Ohio Rev. Code Ann. § 3109.04

Section 3109.04(D)(1)(a)(ii) requires the trial court’s independent judgment on motions to modify a shared parenting plan to include findings of fact and conclusions of law; an earlier magistrate’s decision cannot satisfy that requirement.

Hodson v. Hodson, Unpublished Decision (2-15-2006) · filed 2006-02-15(D)(1)(a)(ii)

When a statute mandates that the trial court's judgment contain findings of fact and conclusions of law, it follows directly that the trial court may not simply rely upon an earlier magistrate's decision to satisfy the statute. Accordingly, this Court holds that the trial court's independent judgment entered upon the magistrate's decision must meet the statutory requirements of R.C. 3109.04 (D)(1)(a)(ii).

Section 3109.04(C) requires a custody investigator, including a guardian ad litem performing that function, to submit a written report and be available for cross-examination by the parents.

Schill v. Schill, Unpublished Decision (9-24-2004) · filed 2004-09-24(C)

R.C. 3109.04 (C) provides that a trial court can appoint an investigator in a child custody proceeding to investigate the character, family relations, past conduct, earning ability, and financial worth of each parent and to report in writing on its findings. ... The guardian in the instant case essentially performed the function of the investigator by interviewing the parties, witnesses, and Christian and communicating with the trial judge. ... The trial court's failure to require the guardian to submit a report and the trial court's consideration of the guardian's findings, without providing the parties opportunity to cross-examine the guardian, violated due process and was an abuse of discretion.

Section 3109.04(A) requires an evidentiary hearing at which the parents can testify before a court changes a contested allocation of parental rights.

Kelm v. Kelm, Unpublished Decision (3-4-2004) · filed 2004-03-04(A)

Given the fact that the parties were unable to reach an agreement on shared parenting, the trial court was required to conduct a hearing at which time appellee and appellant could present testimony as to the contested matters. Snouffer, supra. Although a trial court has broad discretion concerning the allocation of parental rights and responsibilities, such discretion is not absolute, and must be guided by the language set forth in R.C. 3109.04 (A).

Section 3109.04(C) does not prohibit a court-appointed custody investigator from including recommendations in the investigation report.

Martin v. Martin, Unpublished Decision (2-23-2004) · filed 2004-02-23(C)

Neither the local rule nor R.C. 3109.04 (C) mentions recommendations of the investigator. Donna interprets the absence of reference to recommendations by the investigator to mean such are forbidden by the rules. This interpretation is not supported by the case law in Ohio.

Section 3109.04(C) permits psychological evaluations of parents and children to assess parental fitness and the allocation of custody and visitation rights.

Citta-Pietrolungo v. Pietrolungo, Unpublished Decision (6-26-2003) · filed 2003-06-26(C)

Civ.R. 35 and R.C. 3109.04 (C) both permit psychological evaluation of the parties. Civ.R. 35 permits a physical or mental examination when the party's or person in custody of the party's physical or mental condition is in controversy. R.C. 3109.04 also permits parents and/or children to submit to psychological evaluations for the purpose of discovering the fitness of the parents and the allocation of their rights in regard to custody and visitation. Based on the allegations of the guardian ad litem, we conclude his request for a forensic custody and visitation evaluation to be proper and based on a showing of good cause.

A custody decision under § 3109.04 cannot be based entirely on an investigator’s report.

Hillard v. Hillard · filed 1971-06-21

Inasmuch as the record indicates that the decision of the trial court was based entirely on the report of the investigator, the order of the court is vacated and held for naught and the cause is remanded for further proceedings according to law.

Section 3109.04(A) permits a court to order psychological evaluations when considering a modification of child custody.

Watkins v. Watkins · filed 1990-08-31(A)

Inasmuch as the court may consider the mental health of the parties to determine the best interests of the children, and must determine whether the present environment endangers the mental or emotional development of the children, we find that the court may also order psychological evaluations regarding the modification of custody.

Section 3109.04(A), together with R.C. 2317.39 and Civ.R. 75(D), authorizes a trial court to consider court-ordered custody-investigation reports as evidence.

Roach v. Roach · filed 1992-04-08(A)

We concur with this view and hold that R.C. 3109.04(A), 2317.39, and Civ.R. 75(D), taken together, authorize a trial court to consider court-ordered custody-investigation reports as evidence.

Section 3109.04(A) requires a hearing at which both parents may testify before a contested allocation of parental rights and responsibilities, including shared parenting.

Snouffer v. Snouffer · filed 1993-04-07(A)

The statute clearly indicates that there is to be a hearing where both parents may testify before there is any allocation of parental rights and responsibilities, including an order for shared parenting.

Custody determinations under R.C. 3109.04 must follow the statute and may be reversed for abuse of discretion or if they are against the manifest weight of the evidence.

Schanda v. Schanda, Unpublished Decision (2-24-1997) · filed 1997-02-24

Custody determinations must be guided by the language of R.C. 3109.04 , and will be reversed only upon a showing of an abuse of discretion, or if the decision is against the manifest weight of the evidence.

Section 3109.04(C) requires findings of fact and conclusions of law for final allocations of parental rights and later modifications, but not for a magistrate’s temporary allocation during a pending divorce.

State ex rel. Thompson v. Spon · filed 1998-11-09(C)

But here, R.C. 3109.04(C) does not require findings of fact and conclusions of law regarding a magistrate’s temporary allocation of parental rights during a pending divorce action.

Section 3109.04(C) gives a trial court discretion to order medical, psychological or psychiatric examinations of parents and their minor children; it does not require those examinations.

Matter of Diedra Renee R., Unpublished Decision (3-12-1999) · filed 1999-03-12(C)

R.C. 3109.04 (C) provides, in part, that a trial court "may" order parents and their minor children to submit to medical, psychological or psychiatric examinations. The statute's use of the word "may" indicates that such an order is discretionary, not mandatory.

