[Cite as In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208.]




IN RE HOCKSTOK; HOCKSTOK, N.K.A. GORSLENE, APPELLEE, V. HOCKSTOK ET
                                   AL., APPELLANTS.

          [Cite as In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208.]
Domestic relations — Children — Custody — In a child custody case arising out
        of a parentage action between a natural parent of the child and a
        nonparent, a trial court must make a parental unsuitability
        determination on the record before awarding legal custody of the child
        to the nonparent.
(No. 2001-2134 — Submitted October 16, 2002 at the Licking County Session —
                             Decided December 27, 2002.)
APPEAL from the Court of Appeals for Licking County, No. 01CA40, 2001-Ohio-
                                               1680.
                                      __________________
                               SYLLABUS OF THE COURT
In a child custody case arising out of a parentage action between a natural parent
        of the child and a nonparent, a trial court must make a parental
        unsuitability determination on the record before awarding legal custody of
        the child to the nonparent.
                                      __________________
        MOYER, C.J.
        {¶1}    Third-party defendants-appellants, Robert and Jeri Hockstok,
appeal from the judgment of the Licking County Court of Appeals reversing the
trial court’s denial of the motion of plaintiff-appellee, Jennifer Gorslene, f.k.a.
Hockstok, for an order reallocating parental rights.
                                         I. Facts
                            SUPREME COURT OF OHIO




       {¶2}    This case originates from a complaint filed on July 15, 1994, by
Jennifer Gorslene to establish the paternity of her child, Christopher Michael
Hockstok, born on May 28, 1993. The magistrate found Shane R. Huck to be the
biological father of Gorslene’s child and designated Gorslene to be the child’s
residential parent.
       {¶3}    Soon thereafter the child’s maternal grandparents, Robert
Hockstok (Gorslene’s father) and Jeri Hockstok (Gorslene’s stepmother), filed a
motion to be made parties in the instant action in order to assert their custodial
rights regarding the child. The Hockstoks’ motion was granted, and the Domestic
Relations Division of the Licking County Common Pleas Court found sufficient
cause to believe that the child may be endangered and that it would be in the best
interest of the child to grant temporary custody to the Hockstoks.
       {¶4}    Gorslene and the Hockstoks later entered into an agreement, which
was reduced to a judgment entry on April 9, 1996. The parties agreed that the
Hockstoks would assume temporary legal custody of the child for a period of six
months in order to give Gorslene an opportunity to create a more stable living
environment for the child before regaining custody. The judgment entry specified
that “the temporary legal care and custody of the minor child, Christopher M.
Hockstok, shall be granted to Defendants Robert and Jeri Hockstok for a period of
six (6) months from the file-stamped date of this Entry. Upon the expiration of
said six (6) months, Christopher M. Hockstok shall be returned to the legal
custody of his mother, Plaintiff Jennifer L. Hockstok [now Gorslene]. At that
time, the provisions contained in this Entry will also terminate without further
action by this Court. If any party believes that the plaintiff’s resumption of the
minor child’s legal care and custody would not be in his best interest, they may
petition the court to show cause why the return should not be effectuated.”
       {¶5}    The entry listed certain obligations for Gorslene, such as
encouraging her then-fiance, Michael Jonas, to attend parenting classes, to seek




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counseling as a couple, to remedy their financial problems, including the payment
of all outstanding bad checks, to maintain health insurance on the child at all
times, to obtain and maintain automobile insurance, and to pay child support.
         {¶6}     When the mandated six-month temporary period expired, the
parties agreed that Gorslene was still not in a suitable position to resume custody
of her son. Thereafter, the parties entered into another agreement, which was
again reduced to a judgment entry, continuing the same terms and conditions of
the original. However, the entry did acknowledge that Gorslene had terminated
her relationship with Michael Jonas, and ordered that all references to Jonas be
deleted.
         {¶7}     In January 1997, Gorslene filed a motion for contempt claiming
that the Hockstoks had failed to abide by the visitation schedule. In addition,
Gorslene claimed to have fulfilled the conditions of the previous agreed entries
and therefore moved to terminate the temporary custody granted to the Hockstoks.
Gorslene’s motion to regain custody was denied and the Hockstoks retained
temporary custody.
         {¶8}     The Hockstoks then filed a motion for the court to hold Gorslene in
contempt for violation of the previous order to pay child support and a cross-
motion requesting legal custody of the child. The matter proceeded to hearing on
Gorslene’s motion for custody and the Hockstoks’ cross-motion for legal custody.
The magistrate noted that the court had jurisdiction pursuant to R.C. 2301.03(S)
and proceeded to apply the “best interests of the child” test required by R.C.
3109.04(D)(2) in designating the Hockstoks as the legal custodians of the child.1


