         result in decisions that are simply unreasonable, rather than decisions

         that are unconscionable or arbitrary. AAAA Ents., Inc. v. River Place

         Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

         N.E.2d 597 (1990). A decision is unreasonable if there is no sound

         reasoning process that would support that decision. Id. It is not

         enough that the reviewing court, were it deciding the issue de novo,

         would not have found that reasoning process to be persuasive, perhaps

         in view of countervailing reasoning processes that would support a

         contrary result. Id. An abuse of discretion implies that a decision is

         both without a reasonable basis and is clearly wrong. Hartzog v. Ohio

         State Univ., 27 Ohio App.3d 214, 27 Ohio B. 254, 500 N.E.2d 362

         (10th Dist.1985), citing Angelkovski v. Buckeye Potato Chips Co., Inc.,

         11 Ohio App.3d 159, 11 Ohio B. 242, 463 N.E.2d 1280 (10th Dist.1983).

Aetna Better Health, Inc. v. Colbert, 10th Dist. Franklin No. 12AP-720, 2012-Ohio-

6206, ¶ 21.




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       {¶5}    In evaluating a motion for a continuance, a court should consider the

length of the delay requested, whether other continuances have been requested and

received, the inconvenience to litigants, witnesses, opposing counsel and the court,

the reason for the delay, whether the party contributed to the circumstances which

give rise to the request for a continuance, and any other relevant factors depending

on the circumstances of each case. State v. Unger, 67 Ohio St.2d 65, 67-68, 423

N.E.2d 1078 (1981). When considering the propriety of denying a motion for a

continuance, “we consider the reasons presented * * * at the time the request [for

continuance] is denied.” In re Am. Transmission Sys., 125 Ohio St.3d 333, 2010-

Ohio-1841, 928 N.E.2d 427, ¶ 32, quoting State v. Beuke, 38 Ohio St.3d 29, 36, 526

N.E.2d 274 (1988).

       {¶6}    In this case, mother informed the court she could not attend the

hearing because it was too great a burden to travel from Pennsylvania. But, due to

the nature of her request, there was no way of telling from the email when—or even

if—mother would be able to return to Hamilton County. Even during the hearing on

the objections to the magistrate’s decision—a time when mother was represented by

counsel—there was no indication of when or if mother would be able to come to

Hamilton County.       Additionally, the magistrate had made arrangements for an

interpreter to be present to assist mother at the hearing. Since the magistrate,

mother’s court-appointed interpreter, father, and his counsel were all present and

prepared to go forward, and since mother’s ability to participate at some indefinite

point in the future was unknown, it was not an abuse of discretion to proceed with

the merits hearing.

       {¶7}    While the decision of which parent has custody is a serious one,

every litigant’s case is important. The courts in this district make decisions where


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individual liberty is in the balance, where millions of dollars are at stake, that protect

the sanctity of the home, or are literally life-and-death. In this regard, the analysis

for whether a continuance is proper in a murder case is no different than the analysis

set forth here. See, e.g., State v. Unger, supra.

       {¶8}     In order for the courts to do this work with efficiency and diligence,

they rely on this court to give them the latitude to do what needs to be done. When a

party is unavailable, that work stops. Parties' lives are placed on hold and, as in this

case, there is no end in sight. A litigant does not have the right to unreasonably delay

a trial. Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617 (1993). This court has

noted that:

       [t]o constitute a sufficient ground for a continuance because of the

       absence of a party it must appear that the absence is unavoidable, and

       not voluntary; that [the party's] presence at the trial is necessary; that

       the application is made in good faith; and that [the party] probably

       will be able to attend court at some reasonable future time.

(Emphasis added.) Moore v. Turney, 1st Dist. Hamilton No. C-120735, 2013-Ohio-

4564, ¶ 5, quoting State ex rel. Buck v. McCabe, 140 Ohio St. 535, 537, 45 N.E.2d 763

(1942), paragraph two of the syllabus. The crucial missing factor is that mother has

not indicated when, or if, she will be able to attend a future hearing. See State v.

Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 48 (militating against

the request for a continuance was the fact that no time period was specified as to the

proposed length of the continuance). Trial courts will simply no longer function if

parties can seek open-ended continuances without being required to give some

assurance that they will be able to participate at a future, certain date.




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       {¶9}      We also reject mother’s argument that the trial court should have,

sua sponte, postponed the hearing to determine if father should be required to pay

for her expenses to travel to Hamilton County pursuant to R.C. 3127.24(D). Mother

did not seek such relief in her email message to the court. In light of the broad

discretion afforded trial courts in such situations, see Minton v. McManus, 9 Ohio

App.3d 165, 168, 458 N.E.2d 1292 (9th Dist.1983), we cannot find that the trial court

erred when it failed to sua sponte raise this issue. Mother’s first assignment of error

is overruled.

                Custody Determination was not an Abuse of Discretion

       {¶10}     In her second assignment of error, mother argues that the trial court

improperly determined that granting custody of the child to father was in E.A.’s best

interest. See R.C. 3109.04(B)(1). The trial court’s decision was not an abuse of

discretion. See Davis v. Flickenger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

       {¶11}     R.C. 3109.04(F) lists a number of factors for the trial court to

consider when determining the child’s best interest for purposes of a custody

determination. In this context, it is important to note that this was an initial custody

determination. Thus, unlike a modification of a prior custody determination, the

court operated under no initial presumption that one parent was in a better position

to maintain custody. Cwik v. Cwik, 1st Dist. Hamilton No. C-090843, 2011-Ohio-

463, ¶ 38.

       {¶12}     Father presented testimony that he could provide a stable home, that

E.A. would have other siblings with whom to play and bond, and that she would be

well cared for. This contrasted to mother, who had a history of moving, and who had

moved to Pennsylvania without having a job waiting for her there. While it is true

that the ability to provide these benefits to the child is dependent upon the means to


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do so, that is not the same as saying that the decision was based upon a comparison

of the financial position of the parties.

       {¶13}     It is true that the record in this case is thin. Nonetheless, it is thin

because mother failed to attend the hearing on the matter. On this record, we cannot

say that the trial court abused its discretion. Mother’s second assignment of error is

overruled.

           The Record Does not Show the Trial Court Failed to Review the
                  Complete Record Before Ruling on Objections

       {¶14}     In her third assignment of error, mother claims that the trial court

erred when it overruled her objections to the magistrate’s decision without

considering the affidavit she had submitted in support of them. But there is nothing

in the record to indicate that the trial court had not done so. In fact, a review of the

transcript of the hearing on the objections indicates that the trial court had read the

affidavit and had asked questions based on information contained therein. Further,

the decision of the trial court states that it had conducted “an independent review of

the objected matters, the evidence presented and the oral arguments submitted to

the court.” The fact that the trial court overruled her objections is not evidence that

they were not properly considered. Mother’s third assignment of error is overruled.

                                       Conclusion

       {¶15}     As the dissent notes, this is certainly a troubling case. But it was

made so when mother failed to appear for a hearing at which the custody of her child

was to be determined. In order to function, trial courts must be given a wide berth to

regulate their dockets. Father did not win custody because mother failed to appear.

The hearing was conducted. A determination was made, objected to, considered, and

adopted.


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       {¶16}     Having considered and rejected mother’s three assignment of error,

we affirm the decision of the trial court.

                                                                  Judgment affirmed.


FISCHER, J., concurs.
DEWINE, J., dissents.
DEWINE, J., dissenting.

       {¶17}     This is a troubling case. The majority today upholds a trial court’s

decision removing a seven-year-old girl from her mother with whom she has lived

her whole life. The holding affirms the decision below that this abrupt change is in

the child’s best interest, but it does so based upon an ex parte trial where no real

evidence about the child’s best interest was produced.

       {¶18}     I believe a continuance should have been granted to allow mother to

participate. I also believe that the record as it stands does not support the trial

court’s determination that granting custody to father was in the child’s best interest.