A party waives an objection that a custody judgment does not state the statutory best-interest factors by failing to request findings of fact and conclusions of law under Civ.R. 52.

Ruby v. Ruby, Unpublished Decision (8-11-1999) · filed 1999-08-11(F)(1)

Appellant argues that the court abused its discretion by ordering split residential parenting without setting forth the relevant statutory factors pursuant to R.C. 3109.04 .(F)(1). Appellant argues that the court's statement that split parenting is in the best interests of the children is insufficient to support the judgment. While appellant now claims that the court's judgment was too general, appellant failed to file a timely request for findings of fact and conclusions of law pursuant to Civ.R. 52. Appellant has waived any error by failing to request findings of fact, which would have revealed the specific reasons underlying the court's finding of best interests.

Section 3109.04(C) leaves a further investigation to the trial court’s discretion when the evidence already adequately addresses the child’s best interests.

Mullins v. Zink, Unpublished Decision (8-30-1999) · filed 1999-08-30(C)

Appellant claims the trial court erred in failing to conduct an independent investigation including an interview of the child and the failure to appoint a guardian ad litem. We disagree. ... We fail to find any stone left unturned in the evidence presented that would have warranted further investigation.

Section 3109.04(C) treats a guardian ad litem as an investigator and requires an opportunity to cross-examine the guardian when the court considers the guardian's report as evidence.

Webb v. Lane, Unpublished Decision (3-15-2000) · filed 2000-03-15(C)

Hence, a guardian ad litem is an investigator within the meaning of R.C. 3109.04 (C). ... Based upon these holdings, we find that a trial court, in order to consider a guardian ad litem's report without violating the parties' due process rights, must afford all parties the opportunity to cross-examine the guardian ad litem regarding his or her report.

Section 3109.04(A) does not require specific findings of fact to support an original custody determination.

Morris v. Pyles, Unpublished Decision (3-14-2001) · filed 2001-03-14(A)

Although certain custody determinations do require that the trial court make specific findings of fact to support its decision (e.g., modification of a prior decree allocating parental rights and responsibilities, R.C. § 3109.04 (E)(1)); custody decrees based on a finding that a parent committed a criminal offense involving abuse or neglect of children, R.C. § 3109.04 (C)), there is no such requirement in R.C. § 3109.04 (A).

Section 3109.04(A) does not entitle a grandparent who has not been made a party to another evidentiary hearing on placement after an opportunity to present evidence.

In Re bailey/myers Children, Unpublished Decision (3-15-2001) · filed 2001-03-15(A)

In the matter sub judice, even though the above statute makes no mention of testimony by a grandparent who has not been named a party, the trial court gave Baker the opportunity at the dispositional hearing of March 29, 2000, to present evidence concerning the appropriateness of her home for placement of Melina. Nonetheless, pursuant to a magistrate's decision dated April 5, 2000 and a judgment entry dated May 19, 2000, the court determined that Baker's home was not appropriate for Melina. Appellant Baker cites no authority for her asserted right to essentially re-argue most or all of these same issues.

Section 3109.04(C) permits either parent to cross-examine a guardian ad litem who investigates for the court about the factual basis for the guardian’s conclusions.

Lawrence v. Lawrence, Unpublished Decision (4-13-2001) · filed 2001-04-13(C)

From her report, there is no question that the GAL acted in an investigative capacity reporting to the court at the court's request. Thus, she is subject to cross-examination pursuant to R.C. 3109.04 (C).

Section 3109.04(C) permits cross-examination of a guardian ad litem who investigates custody and reports findings, but denying cross-examination is harmless when it would not have changed the shared-parenting decision.

Evans v. Evans, Unpublished Decision (9-20-2001) · filed 2001-09-20(C)

Thus, normally under such circumstances, the trial court "should have provided the parties an opportunity to cross-examine the guardian ad litem under oath concerning the contents of her reports." Id. ... Upon review, we similarly find, based upon the circumstances of this case, that the court's decision to deny plaintiff's motion for shared parenting would not have been different had plaintiff been permitted to cross-examine the guardian. Accordingly, we find no prejudicial error to plaintiff as a result of the court's failure to allow cross-examination of the guardian ad litem.

Section 3109.04(C) does not require a showing of good cause before a court orders a mental examination.

Harness v. Harness · filed 2001-06-04(C)

R.C. 3109.04(C) does not contain any requirement that good cause be shown for a mental examination ordered under this section.

Section 3109.04(B)(3) supports striking a child's statements offered to substantiate a parent's custody-related complaint.

In the Matter of Szerlip, Unpublished Decision (07-02-2001) · filed 2001-07-02(B)(3)

The Court also found that the complaint attempted to utilize statements of Bradley Szerlip in support thereof in contravention of R.C. § 3109.04 (B)(3) and struck such material, finding that without such attachment the complaint was insufficient under R.C. § 2151.27 and Rule 10(B)(1) of the Ohio Rules of Juvenile Procedure. ... However, the basis of the Court's decision, except for properly striking the child's statements, was that admittedly these matters were pending before the General Division.

Section 3109.04 permits a court allocating parental rights and responsibilities to consider a parent's request for genetic testing.

Saluppo v. Saluppo, Unpublished Decision (5-31-2006) · filed 2006-05-31

Consequently, the trial court was free to consider all evidence presented including Husband's request for genetic testing.

Section 3109.04(E)(1)(a)(iii) does not require express findings that the advantages of changing the allocation of parental rights outweigh the likely harm.

Cameron v. Cameron · filed 2011-08-08(E)(1)(a)(iii)

{¶11} Mr. Cameron also suggests that the trial court committed legal error when it failed to make express findings concerning its determination that the advantages of altering the original allocation of parental rights outweighed the likely harm pursuant to R.C. 3109.04(E)(1)(a)(iii). However, he does not cite any authority supporting this claim, and we see no authority for this proposition in the statute. See App.R. 16(A)(7).