1. For purposes of this opinion it is important to differentiate between the statutory definitions of
“legal custody” and “permanent custody.” “Legal custody” is defined by R.C. 2151.011(B)(19) as
“a legal status that vests in the custodian the right to have physical care and control of the child
and to determine where and with whom the child shall live, and the right and duty to protect, train,
and discipline the child and to provide the child with food, shelter, education, and medical care, all
subject to any residual parental rights, privileges, and responsibilities.” (Emphasis added.)
“Permanent custody” is defined in R.C. 2151.011(B)(30) as “a legal status that vests in a public




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The trial court adopted the magistrate’s decision by judgment entry, which was
not appealed by Gorslene.
         {¶9}     Approximately ten months later, Gorslene filed a motion for the
reallocation of parental rights. Hearings on Gorslene’s motion were held and on
February 8, 2000, the magistrate filed a decision recommending that Gorslene’s
motion be denied. The magistrate found that since the Hockstoks had already
been granted legal custody as a result of the February 1998 judgment entry, the
correct standard to apply in this instance was the best interest of the child as set
out in R.C. 3109.04(E)(1)(a).
         {¶10} Gorslene objected to the magistrate’s findings and conclusion and
argued that the magistrate had erred by deciding the motion strictly upon the “best
interest of the child” standard rather than first ruling on whether Gorslene, as the
child’s natural parent, was suitable or unsuitable. Over Gorslene’s objections, the
trial court adopted the best interest of the child as the correct standard.
         {¶11} Gorslene appealed. The court of appeals reversed and remanded,
holding that the trial court erred when it failed to make a parental unsuitability
determination. The cause is now before this court upon the allowance of a
discretionary appeal.
                               II. Summary of Relevant Law
         {¶12} The issue presented for review is whether, in a child custody case
arising out of a parentage action between a natural parent and a nonparent, a trial
court must make a parental unsuitability determination on the record before
awarding legal custody of the child to a nonparent.
         {¶13} We agree with the Licking County Court of Appeals that “[c]hild
custody disputes under Ohio law fall within the coverage of one of two statutes,

children services agency or a private child placing agency, all parental rights, duties, and
obligations, including the right to consent to adoption, and divests the natural parents or adoptive
parents of all parental rights, privileges, and obligations, including all residual rights and
obligations.” (Emphasis added.)




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                                   January Term, 2002




depending upon the circumstances.” The two statutes are R.C. 3109.04 and
2151.23.
        {¶14} R.C. 3105.011 gives Ohio common pleas domestic relations courts
jurisdiction “appropriate to the determination of all domestic relations matters,”
and R.C. 3109.04 dictates the rules and procedures for domestic relations courts
to follow in child custody cases. Specific to the issue before us, R.C. 3109.04(A)
applies to “any proceeding pertaining to the allocation of parental rights and
responsibilities for the care of a child.” (Emphasis added.) R.C. 3109.04(D)(2)
provides that if a court finds that “it is in the best interest of the child for neither
parent to be designated the residential parent and legal custodian of the child, it
may commit the child to a relative of the child * * *.”2
        {¶15} R.C. 2151.23(A)(2) grants the juvenile courts exclusive original
jurisdiction “to determine the custody of any child not a ward of another court of
this state.” The statute, unlike R.C. 3109.04, does not state a test or standard to be
used by the juvenile courts in determining child custody cases.
        {¶16} Within the framework of the statutes, the overriding principle in
custody cases between a parent and nonparent is that natural parents have a
fundamental liberty interest in the care, custody, and management of their
children. Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71
L.Ed.2d 599; In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169.
This interest is protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and by Section 16, Article I of the
Ohio Constitution; Santosky, supra; In re Shaeffer Children (1993), 85 Ohio
App.3d 683, 689-690, 621 N.E.2d 426.                Since parents have constitutional
custodial rights, any action by the state that affects this parental right, such as
granting custody of a child to a nonparent, must be conducted pursuant to