So, I dissent.

                 An Ex Parte Trial to Determine a Child’s Best Interest

       {¶19}     In addition the facts set forth by the majority, a few additional ones

are helpful to get a full flavor of the proceeding below.

       {¶20}     Father filed his petition for custody on February 22, 2012. According

to the petition, mother and E.A. lived in Wilkes-Barre, Pennsylvania at that time, and

had resided there since December 2011.

       {¶21}     The trial date was selected at a pretrial hearing held on June 14.

Mother appeared pro se. During the hearing, it was evident that mother did not

speak English well and was confused by the process. The court took note and stated

that it would provide a French translator for future proceedings. The court selected a


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trial date after receiving input from father’s counsel but with no apparent input from

mother.   In fact, a review of the transcript indicates little participation in or

understanding of the proceedings on the part of mother. At the end of the hearing,

mother expressed surprise at the course of proceedings: “So we’re not going to do

anything today?” The court explained that the matter would be set for trial the next

time, and mother was handed a paper to sign acknowledging the trial date.

       {¶22}      Mother apparently called the court two weeks prior to the scheduled

trial date and asked for a postponement because she could not make it to Cincinnati

on the scheduled date. Her attempt to reschedule was unsuccessful, and a few days

before the scheduled trial date, mother followed with this email:

       I would like to let you know that I will not be able to attend on the 4th

       September 2012. I have tried to postpone it but have been told by the

       clerk that the other party refused.

       I spent $800 for travel and accommodation when I attended last June

       I have not pay it back yet.

       I am not in a position to afford the travel and the accommodation cost

       and also last time when we attended my daughter was so exhausted

       because we traveled back the same date.

       I want to ask if that will be possible to do video or call link with the

       Court or if we can transfer the case to my city.

       Once again sorry for any inconvenient this may cause and hoping we

       will find a solution that helps us resolve this issue.

       Regards,

       [A.A.]




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       {¶23}    After the magistrate refused to continue the case, the matter

proceeded to trial. Father presented his version of events. Because there was no

opposing counsel, there was no cross-examination. Father was allowed not only to

present his version of events without contradiction but also to testify to various

hearsay matters regarding mother in complete disregard of the rules of evidence.

       {¶24}     Despite the ex parte nature of the proceeding, the magistrate had

remarkably few questions for father. He asked only if father had had any criminal

charges, and if father had had any big fights with mother. When father replied in the

negative to both lines of inquiry, the magistrate said, “All right. Based on the

testimony today I’ll grant custody to [father].”

       {¶25}    A written decision from the magistrate followed. The magistrate

credited father’s testimony, including father’s hearsay statements about mother. He

noted that father had a steady job, owned his home and could take care of E.A.

without daycare. Father, the magistrate found, has a “stable life,” while mother

“moves often” and went to Pennyslvania “when she had no job.”          Based upon the

assumption that father’s greater resources allowed for greater stability, the

magistrate concluded that it was in the “best interests” of E.A. to be in the custody of

her father.

       {¶26}    After the magistrate’s decision was issued, mother apparently

realized the gravity of the situation and contacted an attorney who filed objections to

the magistrate’s decision. A hearing was held on the objections. Prior to the hearing,

mother tried to submit evidence by affidavit that contradicted much of father’s trial

testimony. The affidavit explained that in 2006, when mother became pregnant with

father’s child, father expressed dismay and urged her to have an abortion. From

E.A.’s birth until present, E.A. lived exclusively with mother, and mother cared for


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E.A. on a daily basis. Father did provide some assistance in caring for E.A. during

the first three years of her life. But in 2009, father informed mother that his wife

was coming from Africa, that he did not want his wife to know about E.A., and that

he could no longer assist in caring for E.A. At some point after his wife arrived,

father changed his position and demanded that E.A. live with him and his wife.

