[Cite as A.L. v. K.T., 2016-Ohio-2865.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      FULTON COUNTY


A.L.                                                Court of Appeals Nos. F-15-002
                                                                          F-15-003
        Appellee
                                                    Trial Court No. 09DV000151
v.

K.T.                                                DECISION AND JUDGMENT

        Appellant                                   Decided: May 6, 2016

                                             *****

        Jeffrey L. Robinson, for appellee.

        Thomas P. Kurt, for appellant.

                                             *****

        JENSEN, P.J.

                                          I. Introduction

        {¶ 1} Appellant-mother, K.T., appeals a decision by the Fulton County Court of

Common Pleas to designate appellee-father, A.L., as the primary residential parent and

legal custodian of the parties’ three youngest children. Because we find that the trial

court did not abuse its discretion, we affirm.
                    II. Statement of Facts and Procedural History

       {¶ 2} The parties were married in 2001. At the time, mother had two children

from a previous relationship, and father adopted them. Those children are currently aged

18 and 16. The parties also have three biological children together, and their current ages

are 14, 11, and 10. It is these younger children who are at the center of this appeal.

       {¶ 3} Father filed a complaint for divorce in 2009. While the case was pending,

the trial court ordered a psychologist to examine the parties and the children. The court

also appointed the children a guardian ad litem (“GAL”).

       {¶ 4} In 2011, the parties entered into an agreement to terminate their marriage,

including a shared parenting plan. Until recently, the parties continued to share custody

under a “temporary order for a shared parenting plan.”

       {¶ 5} At issue here is father’s “motion for reallocation of parental rights and

responsibilities,” filed in October of 2012. Father requested that he be named the

residential parent and legal custodian of “the minor children,” based on mother’s alleged

pattern of conduct “designed to alienate the children from their father.”

       {¶ 6} Over the course of the next two and one-half years, there were four hearings

during which the court heard testimony and observed the parties. The final hearing took

place on March 12, 2015. Both father and mother testified that shared parenting was not

in the best interests of the children. Mother testified that the younger children had a hard

time acclimating between the parties’ two homes. Father testified, “I would recommend




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Judge that you make a decision one way or the other. Whether it be with her or whether

it be with me, I think these kids just need to have one home that they can call a home.”

       {¶ 7} The GAL, who began his relationship with the children in 2012, visited with

them twice in 2015 and prepared an updated report. In it, he was deeply critical of both

parents but ultimately recommended that shared parenting continue.

                 III. The Trial Court’s Decision and Judgment Entry

       {¶ 8} In reaching its decision, the trial court characterized the parties’ relationship

as toxic. It was particularly critical of mother and the two older children, whom the court

faulted for “actively * * * undermining * * * Father’s relationship with his three younger

children.” The court concluded that continuing the shared parenting plan was not in the

best interest of the children. Instead, it designated mother as the primary residential

parent and legal custodian of the two older children, with father the right to exercise

reasonable visitation. It designated father as the primary residential parent and legal

custodian with regard to the three younger children, with mother to have the right to

exercise reasonable visitation and companionship with them. It ordered child support to

be calculated based upon the standard work-sheet schedule.

       {¶ 9} The mother appealed.

                     IV. Appellant-Mother’s Assignments of Error

              I. The trial court abused its discretion in ordering “split custody” of

       the parties’ minor children without making findings required by Ohio

       Revised Code § 3109.04(F)(2).




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              II. The trial court abused its discretion in removing the residential

       custody of three of appellant’s five minor children from appellant on the

       basis of a psychological report which in fact recommended that the all five

       of appellant’s five minor children remain with together [sic] and in the

       residential custody of appellant.

              III. The trial court abused its discretion in removing the residential

       custody of three of appellant’s five minor children from appellant despite

       the guardian ad litem’s two reports which recommend that all five children

       remain in the custody of appellant.

                               V. Law and Analysis

       {¶ 10} An appellate court reviews a trial court’s decision regarding a child custody

determination under an abuse of discretion standard. In re Brown, 142 Ohio App.3d 193,

198, 755 N.E.2d 365 (12th Dist.2001). An appellate court must give such discretion to

the trial court in these cases because of the nature and significance of the proceeding, and

because the trial court is in a unique position to weigh the credibility of witnesses and

evidence. Miller v. Miller, 37 Ohio St.3d 71, 73-74, 523 N.E.2d 846 (1988). To find an

abuse of discretion, an appellate court must conclude that the lower court’s attitude was

unreasonable, arbitrary, or unconscionable. Id. at 74.

       {¶ 11} In her first assignment of error, mother alleges that the trial court abused its

discretion by failing to make “findings required by R.C. 3109.04(F)(2).” Although




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mother makes reference to section (F)(2) of R.C. 3109.04, the argument portion of her

brief references only section (F)(1) of the statute.