2 Reporter's Note: Footnote 2 has been withdrawn. See 98 Ohio St.3d 1476, 2003-Ohio-980, 784
N.E.2d 709.




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procedures that are fundamentally fair. Santosky v. Kramer, 455 U.S. at 754, 102
S.Ct. 1388, 71 L.Ed.2d 599; In re Adoption of Mays (1986), 30 Ohio App.3d 195,
198, 30 OBR 338, 507 N.E.2d 453.
       {¶17} Ohio courts have sought to effectuate the fundamental rights of
parents by severely limiting the circumstances under which the state may deny
parents the custody of their children. In re Perales (1977), 52 Ohio St.2d 89, 6
O.O.3d 293, 369 N.E.2d 1047, syllabus. Accordingly, we have held that in a
child custody proceeding between a parent and nonparent, a court may not award
custody to the nonparent “without first determining that a preponderance of the
evidence shows that the parent abandoned the child; contractually relinquished
custody of the child; that the parent has become totally incapable of supporting or
caring for the child; or that an award of custody to the parent would be
detrimental to the child.”    Id.   If a court concludes that any one of these
circumstances describes the conduct of a parent, the parent may be adjudged
unsuitable, and the state may infringe upon the fundamental parental liberty
interest of child custody.
       {¶18} Thus, a finding of parental unsuitability has been recognized by
this court as a necessary first step in child custody proceedings between a natural
parent and nonparent.
       {¶19} In In re Perales, we held that since the issue of custody in that case
did not arise from a divorce proceeding but rather from a dispute between a parent
and a nonparent, the juvenile court erred in applying the best interest standard of
R.C. 3109.04. Id., 52 Ohio St.2d at 96, 6 O.O.3d 293, 369 N.E.2d 1047. The
court noted that R.C. 3109.04 controls custody disputes arising from divorce
actions where the dispute is between the child’s parents, and where “[b]oth of the
parents may be eminently qualified to raise the child” and, therefore, “a finding of
unsuitability would not be appropriate and the welfare of the child would be the
only consideration before the court.” Id. We held that the juvenile court should




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have proceeded under R.C. 2151.23(A)(2), and that a juvenile court’s “scope of
inquiry must, of necessity, be broader in R.C. 2151.23(A) custody proceedings
between a parent and a nonparent, which bring into play the right of the parent to
rear his own child.” Id. As R.C. 2151.23(A)(2) grants juvenile courts jurisdiction
to determine child custody cases if a child is not a ward of another court of the
state and contains no “best interest of the child” standard, we held that a juvenile
court must make a determination of parental unsuitability before awarding child
custody to a nonparent in a legal custody proceeding. Id. at syllabus.
       {¶20} The court revisited the issue of child custody disputes between a
natural parent and a nonparent in Masitto v. Masitto (1986), 22 Ohio St.3d 63, 22
OBR 81, 488 N.E.2d 857. In Masitto, a natural father agreed to the appointment,
by the probate court, of the child’s maternal grandparents as guardians for his
minor child. The father later agreed to a decree of divorce from the child’s
mother that made no explicit award of custody but rather incorporated the probate
court’s guardianship order. When the father later moved for a change of custody,
the trial court ruled that, based upon the “best interest of the child” standard of
R.C. 3109.04(B), the grandparents should retain custody of the child. The court
made no finding with respect to the unsuitability of the father, and in fact,
specifically found that he was “a fit person to have custody.” Id. at 64, 22 OBR
81, 488 N.E.2d 857.
       {¶21} The issue before the Masitto court was whether the trial court
should have made a parental unsuitability determination before deciding the case
based upon the best interest of the child. We cited Perales, holding that “[t]he
general rule in Ohio regarding original custody awards in disputes between a
parent and a non-parent is that ‘parents who are “suitable” persons have a
“paramount” right to the custody of their minor children unless they forfeit that
right by contract, abandonment, or by becoming totally unable to care for and
support those children.’ ” Id. at 65, 22 OBR 81, 488 N.E.2d 857, quoting In re




