Friday, November 2, 2007

Local parental rights case sets precedent

November 1, 2007
The Daily Standard - Celina, Ohio

A local dad's fight and victory for equal parenting rights has resulted in a Supreme Court decision that will affect the rights of parents statewide.
The recent 5-2 ruling by the Ohio Supreme Court states that a judge must determine that a change of circumstances has occurred and the action is in the best interest of the child before a judge can change who is the child's residential parent or legal custodian.
In the last decades, five of the 12 district courts in Ohio have issued conflicting rulings on the subject - some requiring only the "best interest" portion of the Ohio Revised Code statute be met, while others followed an interpretation of the code that also required a change of circumstance be proven.
The ongoing conflict prompted the Supreme Court to hear the case of a local man to settle the issue once and for all.
The recent decision was based on a case that began in Mercer County Probate and Juvenile Court. Paul Fisher, 30, of Celina, claimed he was stripped of his shared parenting rights in 2005 following a judgment handed down by Judge Mary Pat Zitter. Zitter based her ruling solely on the best interest of the now 5-year-old daughter of Fisher and Emma Hasenjager of Celina. The couple were never married.
Fisher and Hasenjager shared equal parenting rights following Demetra's birth in October 2002. Then in January 2005, both parents filed for full custody of the child. Zitter designated Hasenjager as sole residential parent and legal custodian, leaving Fisher without rights to make major decisions in his daughter's life.
This ruling outraged Fisher because he felt Zitter's decision was based on her opinion of "best interest of the child" and there was no proof of a change of circumstance that would warrant stripping his parental rights. The recent Supreme Court ruling agrees, saying there must be proof that something has changed in order for a judge to change the status of a residential parent or legal custodian.
Fisher appealed Zitter's ruling to the Third District Court of Appeals, which upheld the local court's decision. However, that court stated that its interpretation of the applicable statutes was in conflict with rulings in other appellate districts.
Despite struggling emotionally and financially, Fisher opted to take the case to the Supreme Court.
"This has been a very long and hard road and it is still not over," Fisher said. "Every time I think about giving up, my daughter Demetra seems to sense it and gives me a hug, then I'm back in the fight full force."
Fisher is ecstatic about the Supreme Court action, which can be read on their Web site at www.sconet.state.oh.us. He couldn't be more pleased about the reaction it is having statewide. A friend from the Cleveland area called him this week to say he recently was awarded residential shared parenting and the status is protected by the precedent set in Fisher vs. Hasenjager.
But Fisher's own battle isn't over yet. His case now must be re-addressed by Zitter in the local court, he said.
"The case has been remanded, meaning it needs to be done over," Fisher explained.
He's not sure yet how or when the case will be addressed in the local court but he's ready to move on, he said.
"This is but one victory in a long battle ahead to establish shared parenting as the standard for children who have two fit parents. Kids deserve a mom and dad, it really is that simple," Fisher said.

Photo Caption: Paul Fisher and his 5-year-old daughter, Demetra, look through and organize court documents at his Celina home. Fisher recently took his case involving his child's custody arrangement to the Ohio Supreme Court and won. The case now sets precedent for other Ohio cases involving shared parenting.

This story and photo ran on the front page of the local newspaper for Celina, the County seat of Mercer County Ohio.

View article at DailyStandard.com
View a scanned file of the article

Ohio Supreme Court Opinion Summary (2 Pages)
Ohio Supreme Court Opinion (16 Pages)

Thursday, October 25, 2007

Ohio Supreme Court Opinion Summary

Court Must Find ‘Change in Circumstances’ Before Modifying Designation of Child’s Custodial Parent

2006-1815 and 2006-1853. Fisher v. Hasenjager
Slip Opinion No. 2007-Ohio-5589.

Mercer App. No. 10-05-14, 168 Ohio App.3d 321, 2006-Ohio-4190. Judgment reversed and cause remanded.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Blackmon, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Patricia Ann Blackmon, J., of the Eighth Appellate District, sitting for Cupp, J.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2007/2007-Ohio-5589.pdf

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions: http://www.supremecourtofohio.gov/ROD/newpdf/. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

(Oct. 25, 2007) In a decision announced today, the Supreme Court of Ohio held that before a court may modify the designation of a child's residential parent and legal custodian, the court must determine not only that the modification is in the best interest of the child, but also that a “change in circumstances” affecting the prior parenting arrangement has occurred. The Court's 5-2 majority decision was written by Chief Justice Thomas J. Moyer.