An original allocation of parental rights requires evidence sufficient to determine the child’s best interests; awarding custody solely because a parent receives the marital home is an abuse of discretion.

Ingram v. Ingram · filed 2012-06-06(F)(1)

In a divorce action, the court must allocate parental rights and responsibilities in accordance with the child's best interests. R.C. 3109.04(A), (B)(1). ... The trial court decided to award custody to Terry based solely upon its disposition of the marital residence to Terry, which is unreasonable and arbitrary. The trial court's custody determination was erroneous as there was insufficient evidence presented upon which an original allocation of parental rights and responsibilites could be made.

Section 3109.04(C) permits a court to obtain a report on a parent’s earning ability and gives either parent an opportunity to cross-examine the investigator; a parent who does not use that opportunity does not establish plain error in admitting the report.

Berete v. Berete · filed 2021-08-26(C)

Nevertheless, it is necessary for us to discuss this statute and rule when considering the argument regarding cross-examination. ... Appellant does not assert that he did not receive the report less than seven days from trial. See Civ.R. 75(D); see also R.C. 3109.04(C). The record reflects appellant subpoenaed witnesses to testify at trial, however, Dr. Oestreich was not one of them. Appellant argues that his position would have been bolstered by his ability to cross-examine Dr. Oestreich; however, the record reflects appellant raised all issues with Dr. Oestreich's report while testifying on direct. ... With all this in mind, we cannot find the trial court plainly erred in admitting Dr. Oestreich's report.

Section 3109.04(C) requires an opportunity to cross-examine a guardian ad litem whose investigation report is admitted as evidence in allocating parental rights.

Dobie v. Dobie · filed 2022-01-31(C)

In this case, where the GAL’s report was admitted as evidence and considered as such, the trial court’s statement that it would not permit examination of the GAL would appear to conflict with its obligations under R.C. 3109.04(C) and Civ.R. 75(D) and with the demands of due process.

Section 3109.04(F)(1) does not require a trial court allocating parental rights to make an express finding about which parent is more credible.

A.Y. v. E.Y. · filed 2023-05-18(F)(1)

A.Y.’s argument that the trial court did not make a finding as to whether A.Y. or E.Y. was more credible lacks merit. A.Y. does not present any case law to support this proposition nor is such a finding required pursuant to R.C. 3109.04(F)(1).

Section 3109.04 does not apply to a custody dispute when neither party seeking custody is a parent of the children.

In Re Allen, Unpublished Decision (6-1-2004) · filed 2004-06-01(A)(2)

Since the court, in Bonfield, held R.C. 3109.04 was not applicable when one of the parties was a non-parent, we find that such section also would not apply in the case sub judice since neither Humphrey nor either of the Hogans is a parent of Doria and/or Bryanna, as the term parent is defined in R.C. 3111.01 .

Section 3109.04(D)(2) permits placing a child with a relative based on the child's best interest in a custody dispute originating in domestic relations court.

In the Matter of Daily, Unpublished Decision (2-12-2003) · filed 2003-02-12(D)(2)

This statement by the Fifth District refers to R.C. 3109.04 (D)(2), which permits the trial court to commit the child to a relative when it determines that "it is in the best interest of the child for neither parent to be designated the residential parent and legal custodian." However, that section addresses custody disputes between parents and nonparent relatives that originate in the domestic relations court.

Section 3109.04(D)(2) requires proof by a preponderance of the evidence that a parent is unsuitable before a nonparent relative may receive custody.

Vance v. Vance · filed 2003-01-24(D)(2)

Moreover, in order for Bonnie to be awarded custody of Michael in this instance, rather than Margaret, Michael’s mother, the trial court examined whether Michael’s parents were unsuitable. For Bonnie to be awarded custody, the magistrate and the trial court would have had to determine by a preponderance of the evidence that Margaret and Joshua abandoned Michael, contractually relinquished custody, demonstrated a total inability to provide care or support for Michael, or were otherwise unsuitable, so that an award of custody would have been detrimental to Michael.

Section 3109.04 permits custody with a relative when custody with neither parent is in the child’s best interest, even if the parents have not been found unfit; its substantive standard controls over conflicting Civ. R. 75(P).

Boyer v. Boyer · filed 1976-04-08

This court holds that the- conflicting portions of Civ. R. 75 (P) and R. C. 3109.04 deal with matters of substantive law,-.and that the, statute, therefore, must control. The object of inquiry herein is the determination of who shall have custody of George. The -General Assembly has granted to children the right,to be placed with the relative whose custodianship would; be in the .child’s.best interest.

Section 3109.04 directs a court to decide custody between separated or divorced parents according to the children’s best interests, but does not supply that discretion in a contest between an illegitimate child’s mother and putative father.

In re Brenda H. · filed 1973-03-19

R. C. 3109.04 provides that upon hearing the court shall decide which of the parents shall have custody of the offspring taking into account that which would be in the best interests of the children. Thus as between husband and wife living separate and apart or divorced the court in the exercise of its sound discretion decides which of the parents shall have custody of the children. In our opinion this court' has no such discretion in a contest between the putative father and the mother of an illegitimate child for the simple reason that the mother has a right of custody that is superior to that of the putative father.

Section 3109.04 applies to custody determinations in juvenile court; separate juvenile statutes govern disposition after a finding of neglect, dependency, delinquency, or unruliness.

In Re Height · filed 1975-06-20

A distinction must be made between a determination of custody in a juvenile court and a placement or disposition of a child after a finding that such child is neglected, dependent, delinquent or unruly. R. C. 3109.04 is applicable to the former and R. C. 2151.353, 2151.354, and 2151.355 are applicable to the latter.

Section 3109.04 governs the disposition of a child custody matter certified to juvenile court when the certification does not constitute a neglect, dependency, or abuse complaint.