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Perales, 52 Ohio St.2d at 97, 6 O.O.3d 293, 369 N.E.2d 1047. The Masitto court
indicated that another general rule in Ohio, which has been codified in R.C.
3109.04(B)(1) and (E)(1)(a), is that once an original custody award has been
made, that award will not be modified unless necessary to serve the best interest
of the child. Id.
       {¶22} We upheld the trial court’s finding that an unsuitability
determination had been made when the father had agreed to the probate court’s
guardianship order, i.e., he relinquished his right to custody by contractually
agreeing to the appointment of the child’s grandparents as legal guardians, and
later reaffirmed this relinquishment through the divorce decree. Id. at 66, 22 OBR
81, 488 N.E.2d 857. It is also important to note another rationale for our Masitto
holding: “An additional factor to consider here is that the guardianship status of
the minor child could not have existed unless the probate court found that the
‘parents are unsuitable persons to have the custody and tuition of such minor, or
whose interests, in the opinion of the court, will be promoted thereby.’ ” Id.,
quoting R.C. 2111.06.
       {¶23} Thus, since an unsuitability determination had been made in the
probate court supported by evidence in the record that the father had contracted
away the custody rights of his child, according to Perales, such a forfeiture of his
right to custody made him unsuitable.
       {¶24} The important principle that harmonizes Perales and Masitto is
that regardless of which court had jurisdiction, the juvenile or the domestic
relations division of the court of common pleas, this court recognized the
overriding importance of a trial court’s making a parental unsuitability
determination on the record before awarding custody away from a natural parent
to a nonparent. These two cases demonstrate the significance of the fundamental
rights of natural parents in child custody cases between parents and nonparents.




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                                 January Term, 2002




        {¶25} For these reasons the position of this court in this area of child
custody law ought to be clear. However, some confusion has been created by this
court’s opinion in Boyer v. Boyer (1976), 46 Ohio St.2d 83, 75 O.O.2d 156, 346
N.E.2d 286, which predates Perales and Masitto. Boyer is a child custody dispute
between parents and nonparents, but it originated from a divorce proceeding and,
therefore, this court applied R.C. 3109.04(D)(2), which allows a court to grant
custody of a child to a nonparent relative if the court finds that it is not in the best
interest of the child for either parent to retain custody.
        {¶26} Since Perales and Masitto did not originate from divorce
proceedings and were custody cases involving a parent versus a nonparent, R.C.
3109.04(D)(2) did not apply. It is the circumstances of divorce in Boyer that
distinguish it from the holdings of Perales and Masitto. Boyer is not controlling
here.
                             III. Application of the Law
        {¶27} It is undisputed in the record that the domestic relations court
never made a finding that Gorslene was a suitable or unsuitable parent. No such
finding was even arguably required when the trial court entered the consent order
granting temporary custody to the Hockstoks. The subsequent legal custody
award to the Hockstoks was based upon the “best interest of the child” standard
required by R.C. 3109.04(D)(2).
        {¶28} The custody dispute between Gorslene and the Hockstoks
originated from a parentage action and it has been established that Gorslene and
the child’s father were never married. This case shares many facts with Perales;
however, the case at bar originated under the jurisdiction of the domestic relations
court under R.C. 3109.04, while Perales originated in the juvenile court under
R.C. 2151.23.
        {¶29} Just as in Masitto, the trial court here awarded original custody to
the nonparents. However in Masitto we observed that the probate court had