The case involved a dispute between Paul Fisher and Emma Hasenjager of Mercer County , who had a child together in 2002. In 2003 the couple entered into a court-approved shared-parenting agreement in which parental rights were shared equally and a detailed visitation schedule was established. In 2005, however, Fisher and Hasenjager filed separate motions asking the Mercer County Court of Common Pleas to modify the shared-parenting order, with each asking to be named as the child's sole residential parent and legal custodian. Following a hearing at which both motions were considered, the court issued a judgment that made no determination of a change in the circumstances of the parents, but held that it was in the best interest of the child that Hasenjager be named as the child's sole residential parent and legal custodian.

Fisher appealed that ruling to the 3rd District Court of Appeals, arguing that the trial court judgment was invalid because it had taken away his parental rights as co-residential parent and custodian without first making a required factual finding under R.C. 3109.04(E)(1)(a) that there had been a substantive “change in circumstances” of the child or of either parent that affected the prior parenting arrangement. The 3rd District affirmed the trial court's decision, holding that under a different provision of the statute cited by Fisher, R.C. 3109.04(E)(2)(b), the trial court had authority to “modify the terms” of the shared parenting agreement based solely on its finding that the modification was in the best interest of the child, without requiring a finding of changed circumstances.

The 3rd District certified that its interpretation of the applicable statutes was in conflict with rulings in several other appellate districts, and the Supreme Court agreed to hear arguments to resolve the conflict among districts.

Writing for the majority in today's decision, Chief Justice Moyer distinguished between a “decree allocating parental rights,” which may only be modified after a finding of changed circumstances of the child or parents, and a “shared-parenting plan” the terms of which may be modified based on the less-demanding standard of being in the best interest of the child.

“ Within the custody statute, a ‘plan' is statutorily different from a ‘decree' or an ‘order,'” wrote Chief Justice Moyer. “A shared-parenting order is issued by a court when it allocates the parental rights and responsibilities for a child. Similarly, a shared-parenting decree grants the parents shared parenting of a child. 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. A plan details the implementation of the court's shared-parenting order. For example, a shared-parenting plan must list the holidays 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).”

In this case, the Chief Justice noted, the 2005 trial court order appealed by Fisher changed the allocation of parental rights set forth in the shared-parenting decree that had previously been in place. Accordingly, he wrote, the trial court was required to make prior findings not only that the modification was in the best interest of the child, but also that there had been a material change in the circumstances of the child or at least one parent. “Modification of a prior decree, pursuant to R.C. 3109.04(E)(1)(a), may be made only ‘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 a shared parenting decree, and that the modification is necessary to serve the best interest of the child,'” Moyer wrote.

Quoting from two prior Supreme Court decisions, Davis v. Flickinger (1997) and Wyss v. Wyss (1982), the Chief Justice observed: “The requirement that a parent seeking modification of a prior decree allocating parental rights and responsibilities show a change of circumstances is purposeful: ‘The clear intent of [R.C. 3109.04(E)(1)(a)] is to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the child a “better” environment. The statue is an attempt to provide some stability to the custodial status of the children, even though the parent out of custody may be able to prove that he or she can provide a better environment.'”

Chief Justice Moyer's opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O'Connor, Terrence O'Donnell and Patricia Ann Blackmon of the 8th District Court of Appeals, sitting for Justice Robert R. Cupp.

Justice Paul E. Pfeifer entered a dissenting opinion, joined by Justice Judith Ann Lanzinger, stating that in his view the action taken by the trial court in this case was not the “modification” of a joint parenting order as determined by the majority, but was rather the “termination” of the prior shared-parenting order between Fisher and Hasenjager – an action that did not require the court to make a finding of changed circumstances.

“It is clear from their court filings and their testimony that both parties sought to be designated the sole residential parent and legal custodian of Demetra while granting the other parent generous visitation rights,” wrote Justice Pfeifer. “While both parents would remain involved in the child's life in such an arrangement, that is not ‘shared parenting.' The designation of one parent as the residential parent and legal custodian occurs only in cases where shared parenting is rejected. ... Since both parents requested a termination of shared parenting, the trial court proceeded according to statute. Pursuant to R.C. 3109.04(E)(2)(c), ‘[t]he court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children.'”

Contacts
Douglas B. Dougherty, 614.798.1933, for Paul Fisher.

James A. Tesno, 419.586.6481, for Emma Hasenjager.