       {¶ 12} By way of clarification, R.C. 3109.04(F)(1) provides criteria to a court

when it is assessing the best interests of the child for purposes of allocating parental

rights and responsibilities, whether in an original decree or modification thereof. By

contrast, section (F)(2) applies when a court is deliberating over “whether shared

parenting is in the best interests of the child.” Both sections require a court to consider

“all relevant factors,” and both include their own list of specific factors that the court

“shall” also consider, including the recommendation of a guardian ad litem. R.C.

3109.04(F)(2)(e).

       {¶ 13} Irrespective of which section mother intended to cite, the essence of her

argument is that the trial court failed to articulate its findings or provide details when it

allocated parental rights and responsibilities.

       {¶ 14} The residential parent and legal custodian is the person with the primary

allocation of parental rights and responsibilities. R.C. 3109.04(A)(1); Fisher v.

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 23.

       {¶ 15} We disagree with mother that the trial court failed to articulate its rationale

when designating father as the residential parent and legal custodian of the three youngest

children. Clearly, the court was troubled by the presence of “parental alienation.” The

court found that the two older children were “actively involved in undermining” their




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younger siblings’ relationship with their dad. The court opined that the situation “cannot

be countenanced, nor will it be allowed to continue.”

       {¶ 16} The court also observed that the three youngest children were “in the

middle of a very stressful situation” which it likened to walking a “very tight ‘high wire’”

with little by way of a safety net.

       {¶ 17} Finally, the trial court lamented that the concerns expressed by the

psychologist back in 2010 had not only worsened but had proven to be prophetic in that

the mother vilifies the father, overstates problems, and implies that father poses a threat

to them.

       {¶ 18} The court also cited with approval the observations made by the

psychologist that “[father] has a genuine interest in and concern about the children * * *

He does and would take a more traditional, structured, and limit setting relationship and

role with the children.” Based on all these findings, the court concluded that shared

parenting “has not worked” and that the children should be separated.

       {¶ 19} A review of the record indicates that the lower court engaged in a thorough

evaluation of the relevant factors, before designating father as the primary residential

parent and legal custodian of the three younger children. We see no evidence that the

trial court acted arbitrarily, unreasonably or unconscionably. Therefore, we find that

mother’s first assignment of error is not well-taken.




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       {¶ 20} We consider mother’s second and third assignments of error together. In

them, mother alleges that the trial court abused its discretion in failing to follow the

opinion of the psychologist and guardian ad litem, respectively.

       {¶ 21} The psychologist prepared a 52-page report on October 1, 2010. At that

time, mother, father, and all five children were evaluated and observed. The psychologist

recommended that the children remain together and that mother have the primary

parenting responsibility with father having liberal visitation. The psychologist made the

recommendation “with some tentativeness because I am not convinced that mother, who

has been acting in a fashion that is somewhat alienating in order to assure her relationship

with her children * * * will be able to contain her style of denigration of him to them.”

       {¶ 22} More recently, the GAL recommended that the “present parenting time

schedule” continue. Nonetheless, the GAL also observed the older children’s display of

animosity toward their father was causing anxiety for the three younger children.

       {¶ 23} “A trial court is not bound to follow a guardian ad litem’s recommendation.”

(Citation omitted.) Lumley v. Lumley, 10th Dist. Franklin No. 09AP-556, 2009-Ohio-6992,

¶ 46. “As the fact finder, the trial court determines the guardian ad litem’s credibility and

the weight to be given to the guardian ad litem’s recommendation. Because assessment of

the credibility and weight of the evidence is reserved for the trial court, we will not second

guess the court’s decision to disregard the guardian ad litem’s recommendation.” (Citation

omitted.) Id., citing Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

See also Bomberger-Cronin v. Cronin, 2d Dist. Greene No. 2014-CA-4, 2014-Ohio-2302,




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¶ 27, and MacDonald v. MacDonald, 8th Dist. Cuyahoga No. 96099, 2011-Ohio-5389,

¶ 16-17.

       {¶ 24} The opinions of the psychologist and guardian ad litem were just two of the

many factors the court considered when allocating parental rights. Further, the trial court

concurred in large part with their observations, even if it ultimately disagreed with their

recommendation. We find that the trial court sufficiently articulated its decision to

deviate from that recommendation, and we will not second guess the court’s judgment,

absent evidence that the court abused its discretion. Appellant’s second and third

assignments of error are not well-taken.

       {¶ 25} We have reviewed the entire record in the matter. We find no abuse of

discretion in the trial court’s decision (1) to designate appellant-mother as the primary

residential parent and legal custodian of the two older children or (2) to designate

appellee-father as the primary residential parent and legal custodian as to the three

younger children. Appellant’s three assignments of error are not well-taken.

       {¶ 26} The judgment of the Fulton County Court of Common Pleas is hereby

affirmed. Costs are assessed to appellant in accordance with App.R. 24.


                                                                         Judgment affirmed.




8.
                                                                      A.L. v. K.T.
                                                                      C.A. Nos. F-15-002
                                                                                F-15-003




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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