Mother refused, but was willing to let father continue to see E.A. As far as mother

knows, however, since 2009, father has had only four visits with E.A., which took

place at her daycare. Further, father provided only limited and sporadic financial

support to E.A., and none since the move to Pennsylvania. Mother had steady

employment in Cincinnati from 2006 until she was laid off in late 2011. As a result,

she moved to Wilkes-Barre to seek employment. Mother further opined in her

affidavit that E.A. is a well-adjusted first-grader, who enjoys school and who has

many friends in Wilkes-Barre. Mother also averred that she did not understand that

father might be awarded custody following the September hearing.

       {¶27}    Opposing counsel objected to the consideration of the affidavit.

Under Civ.R. 59(D), the court had the discretion whether or not to consider

additional evidence.   Here, there is no indication that the trial court chose to

consider the affidavit. Rather, the trial court simply issued a seven-sentence opinion

summarily affirming the decision of the magistrate, concluding that the “[m]agistrate

properly determined the factual issues and appropriately applied the law.”

                  An Abuse of Discretion to Deny a Continuance

       {¶28}    A trial court needs to be able to manage its docket. For this reason, it

is understood that the decision to grant or deny a continuance rests within the sound

discretion of the trial court. State ex rel. Buck v. McCabe, 140 Ohio St. 535, 537, 45

N.E.2d 763 (1942). This discretion, though, is not unbridled. We balance the need


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for effective docket management against a desire to allow litigants their day in court

when at all possible and to have cases decided on their merits. Thus, we have said

that “a party has a right ‘to a reasonable opportunity to be present at trial and a right

to a continuance for that purpose.’ ’’ Moore v. Turney, 1st Dist. Hamilton No. C-

120735, 2013-Ohio-4564, ¶ 4, quoting Brown v. Bowers, 1st Dist. Hamilton No. C-

070797, 2008-Ohio-4114, ¶ 15. But we have also qualified that “a party does not have

a right to unreasonably delay a trial.” Id.

       {¶29}      There is “no mechanical test[]” for whether the denial of a

continuance constitutes an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 67,

423 N.E.2d 1078 (1981), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11

L.Ed.2d 921 (1964). Among the factors to be considered are

       the length of the delay requested; whether other continuances have

       been requested and received; the inconvenience to litigants, witnesses,

       opposing counsel and the court; whether the requested delay is for

       legitimate reasons or whether it is dilatory, purposeful, or contrived;

       whether the defendant contributed to the circumstance which gives

       rise to the request for a continuance; and other relevant factors,

       depending on the unique facts of each case.

Unger at 67-68.

       {¶30}      The Ohio Supreme Court has said to constitute sufficient grounds

for a continuance due to the absence of party “it must appear that the absence is

unavoidable and not voluntary; that the [party’s] presence at trial is necessary; that

the application is made in good faith; and that [the party] probably will be able to

attend court at some reasonable future time.” McCabe, at paragraph two of the

syllabus.


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       {¶31}    Ultimately, in deciding whether it was an abuse of discretion to

refuse a continuance, we employ “a balancing test which takes cognizance of all the

competing considerations.” Unger at 67. The “competing considerations” in this

case weigh heavily in favoring of allowing mother a continuance.

       {¶32}    The most important consideration here—one that is completely

overlooked by both the majority and the court below—is that this is a case where the

duty of the court system is to determine the best interest of the child. No doubt both

parents will be affected by the decision in this case. But the person who will feel the

most profound impact is the seven-year-old child. With such high stakes, we should

be particularly hesitant to allow an ex parte trial to occur without the participation of

mother and without any input as to E.A.’s best interest. At oral argument in front of

this court, counsel for father was asked what the child wanted. He replied, honestly,

that he didn’t know. Neither do we. And neither did the court below. The need for a

full adversarial process when the stakes are so high strongly weighs in favor of giving

mother another chance to attend the hearing.