In Re Snider · filed 1984-03-16

However, such certification does not constitute a complaint in the juvenile court that such a child is neglected, dependent or abused and those dispositions provided for under R.C. 2151.353 pertaining to neglected, dependent or abused children, including an award of permanent custody to a county welfare department which has assumed the administration of child welfare, are not applicable to such a child, disposition thereof being subject to and controlled by R.C. 3109.04.

Section 3109.04(A) allows certification of custody to juvenile court on sufficient evidence that neither parent should have custody in the child’s best interest; certification does not prevent a later award to either parent.

Robinson v. Robinson · filed 1984-07-17(A)

Since the certification order does not necessarily preclude custody of the child being awarded to defendant or plaintiff, we find that there was sufficient evidence to permit the trial court to determine that the best interest of the child would probably be that neither parent have custody for certification purposes.

Section 3109.04(C) does not govern placement or disposition after a child is found neglected, dependent, or abused.

In re Babcock · filed 1990-03-09(C)

R. C. 3109.04 and .05 are not applicable to placement or disposition of a child after a finding that such child is neglected, dependent or abused.

Section 3109.04(A) requires a domestic relations court to find that custody with neither parent is in the child’s best interest before it may certify a custody dispute between parents and a relative to juvenile court; without that finding, the juvenile court does not acquire jurisdiction.

State ex rel. Easterday v. Zieba · filed 1991-04-03(A)

However, if, after dismissing the divorce action, the domestic relations court elects to certify the matter of custody to juvenile court, we hold that, under R.C. 3105.21(B) and 3109.04, the domestic relations court must specifically find custody in neither parent to be in the child’s best interest, or all jurisdiction over the matter is lost.

Section 3109.04(D)(2) permits a common pleas court to certify a custody case to juvenile court upon finding that custody with neither parent is in the child’s best interest, and the juvenile court must accept that certification.

In Re Whaley · filed 1993-02-11(D)(2)

Under R.C. 3109.04(D)(2), if the common pleas court finds that custody to neither parent is in the best interest of the child, the juvenile court must accept the certification.

Section 3109.04(F)(1) best interest factors may inform a juvenile court’s custody decision in a dependency action, but the court need not expressly consider and balance them when awarding custody under R.C. 2151.353(A)(3).

In Re Pryor · filed 1993-02-12(F)(1)

Thus, in our opinion, the juvenile courts should consider the totality of the circumstances, including, to the extent they are applicable, those factors set forth in R.C. 3109.04(F). There is, however, no statutory mandate that they be expressly considered and balanced together before fashioning an award of custody under R.C. 2151.353(A)(3).

Under former § 3109.04(C), a court may exercise its discretion to award custody according to the child’s best interests.

Reynolds v. Goll · filed 1996-03-04(C)

In determining the best interests of the minor, under R.C. 3109.04(C) as it was in effect at the time, the trial court acted within its discretion by awarding custody to appellees.

Section 3109.04 supplies the standards for reviewing a custody motion in juvenile court under R.C. 2151.23(F).

Matter of Gray, Unpublished Decision (2-24-1997) · filed 1997-02-24

Under R.C. 2151.23 (F), the court is required to exercise this jurisdiction "in accordance with R.C. 3109.04 * * *." Accordingly, we find that the trial court was correct in reviewing appellant's motion using the standards set forth in R.C. 3109.04 .

A parent who agrees to be bound by the guardian ad litem’s and home investigator’s recommendations and the court’s interviews waives an objection that the court did not find the parent unfit under § 3109.04.

Brown v. Boring, Unpublished Decision (3-19-1998) · filed 1998-03-19

By agreeing to be bound by the recommendations of the Guardian Ad Litem and the home inspector, as well as the trial court's in-chambers interviews with James, Jessica, and Khristopher, appellant waived her right to claim any error in the trial court's failure to find her unfit pursuant to R.C. 3109.04 , and also waived any error in the court's failure to find a change in circumstances which would justify a modification of custody.

Section 3109.04(D)(2) applies the child’s best-interest standard to parent-relative custody disputes in divorce proceedings; original juvenile-court custody actions instead require consideration of parental suitability.

Matter of Wilson, Unpublished Decision (4-30-1999) · filed 1999-04-30(D)(2)

If the custody dispute arises in the context of a divorce, under R.C. 3109.04 (D)(2) and Boyer , the court need only consider the best interest of the child. ... On the other hand, if a custody dispute arises as an original action in the juvenile court, the common-law Perales standard applies and the court must weigh parental suitability.

Section 3109.04 supplies the best-interest standard for terminating a guardianship when a parent has permanently relinquished custody.

In Re Hoffman, Unpublished Decision (12-22-2000) · filed 2000-12-22

The determination of whether appellee forfeited his custody rights is vital as it dictates which standard is to be applied in a termination of guardianship proceeding, to wit: the "best interest of the child" standard under R.C. 3109.04 or the "good cause" standard set forth in R.C. 2111.46 . If it is determined by the probate court that the parent has permanently relinquished custody, then the best interest of the child standard must be used in adjudicating a motion to terminate the guardianship.

Section 3109.04 does not require a change-in-circumstances or best-interest finding before awarding custody to a suitable parent who has not previously lost custody to a nonparent.

Scavio v. Ordway · filed 2010-03-15

Finally, where a trial court determines that a parent is suitable for custody and the parent has not previously lost custody of the child to a non-parent, the trial court does not need to further determine that a change in circumstances has occurred or that custody is in the best interest of the child.

Section 3109.04(F)(1) best-interest factors do not determine parental unsuitability in a custody dispute with a nonparent; unsuitability requires detriment to the child.