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necessarily found the parent to be unsuitable pursuant to R.C. 2111.06 as a
prerequisite to granting the application for custody to nonparents.      Gorslene
received no such determination before losing legal custody of her child.
Therefore, the trial court erred by not giving Gorslene a parental unsuitability
determination before awarding custody to the Hockstoks in the legal custody
hearing.
       {¶30} The Hockstoks acknowledge that the domestic relations court did
not make a parental unsuitability determination prior to awarding legal custody to
them in the February 4, 1998 order, but argue that this oversight is not
determinative.   The Hockstoks claim that an unsuitability determination was
constructively made when Gorslene failed to appeal the award of legal custody to
the Hockstoks. They claim that Gorslene thereby abandoned or contractually
relinquished her custodial rights by forfeiting her right to appeal the adverse
ruling. We indicated in Perales that abandonment and contractual relinquishment
are two of the few actions that can justify a determination of parental
unsuitability. Id., 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047, syllabus.
       {¶31} The Hockstoks claim that because there was a constructive
unsuitability determination due to Gorslene’s failure to appeal the February 4,
1998 entry, the trial court did not err when it applied the “best interest of the
child” standard to Gorslene’s motion to modify the legal custody order. The
Hockstoks rely on R.C. 3109.04(B)(1), which states, “When making the
allocation of the parental rights and responsibilities for the care of the children
under this section * * * in any proceeding for modification of a prior order of the
court making the allocation, the court shall take into account that which would be
in the best interest of the children.” The Hockstoks urge us to accept their
argument that by not appealing the original custody ruling, Gorslene
constructively forfeited her right to custody, and, therefore, we should affirm the




                                        10
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common pleas domestic relations court’s denial of Gorslene’s subsequent motion
to modify custody under the best-interest-of-the-child standard.
       {¶32} We do not accept this argument. In Perales, there was evidence
that the natural parent had signed an agreement purporting to give custody of her
child to a nonparent. Perales, 52 Ohio St.2d at 90, 6 O.O.3d 293, 369 N.E.2d
1047. However, this court found that the domestic relations court had not made
an unsuitability determination and that the evidence of forfeiture in the record was
not strong enough to warrant substituting its judgment for that of the trial court.
Id. at 99, 6 O.O.3d 293, 369 N.E.2d 1047. In Masitto, this court concluded that
the record did support the finding that the parent had relinquished his right to
custody and had been found unsuitable by the trial court. Id., 22 Ohio St.3d at 67,
22 OBR 81, 488 N.E.2d 857.
       {¶33} Thus, in both Perales and Masitto, the unsuitability determination
that is required before custody may be awarded to a nonparent over a parent’s
objections is determined by whether the record supported a finding that the
natural parent had relinquished his or her custodial rights. However, in the case at
bar, there is no evidence that Gorslene ever agreed to give the Hockstoks legal
custody of her child. Gorslene merely entered into an agreement whereby the
Hockstoks were given temporary custody of the child, and it is undisputed in the
record that this temporary custody was not a grant of legal custody. The record is
also undisputed that Gorslene resisted all efforts by the Hockstoks to gain legal
custody of the child and had, in an effort to regain custody, actually made
progress toward complying with the requirements of the April 9, 1996 agreed
judgment entry. The trial court stated that Gorslene had “made great strides since
these proceedings were initiated approximately four and a half years earlier” and
that “[i]t would further appear from this hearing that [she] basically had complied
with the requirements in the agree[d] entries as previously put forth.”




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       {¶34} Therefore,      the   only        possible   evidence   of   contractual
relinquishment the Hockstoks can argue is constructive forfeiture through
Gorslene’s lack of appeal regarding the original custody award. We decline to
approve the Hockstoks’ constructive forfeiture theory.
       {¶35} The only remaining question to be settled, therefore, is how can a
party who did not appeal a final order subsequently petition the court for a
modification, when the modification motion raises essentially the same issues that
would have been raised during the waived appeal? Unlike most areas of the law
where permanency of final orders is a paramount principle, in child custody law,
flexibility is often an overriding concern. Such flexibility is codified in R.C.
2151.011(B)(19), which defines the term “legal custody” as “a legal status that
vests in the custodian the right to have physical care and control of the child * * *
subject to any residual parental rights, privileges, and responsibilities.”
(Emphasis added.) This definition of legal custody is statutory codification of the
principle that in child custody, permanency of final orders is not always of the
highest priority.
       {¶36} In this case, it is undisputed that the Hockstoks were awarded legal
custody of the child in the February 4, 1998 legal custody entry. This grant of
mere legal custody means that Gorslene was never divested of her fundamental
parental rights, and she can therefore petition the courts for a custody
modification at any time. The fact that Gorslene retains residual parental rights
provided by statute, coupled with the fact that she was originally denied a proper
parental unsuitability determination, causes us to agree with the judgment of the
court of appeals remanding the matter to the trial court to make an unsuitability
determination. Such an outcome is consistent with the jurisprudence of this court
that in custody cases between a natural parent and nonparent, a parental
unsuitability determination must be made and appear in the record before custody