       {¶33}    The majority’s decision today will impact not only E.A.’s future but

also the fundamental rights of her mother. See Troxel v. Granville, 530 U.S. 57, 120

S.Ct. 2054, 147 L.Ed.2d 49 (2000). In such circumstances, we have been cautioned

that although “[t]he establishment of prompt efficacious procedures to achieve

legitimate state ends is a proper state interest worthy of cognizance[,] * * * the

Constitution recognizes higher values than speed and efficiency.” Stanley v. Illinois,

405 U.S. 645, 656, 92 S.Ct. 1208, 31 L.E.2d 551 (1972). The due-process protections

of our Constitution, we are told, “were designed to protect the fragile values of a

vulnerable citizenry from [an] overbearing concern for efficiency and efficacy[.]” Id.




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       {¶34}    Indeed even in cases without such severe consequences and without

constitutionally protected rights at stake, this court has not hesitated to find an

abuse of discretion in denying a continuance in appropriate circumstances. See, e.g.,

Moore v. Turney, 1st Dist. Hamilton No. C-120735, 2013-Ohio-4564 (reversing the

denial of a continuance and remanding for trial in small claims court).

       {¶35}    Leaving aside the high stakes here, consideration of the prejudice to

the respective parties also weighs in favor of a continuance. Father lives in Hamilton

County, and presumably could have attended another date with little difficulty. A

continuance would have caused some delay, which father didn’t want. But in this

case, father had had only intermittent contact with E.A. for over two years before he

decided to seek custody. Certainly, the prejudice to father that would have been

caused by a reasonable continuance was far outweighed by the prejudice to mother

and E.A. as a result of the ex parte trial.     See Swanson v. Swanson, 8th Dist.

Cuyahoga No. 90472, 2008-Ohio-4865.

       {¶36}    The “good faith” factor cited in McCabe also weighs in favor of a

continuance. See McCabe, 140 Ohio St. at 538, 45 N.E.2d 763. One only need read

mother’s email to understand that she wasn’t trying to unnecessarily delay or duck

the proceedings. In fact, she volunteered several options—transfer, video or call

link—that she believed would have allowed the case to proceed without delay. While

she may have been naïve in her assumption that the court could accommodate her

suggestions, her request was certainly in good faith.

       {¶37}    It is also significant that this was mother’s first request for a

continuance of the trial date. This is not a case where one party has unreasonably

delayed trial through multiple requests for a continuance. See, e.g., Rielinger v.

Rielinger, 8th Dist. Cuyahoga No. 90614, 2009-Ohio-1236.


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       {¶38}       Further, this is not a situation where the request for a continuance

was made on the morning or eve of trial. See, e.g., Wise v. Brenneman, 3rd Dist.

Allen No. 1-98-22, 1998 Ohio App. LEXIS 4289 (Sept. 10, 1998). The majority cites

to the fact that the court had made arrangements for an interpreter, and that the

interpreter as well as father and his counsel were present and ready to proceed with

trial. But mother’s request for a continuance was made some two weeks before the

trial date. There was plenty of time to reschedule the hearing and the attendance of

the interpreter.

       {¶39}       The majority hinges its decision on a conclusion “that there was no

way of telling from the mother’s email when—or even if—the mother would be able to

return to Hamilton County.”        But there was a simple enough solution to that

problem, one that is employed in trial courts everyday: someone could have asked

her. Someone could have inquired during her initial phone call to the court. A court

employee could have responded to her email and asked if she could be available for

another date. Better yet, a phone conference could have been set up by the court

with all parties to consider the request. But there is no indication that any of these

things were done. It was just assumed that since she couldn’t make the scheduled

date, she couldn’t make any other.

       {¶40}       Moreover, mother’s email itself seems to contradict the majority’s

conclusion that she would not be available for another date. She states that “she had

tried to postpone” the hearing. Postpone means to put off until another date in the

future. Implicit in mother’s request for “postponement” is her acknowledgment that

there will be a trial. So without more, it seems a leap for the magistrate to have

concluded—and the majority to now conclude—that she could not have been

available in the future.


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       {¶41}     I don’t mean to suggest that mother is blameless here. She probably

could have done more. One can guess that if she knew then what she knows now, she

would have found a way to make it to the hearing. And if this were a complaint about

money, or some other dispute where she was the only one impacted, it might make

sense to deny the continuance. But here, there was a lot more at stake, most notably

the interest of E.A. Considering all the circumstances, I believe the trial court abused

its discretion in denying the continuance.