Purvis v. Hazelbaker · filed 2010-12-22(F)(1)

Hazelbaker argues that the first aspect of this finding of fact, i.e., the Heatons’ safe and stable home, is a proper consideration under the R.C. 3109.04(F)(1) best-interest analysis but has no import in determining whether retaining custody of B.P. would be detrimental to her under Perales. Hazelbaker is correct.

Section 3109.04(D)(2) permits a court to award custody to a relative.

Butts v. Hill · filed 2011-10-27(D)(2)

In addition, R.C. 3109.04(D)(2) permits a custody award to a relative.

Section 3109.04(E)(1)(a) does not govern a custody dispute between nonparents when the earlier custody award was temporary and did not allocate parental rights and responsibilities.

In re J.R.P. · filed 2018-09-27(E)(1)(a)

On its face, then, R.C. 3109.04 does not apply when making a custody determination by and between nonparents, especially when any earlier custody decision can only be called temporary and discretionary with the court and did not involve any allocation of “parental rights and responsibilities.”

Section 3109.04(F)(1) presumes both parents are suitable in a custody dispute between them, but a finding of parental unsuitability in a simultaneous custody dispute with a nonparent may rebut that presumption.

In Re Schwendeman, Unpublished Decision (2-7-2006) · filed 2006-02-07(F)(1)

If the evidence demonstrates that a parent is unsuitable for purposes of a custody dispute between the natural parent and a non-parent, it logically follows that the finding of unsuitability would also preclude that parent from prevailing in a custody dispute between the two natural parents. Hence, we conclude that a finding of parental unsuitability in the context of a natural parent — non-parent custody dispute may rebut the R.C. 3109.04 (F)(1) presumption that a parent is suitable to care for the child in the context of a simultaneous custody dispute between the two parents.

Section 3109.04(A)(2) limits shared parenting agreements to statutory parents and does not extend parent status through a psychological or second-parent test.

In re Bonfield · filed 2002-12-13(A)(2)

Therefore, as R.C. 3109.04 specifically uses the term “parent” and this term is defined in R.C. 3111.01, we find it inappropriate to adopt appellants’ four-part test to broaden the narrow class of persons who are statutorily defined as parents for purposes of entering a shared parenting agreement.

Section 3109.04(D)(2) requires a finding of parental unsuitability before custody may be awarded to a nonparent over a parent, even though its text refers to the child’s best interest.

Lee v. Lee, Unpublished Decision (7-3-2002) · filed 2002-07-03(D)(2)

In spite of the fact that the precise language of R.C. 3109.04 (D)(2) 3 specifically refers to the best interest of the child, a majority of this court has concluded that the unsuitability rule of In re Perales , supra, applies regardless of whether the custody dispute was brought under R.C. 2151.23 or R.C. 3109.04 . ... Since this case involves a custody dispute between a parent and a nonparent, the unsuitability test, rather than the best interest standard, applies.

In a custody dispute between parents, § 3109.04 requires allocation of parental rights according to the children's best interests without a finding that either parent is unsuitable.

Grimm v. Grimm, Unpublished Decision (6-19-2002) · filed 2002-06-19(A)

Suitability is not an issue when determining custody disputes between parents. In any divorce action, the trial court must allocate the parental rights and responsibilities for the care of the minor children of the marriage. R.C. 3109.04 (A). Pursuant to R.C. 3109.04 , the court must make its determination based upon what is in the best interests of the children.

Section 3109.04 limits parental rights to natural or adoptive parents; a nonparent must first prove parental unsuitability to receive those rights.

In Re Jones, Unpublished Decision (5-10-2002) · filed 2002-05-10(A)(1)

Based upon the above discussion, because Dvorak is neither the natural nor the adoptive parent of Cheyenne, she cannot be a "parent" within the meaning of R.C. 3109.04 , and she is not entitled to an award of parental rights under the statute without first proving that Jones is unsuitable under Perales .

Section 3109.04(A)(2) limits shared parenting agreements to statutory parents and excludes a caregiver who stands in loco parentis.

In re Bonfield · filed 2002-08-28(A)(2)

That the statute refers to “parent” reflects legislative intent to exclude from the benefits of R.C. 3109.04 guardians or custodians in loco parentis.

Section 3109.04 governs custody disputes arising out of divorce actions, where custody may be awarded based on the child’s best interest without a finding of parental unsuitability.

Perales v. Nino · filed 1977-11-30

To the extent that R. C. 3109.04 proceedings may grant custody in the “best interest” of the child without a finding of parental unsuitability (Boyer v. Boyer [1976], 46 Ohio St. 2d 83), Shirley Perales is correct. ... R. C. 3109.04 deals with custody disputes arising out of divorce actions.

In a custody dispute between a parent and a nonparent under § 3109.04, the court must determine parental suitability before applying the child’s best-interest test; detriment to the child is measured by its harmful effect on the child.

In Re Dunn · filed 1992-04-17(D)(2)

The Perales decision involved a dispute between a parent and a nonparent, and modified the construction of R.C. 3109.04 by combining the best-interest test and the prior-suitability test. ... Thus, suitability of the parent must first be determined. However, if the unsuitability is based on detriment to the child, courts must measure suitability in terms of the harmful effect on the child, not in terms of society’s judgment of the parent.

Section 3109.04 permits an award of custody to a relative when it serves the child’s best interest without an explicit finding that the parent is unsuitable.

Baker v. Baker · filed 1996-08-21(D)(2)

R.C. 3109.04 does not require an explicit finding of unsuitability, and this court concludes that such an explicit finding is not mandated by either the United States or Ohio Constitution. Rather, a parent’s constitutional right to custody of his child is sufficiently protected by the requirement of R.C. 3109.04 that custody not be awarded to a nonparent unless such an award is in the best interest of the child and by the implicit finding regarding suitability included in that finding.

Section 3109.04(D)(2) permits an award of custody to a nonparent only if a preponderance of the evidence shows that the parents are unsuitable.