                                          12
                                January Term, 2002




can be awarded to a nonparent. This result preserves the fundamental parental
rights that Gorslene never forfeited.
       {¶37} During the oral argument in this case, counsel for the Hockstoks
argued that a decision requiring the trial court to make a suitability determination
now would bring chaos on the child custody system. Counsel raised the specter
of an endless line of parents, all having lost custody to a nonparent via a legal
custody hearing, petitioning the courts for new suitability determinations.
Counsel argued that in the end this situation would merely be detrimental to the
child. We agree.
       {¶38} Therefore our holding in this case does not change the well-
established rule, codified in R.C. 3109.04(B)(1), that after the legal custody
determination is made, the best-interest-of-the-child standard should be used for
any custody modification petitions filed by a natural parent. A parent should be
given only one unsuitability determination, which should come at the time of the
legal custody hearing. After such a determination has established, or taken away,
a parent’s fundamental custodial rights, the focus must shift from the rights of the
parents to the rights of the child. A child’s rights are effectuated through the use
of the best-interest-of-the-child standard for subsequent custodial modification
requests.
       {¶39} In this way the rights of parents and children are balanced in child
custody disputes. In the case at bar, the system was out of balance because
Gorslene was never afforded her one unsuitability determination.
       {¶40} For the foregoing reasons, the judgment of the court of appeals is
affirmed, and the cause is remanded to the domestic relations court for a parental
unsuitability determination.
                                                            Judgment accordingly.
       DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
       PFEIFER, J., dissents.




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       COOK, J., dissents.
                               __________________
       PFEIFER, J., dissenting.
       {¶41} The majority’s analysis of legal custody cases between a parent
and nonparent is correct. A court should determine the unsuitability of a natural
parent before awarding legal custody to a nonparent. In this case, the domestic
relations court should have made an unsuitability determination before awarding
legal custody to the Hockstoks in its February 4, 1998 order. Gorslene would
have the power of the majority’s analysis behind her if only she were appealing
that order. But she is not. The domestic relations court awarded legal custody to
the Hockstoks on February 4, 1998, and Gorslene never appealed. That sets her
apart from the parent in In re Perales (1977), 52 Ohio St.2d 89, 90, 6 O.O.3d 293,
369 N.E.2d 1047, who was appealing directly from the juvenile court’s award of
custody to a nonparent based upon “the best interest” of the child. Perales
remains good law, but it is wholly inapplicable to this case. Since this case
concerns Gorslene’s attempt to change, not appeal, “a prior order of the court
making the allocation,” R.C. 3109.04 controls. See R.C. 3109.04(B)(1).
       {¶42} R.C. 3109.04 is not draconian—it does not foreclose Gorslene
from ever having custody of her child again. But it does premise her potential
custody on the best interest of the child. R.C. 3109.04(E)(1)(a) states that the
court “shall not modify” a prior custody decree unless it finds that “a change has
occurred in the circumstances of the child [or his] residential parent, * * * and that
the modification is necessary to serve the best interest of the child.”
       {¶43} Certainly, as part of that “best interest” determination the court
should take into account the elemental nature of the parent-child relationship.
The majority points out the constitutionally protected fundamental liberty interest
parents have in the care of their children. That interest cannot exist without a
similar value being accorded to the child’s interest in residing with his or her




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natural parents. Courts should accord that due weight in making determination of
a child’s best interest.
         {¶44} For the above reasons, I would reinstate the judgment of the trial
court.
                                 __________________
         COOK, J., dissenting.
         {¶45} I respectfully dissent in accordance with the first two paragraphs of
Justice Pfeifer’s dissent.
                                 __________________
         Arnold & Christiansen Co., L.P.A., and Vicky M. Christiansen, for
appellants.
         James C. Thompson, for appellee.
                                 __________________




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