R.C 3109.04(E) Interpretation
The Ohio Supreme Court addressed the standard a court must follow under R.C 3109.04(E) when modifying a shared parenting plan in Fisher v. Hasenjager, 116 Ohio St.3d 53, 876 N.E.2d 546, 2007 Ohio 5589.
In Fisher, the court acknowledged a split among Ohio's appellate districts regarding when each of the two subsections of R.C. 3109.04(E) apply in modifying a shared parenting plan. Fisher, 116 Ohio St.3d at 54.
Prior to the decision in Fisher, this Court had held that the trial court was permitted to modify the shared-parenting plan with respect to the residential parent and legal custodian of the child under R.C. 3109.04(E)(2)(b).
However, this Court is now bound by the Fisher decision. In Fisher, the Ohio Supreme Court addressed the certified question:
is a change in the designation of residential parent and legal custodian of children a 'term' of a court approved shared parenting decree, allowing the designation to be modified solely on a finding that the modification is in the best interest of the children pursuant to R.C. 3109.04(E)(2)(b) and without a determination that a 'change in circumstances' has occurred pursuant to R.C. 3109.04(E)(1)(a)? Fisher, 116 Ohio St.3d at 54.
The Fisher Court determined the applicable statutory standard that must be applied to modify a shared parenting plan depended on what part of a shared parenting plan was being modified.
Specifically, the court found as follows:
Within the custody statute, a "plan" is statutorily different from a "decree" or an "order." a shared-parenting order is issued by a court when it allocates the parental rights and responsibilities for a child. R.C. 3109.04(A)(2). Similarly, a shared-parenting decree grants the parents shared parenting of a child. R.C. 3109.04(D)(1)(d). An order or decree is used by a court to grant parental rights and responsibilities to a parent or parents and to designate the parent or parents as residential parent and legal custodian.
However, a plan includes provisions relevant to the care of a child, such as the child's living arrangements, medical care, and school placement. R.C. 3109.04(G). a plan details the implementation of the court's shared-parenting order. for example, a shared-parenting plan must list the holidays on which each parent is responsible for the child and include the amount a parent owes for child support
A plan is not used by a court to designate the residential parent or legal custodian; that designation is made by the court in an order or decree. Therefore, the designation of residential parent or legal custodian cannot be a term of shared-parenting plan, and thus cannot be modified pursuant to R.C. 3109.04(E)(2)(b).
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, the child's residential parent, or either of the parents subject to shared parenting decree, 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. Conversely, R.C. 3109.04(E)(2)(b) requires only that the modification of the shared-parenting plan be in the best interest of the child.
The standard in R.C. 3109.04(E)(2)(b) for modification of a shared-parenting plan is lower because the factors contained in a shared-parenting plan are not as critical to the life of a child as the designation of the child's residential parent and legal custodian. the individual or individuals designated the residential parent and legal custodian of a child will have far greater influence over the child's life than decisions as to which school the child will attend or the physical location of the child during holidays. Further, factors such as the physical location of a child during a particular weekend or holiday or provisions of a child's medical care are more likely to require change over time than the status of the child's residential parent and legal custodian. Fisher, 116 Ohio St.3d at 59-60.