Houser v. Houser, Unpublished Decision (8-31-1998) · filed 1998-08-31(D)(2)

The trial court can only deny a parent custody of a child and grant custody to a third party if a preponderance of the evidence shows the parents to be unsuitable.

Section 3109.04(E)(1)(a) applies its best-interests test when parents have given permanent custody to nonparents; a parent who surrendered only temporary custody need not meet that test to regain custody.

In the Matter of Borders, Unpublished Decision (12-30-1999) · filed 1999-12-30(E)(1)(a)

The "best interests" tests of R.C. 3109.04 (E)(1)(a) applies in situations where parents have given permanent custody of a child to non-parents. ... Where a parent has surrendered only a temporary custody of a child to non-parents, they retain a paramount right to the custody of the child and need not overcome the heavy burden of the statute in order to regain custody.

Section 3109.04 uses a best-interest test, while an original custody dispute between a parent and a nonparent in juvenile court is governed by the suitable parent’s paramount right to custody.

Carlisle v. Carlisle, Unpublished Decision (8-22-2000) · filed 2000-08-22

Therefore, although the best interest of the child is the primary standard applied in custody cases, in original custody disputes between a parent and a non parent, the general rule in Ohio is that parents who are suitable have a paramount right to custody of their minor children. ... This Court has consistently recognized a distinction between the Perales test and the "best interest of the child" test enunciated in R.C. 3109.04 . ... Therefore, as between Steven and Mark Reid, Reid has a paramount right to custody unless the trial court could find by a preponderance that he was an unsuitable parent.

Section 3109.04(D)(2) violates due process by allowing a court to award custody to a nonparent based solely on the child’s best interests, without giving weight to a parent’s right to make childrearing decisions.

Esch v. Esch, Unpublished Decision (2-23-2001) · filed 2001-02-23(D)(2)

Thus, R.C. 3109.04 (D)(2) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and cannot be used as a basis to grant custody to a nonparent.

Section 3109.04(D)(2) permits a domestic relations court to award custody to a nonparent relative when the court finds that doing so serves the child’s best interest.

State Ex Rel. Reeves v. O'malley, Unpublished Decision (6-1-2001) · filed 2001-06-01(D)(2)

Nevertheless, in the many circumstances following divorce and death, Ohio has granted the domestic relations court the authority to examine the facts and the power to award custody of a child to a nonparent, especially a relative under R.C. 3109.04 .

Section 3109.04(D)(2) requires a finding that a parent is unsuitable before custody may be awarded to a nonparent.

Satterfield v. Satterfield, Unpublished Decision (6-13-2001) · filed 2001-06-13(D)(2)

In custody proceedings between a parent and a nonparent, custody may not be awarded to the nonparent without first determining that the parent is unsuitable.

Section 3109.04(D)(2) permits a court to award custody to a nonparent relative based on the child’s best interest without finding either parent unsuitable.

Downing v. Lella, Unpublished Decision (9-10-2001) · filed 2001-09-10(D)(2)

R.C. 3109.04 does not require a finding of unsuitability before placing custody with a nonparent relative. Rather, it requires that the custody decision be in the child's best interest.

In a parentage action, § 3109.04’s best-interest standard does not govern a parent’s request to regain custody from nonparents after a temporary custody agreement without first applying the parental-suitability test.

Gorslene v. Huck, Unpublished Decision (10-24-2001) · filed 2001-10-24(D)(2)

The question before this court is whether it is contrary to law for a trial court to proceed under the `best interest of the child' test enunciated in R.C. 3109.04 , when the parent requesting a change in custody has previously consented to a grant of temporary custody of her child to the maternal grandparents, and when the original grant of temporary custody arose out of a parentage action. ... We find, under the circumstances presented in the matter sub judice , the trial court erred in failing to apply the suitability test.

Section 3109.04(A)(2) allows shared parenting when both parties are legal parents; a final acknowledgment of paternity can establish parent status despite contrary genetic testing.

Thomas v. Cruz, Unpublished Decision (11-12-2003) · filed 2003-11-12(A)(2)

R.C. 3109.04 (A)(2) provides that a court may allocate parental rights and responsibilities to both "parents" if it finds that shared parenting is in the best interest of the child. ... The evidence before the trial court established that a parent and child relationship existed between Thomas and D.T., pursuant to either former R.C. 5101.314 or former R.C. 3111.211 , due to the formal acknowledgement of paternity made by Cruz and Thomas and the administrative order that Thomas pay child support. ... Consequently, the trial court did have the authority to enforce the shared parenting agreement in this case, as it was entered into by the parents of D.T.

Section 3109.04 applies to custody disputes between married or formerly married couples and does not confer jurisdiction over a custody dispute between unmarried partners.

In Matter of J.D.F., 07ap-922 (6-10-2008) · filed 2008-06-10

Appellant thus correctly points out that R.C. 3109.04 applies to married or formerly married couples and thus cannot provide the trial court with jurisdiction in this matter.

Section 3109.04(F)(1) requires a trial court allocating parental rights to consider a non-exclusive list of factors when determining the children's best interests.

Fricke v. Fricke, Unpublished Decision (9-18-2006) · filed 2006-09-18(F)(1)

To determine the children's best interests, a trial court must consider the non-exclusive list of factors set forth in R.C. 3109.04 (F)(1).

Section 3109.04(F)(1) requires the trial court to consider its listed factors when determining a child’s best interests and permits consideration of additional factors.

MacFarlane v. MacFarlane, Unpublished Decision (6-22-2006) · filed 2006-06-22(F)(1)

To determine the child's best interests, the trial court is required to consider the factors outlined in R.C. 3109.04 (F)(1), and may consider additional factors as well.

Section 3109.04(F)(1) gives a nonexclusive list of factors for allocating parental rights and responsibilities, including considerations of the past, present, and future.

