Fisher v. Hasenjager

In Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007 Ohio 5589, 876 N.E.2d 546, a decision briefly referred to in the dissenting opinion, the Ohio Supreme Court held that "only R.C. 3109.04(E)(1)(a) expressly authorizes a court to modify a prior decree allocating parental rights and responsibilities." Id. at P21. "Modification of a prior decree, pursuant to R.C. 3109.04(E)(1)(a), may only be made 'based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, or the child's residential parent, and that the modification is necessary to serve the best interest of the child.' This is a high standard, as a 'change' must have occurred in the life of the child or the parent before the court will consider whether the current designation of residential parent and legal custodian should be altered." Id. at P33. The Court addressed a conflict between the Third Appellate District and this court. Id. at P1. In affirming this court's judgment, the court held that "R.C. 3109.04(E)(1)(a) controls when a court modifies an order designating the residential parent and legal custodian." Id. at P26. Concluding, the court stated, "we hold that a modification of the designation of residential parent and legal custodian of a child requires a determination that a 'change in circumstances' has occurred, as well as a finding that the modification is in the best interest of the child, pursuant to R.C. 3109.04(E)(1)(a)." Id. at P37. In Fisher, the Supreme Court sought to distinguish parenting modifications under R.C. 3109.04(E)(1)(a) and R.C. 3109.04(E)(2)(b). Id. at P1. In Fisher, the court held that R.C. 3109.04(E)(1)(a) controlled during modifications of prior decrees or orders allocating parental rights, while R.C. 3109(E)(2)(b) controlled during modifications of a shared parenting plans. Id. at P29. The court distinguished between a "plan" and an "order," finding that the "plan" only includes provisions "relevant to the care of the child, such as the child's living arrangements, medical care, and school placement." Id. at P30. In contrast, a parenting "order" or "decree" adopted by the court designates the residential parent or legal custodian. Id. at P31. Modifications to the residential parent or legal custodian designation cannot be made pursuant to R.C. 3109.04(E)(2)(b) because those designations are not a "term" of a shared parenting plan. Id. at P27 and P31. Due to the significance of the custody determination, a higher threshold is required for modification. Id. at P34.