       {¶42}     That I find an abuse of discretion here is not to suggest that

continuances should be lightly granted.             In the interests of prudent docket

management, trial courts ordinarily do well to hold a party’s feet to the fire when it

comes to maintaining trial dates. In my view, it should be a rare case where we find

that a trial court has abused its discretion in denying a continuance. But this is one

of them.

        A Lack of Evidence that the Custody Award Is in E.A.’s Best Interest

       {¶43}     I also believe the trial court abused its discretion in awarding legal

custody to father because, even with an ex parte trial, father did not meet his burden

to demonstrate that the award of legal custody was in the best interest of E.A.

       {¶44}     As the party moving for legal custody, father had the burden to

demonstrate that such a disposition was in the “best interests” of E.A. See In re

M.P., 9th Dist. Summit No. 25222, 2010-Ohio-3701, ¶ 6. The need for father to meet

this burden was not obviated by the decision of the magistrate to conduct an ex parte

trial. See Carter v. Meyer, 8th Dist. Cuyahoga No. 93457, 2010-Ohio-1868, ¶ 9.

Rather, father was still required to set forth evidence demonstrating that the award

of full custody was in E.A.’s best interest.




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       {¶45}    R.C. 3109.04(F)(1) sets forth appropriate factors that a court shall

consider in determining a child’s best interest:

       (a) The wishes of the child’s parents regarding the child’s care;

       (b) If the court has interviewed the child in chambers pursuant to

       division (B) of this section regarding the child’s wishes and concerns as

       to the allocation of parental rights and responsibilities concerning the

       child, the wishes and concerns of the child, as expressed to the court;

       (c) 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;

       (d) The child’s adjustment to the child's home, school, and

       community;

       (e) The mental and physical health of all persons involved in the

       situation;

       (f) The parent more likely to honor and facilitate court-approved

       parenting time rights or visitation and companionship rights;

       (g) Whether either parent has failed to make all child support

       payments * * *;

       (h) Whether either parent or any member of the household of either

       parent previously has been convicted of or pleaded guilty to any

       criminal offense * * *;

       (i) 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;


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       (j) Whether either parent has established a residence, or is planning to

       establish a residence, outside this state.

       {¶46}     A review of these factors demonstrates an almost complete lack of

evidence at trial that the custody award to father was in E.A’s best interest. There

was no evidence at all introduced as to subparts (b), (c), (d), (e), (f), (g) and (i).

There was evidence under subpart (a) concerning father’s wish to have custody of

E.A., but we can assume that mother had a similar desire. There was also evidence

under (h) that father told the court that he did not have a criminal record, but there

was no indication mother had a criminal record either. Finally, there was evidence

that mother had moved out of state, but nothing in the record to suggest whether

such a move was in the best interest of E.A.

       {¶47}     To the extent the magistrate gave a justification for his decision, it

was that father’s financial capabilities allowed him to provide a more stable

environment for E.A.      But R.C. 3109.04(F)(3) specifically provides that “when

allocating parental rights and responsibilities for the care of children, the court shall

not give preference to a parent because of that parent's financial status or condition.”

       {¶48}     What was missing from the “trial” in this matter was any evidence

about E.A.     There was no evidence about her needs and desires in regards to

parenting, her attachments to her mother or father, her education, her psychological

and emotional well-being or anything else that would seem pertinent to a seven-year-

old’s best interest. All one can really take from a review of the trial transcript is that

father desires to raise E.A., and that he says that he has stable and adequate finances.

       {¶49}     Based upon this record, I cannot find that father has met his burden

to show that it is in the best interest of E.A. to be yanked away from her mother with

whom she has lived her entire life. My colleagues see it differently, so I dissent.


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                    O HIO F IRST D ISTRICT C OURT OF A PPEALS



Please note:
The court has recorded its own entry on the date of the release of this opinion.




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