Diffenbacher v. Diffenbacher, Unpublished Decision (5-5-2006) · filed 2006-05-05(F)(1)

R.C. 3109.04 (F)(1) sets forth a non-exclusive list of factors the trial court should consider in allocating parental rights and responsibilities; R.C. 3109.04 (F)(2) sets forth a non-exclusive list of factors to be considered in determining if shared parenting is appropriate. The factors to be considered concern the past, present, and future, and are principally factual in nature.

Section 3109.04(F)(1) directs courts to weigh the best-interest factors when choosing a residential parent; the choice is within the trial court’s discretion when supported by competent and credible evidence, even if either parent would be suitable.

Thomas v. Thomas, Unpublished Decision (11-25-2003) · filed 2003-11-25(F)(1)

Evaluating the R.C. 3109.04 (F)(1) factors in light of the evidence reveals the following. Both parents wished to be named McKaylie's residential parent. ... After examining the evidence, we conclude the trial court acted within its discretion in naming appellee as McKaylie's residential parent. ... While either parent would have made a suitable residential parent, because competent and credible evidence exists to support the court's decision, we must overrule appellant's assignment of error.

Section 3109.04(F)(1) requires a court deciding a child’s best interests to weigh all relevant factors, including the factors the statute lists.

In Re S.G., Unpublished Decision (1-16-2003) · filed 2003-01-16(F)(1)

R.C. 3109.04 (F)(1) not only mandates the juvenile court weigh all relevant factors, but lists several that must be considered.

Section 3109.04(F)(1) permits a court deciding a child’s best interests to consider relevant factors beyond those listed in the statute.

Francis v. Francis, Unpublished Decision (4-18-2003) · filed 2003-04-18(F)(1)

However, a trial court is not limited to the listed factors in R.C. 3109.04 (F) but may consider any other relevant factors.

Section 3109.04 makes the child’s best interest the standard for deciding custody.

Stout v. Korosy, Unpublished Decision (6-9-2003) · filed 2003-06-09

Under R.C. 3109.04 the standard to be applied in child custody cases is the best interest of the child.

Section 3109.04(F)(1) directs courts reallocating parental rights after a change in circumstances to consider its enumerated best-interest factors; findings on each relevant factor supported by competent, credible evidence sustain the decision.

Brenneman v. Brenneman, Unpublished Decision (5-24-2002) · filed 2002-05-24(F)(1)

When such a change occurs, R.C. 3109.04 (F)(1) directs a court to specifically consider ten enumerated factors in determining the best interests of the child when crafting a reallocation of parental rights. Here, the trial court's judgment entry contains findings of fact going to each of the relevant enumerated factors. The record contains competent, credible evidence to support these findings.

Section 3109.04(B)(1) makes the child’s best interest the primary concern when a court initially allocates parental rights and responsibilities.

Doerman v. Doerman, Unpublished Decision (6-24-2002) · filed 2002-06-24(B)(1)

When making an initial allocation of parental rights and responsibilities, the primary concern of the trial court is the children's best interest. R.C. 3109.04 (B)(1).

Section 3109.04(F)(1) provides a nonexclusive list of factors for determining a child’s best interests, with no listed factor given more weight than the others.

Riggle v. Riggle, Unpublished Decision (10-16-2002) · filed 2002-10-16(F)(1)

R.C. 3109.04 (F)(1) sets forth a nonexclusive list of relevant factors the trial court is to consider when determining a child's best interests. We note that no one of these factors is to be given more weight than the others.

Section 3109.04 makes the child’s best interests the standard for deciding custody.

Korosy v. Barker, Unpublished Decision (11-4-2002) · filed 2002-11-04

Under R.C. § 3109.04 the standard to be applied in child custody cases is the best interest of the child.

Section 3109.04(B)(1) requires a court choosing a residential or custodial parent to determine the children's best interests.

Saltzman v. Saltzman, Unpublished Decision (11-27-2002) · filed 2002-11-27(B)(1)

In determining which parent shall be named residential or custodial parent, the trial court must determine what is in the best interest of the children.

Section 3109.04(F)(1) requires consideration of all relevant best-interest factors; no single listed factor compels a custody award.

Bonar v. Boggs, Unpublished Decision (12-20-2002) · filed 2002-12-20(F)(1)

There is no single factor listed in R.C. § 3109.04 (F)(1) that, if found, would compel the trial court to award custody of Brittany to one or the other of the parties. Appellee's convictions for domestic violence and child endangerment obviously should be significant factors in the court's decision, but they were not the only factors for the court to consider.

Section 3109.04(B)(1) makes the child's best interest the primary concern in an initial allocation of parental rights and responsibilities.

Hayman v. Hayman, Unpublished Decision (1-13-2003) · filed 2003-01-13(B)(1)

The trial court's primary concern is a child's best interest when making an initial allocation of parental rights and responsibilities. R.C. 3109.04 (B)(1).

Section 3109.04 makes the child's best interests the sole consideration in deciding custody.

McVay v. McVay · filed 1974-12-10

Both Civil Rule 75 (P) and R. C. 3109.04 provide that the only consideration that a trial court should take in making his decision as to the custody of a minor child is the best interests of such child.

Section 3109.04(C) requires a court deciding a child’s best interests to consider all relevant factors, including factors beyond the five listed in the statute.

Ross v. Ross · filed 1980-12-23(C)

In determining the best interests of the child, the court considering a custody matter is instructed to consider all relevant factors, including the five listed in R. C. 3109.04(C).

Section 3109.04(C) requires a custody court to consider all factors relevant to the child’s best interests.

Pater v. Pater · filed 1992-04-15(C)

The statutory standard is written broadly and requires the domestic relations judge to consider all factors that are relevant to the best interests of the child.

Section 3109.04 makes the child’s best interest the sole factor in custody proceedings under that section, without a separate parental suitability requirement.

