Bragg v. Hatfield

In Bragg v. Hatfield, 152 Ohio App.3d 174, 2003 Ohio 1441, 787 N.E.2d 44, P21, the Court noted that once custody has been awarded to a nonparent, the court will not apply the Perales unfitness standard to a later request for custody modification. Instead, custody modification in that situation is determined under the R.C. 3109.04 change of circumstances/best interest standard. Id.; see, also, In re Hockstock, 98 Ohio St.3d 238, 2002 Ohio 7289, at P21, 781 N.E.2d 971, citing Masitto at 65. In other words, if a parent has custody of her minor child, a custody dispute with a nonparent is determined under the Perales standard; but, if a custody award has previously been made to a nonparent, the party seeking to modify that award must show a change in circumstances/best interest even if the noncustodial party is a parent and the custodial party is a nonparent. Bragg at P21. Thus, once a nonparent has acquired custody, the court need not apply the Perales unfitness standard to a later request for custody modification. In re Kovaleski, Washington App. No. 05CA12, 2006 Ohio 317, P21, citing Bragg, supra. Instead, custody modification in that situation is determined under R.C. 3109.04. Id.