Reynolds v. Goll · filed 1992-05-13

While we now agree, in accordance with Boyer, that the “best interest” test is the only factor for the court to consider in R.C. 3109.04 proceedings, this does not mean that it is also the sole test under R.C. 2151.23(A)(2).

Section 3109.04(F)(1) makes the child's best interest the main concern in allocating parental rights and requires consideration of nonexclusive statutory factors.

Helms v. Helms, Unpublished Decision (4-1-1998) · filed 1998-04-01(F)(1)

When a trial court allocates parental rights and responsibilities, the main concern is "the best interest of [the] child." R.C. 3109.04 (F)(1). The factors that the court must consider include, but are not limited to, the wishes of the parents; a child's interaction with the parents and others; the mental health of all persons concerned; the child's adjustment to home and school; which parent is more likely to honor the visitation and companionship rights of the other parent; whether either parent has failed to pay child support; and whether either parent has been convicted of abusing or neglecting children. R.C. 3109.04 (F)(1)(a), (c)-(h).

Section 3109.04(F)(1) requires a court allocating custody to consider the relevant factors bearing on the child's best interest.

Louderback v. Louderback, Unpublished Decision (3-1-1999) · filed 1999-03-01(F)(1)

Further, we find that the trial court did consider the relevant factors in R.C. 3109.04 (F) and did not abuse its discretion when it found that Johnda's best interest was served by making Louderback the residential parent.

Section 3109.04(F)(1) requires a custody court to consider all relevant best-interest factors, and its judgment must contain sufficient findings to show that it did so.

Matter of Steven M. v. Robin D., Unpublished Decision (3-12-1999) · filed 1999-03-12(F)(1)

Furthermore, the trial court's judgment contains insufficient findings to indicate that the trial court properly considered all the required factors under R.C. 3109.04 (F)(1) in determining that it was in the best interest for appellee to remain the residential parent.

Section 3109.04(F)(1) requires courts to consider all relevant best-interest factors without treating any single factor as controlling.

Leininger v. Leininger, Unpublished Decision (4-9-1998) · filed 1998-04-09(F)(1)

Subsection (F)(1) sets forth certain factors to be considered by the trial court in determining the best interest of the child. Said statute instructs the trial court to consider all relevant factors; it does not require nor suggest that one factor is to be controlling.

Section 3109.04(F)(1) requires a court allocating parental rights to consider all relevant factors bearing on the child's best interest.

Whitt v. Whitt, Unpublished Decision (12-24-1998) · filed 1998-12-24(F)(1)

As demonstrated supra , the trial court considered each factor set forth in R.C. 3109.04 (F).

Section 3109.04(F)(1) requires consideration of relevant best-interest factors in a custody decision, and an award may stand when the record supplies sufficient evidence on those factors.

Kay F. v. Raymond D., Unpublished Decision (2-5-1999) · filed 1999-02-05(F)(1)

In addition to the three factors indicated by appellant, we find that the trial court had ample evidence concerning each of the other factors listed in R.C. 3109.04 (F). Moreover, based upon a thorough review of the record, we find that the trial court did not abuse its discretion in determining that the child's best interest would be to live with appellee.

Section 3109.04 requires a trial court determining custody of minor children to consider the guidelines in subsections (A) through (H).

Moran v. Moran, Unpublished Decision (5-19-1998) · filed 1998-05-19

When determining the custody of minor children, a trial court must consider the guidelines set forth in R.C. 3109.04 (A) through (H).

Section 3109.04(B)(1) requires a court allocating parental rights and responsibilities to consider the child’s best interest.

Buchanan v. Buchanan, Unpublished Decision (4-5-1999) · filed 1999-04-05(B)(1)

When making an allocation of parental rights, the trial court must consider the child's best interest. R.C. 3109.04 (B)(1).

Section 3109.04(F)(1) requires a trial judge deciding a custody modification to consider the statutory best-interest factors.

Basinger v. Basinger, Unpublished Decision (4-30-1999) · filed 1999-04-30(F)(1)

The best interests standard requires a trial judge to consider the factors set forth in R.C. 3109.04 (F)(1).

Section 3109.04(B)(1) makes the child’s best interest the paramount consideration when a court awards custody.

Trent v. Trent, Unpublished Decision (5-10-1999) · filed 1999-05-10(B)(1)

Under R.C. 3109.04 (B)(1), a domestic relations court decides to whom the care, custody, and control of a minor child shall be awarded, giving paramount consideration to the best interest of the child.

Section 3109.04(F)(1) directs courts to consider the relevant best-interest factors when allocating parental rights and responsibilities.

Partridge v. Partridge, Unpublished Decision (8-27-1999) · filed 1999-08-27(F)(1)

We find that the trial court did consider the relevant factors under R.C. § 3109.04 (F) and did not abuse its discretion when it found that the children's best interests would be served by naming Julie as the residential parent.

Section 3109.04(F)(1) requires a court determining a child’s best interests to consider the applicable statutory factors.

In Re Sidney J., Unpublished Decision (9-30-1999) · filed 1999-09-30(F)(1)

To determine the best interest of a child, the trial court must consider any applicable factors listed in R.C. 3109.04 (F)(1)(a)-(j).

Section 3109.04(F) directs courts to consider the listed best-interest factors when deciding how to allocate parental rights and whether to adopt shared parenting.

Hammond v. Hammond, Unpublished Decision (11-12-1999) · filed 1999-11-12(F)

R.C. 3109.04 (F) sets out the factors a trial court should consider when determining the best interest of a child, including: the wishes of the parents, the wishes of the child, the child's interaction with parents and others, the child's adjustment to school and community, the mental and physical health of the parties, the parent more likely to honor visitation rights, any child support arrearage, any conviction of parents, any denial of visitation rights, residence outside Ohio, the ability of parents to cooperate and make joint decisions, the ability of parties to encourage love and contact between the child and the other parent, any history of child or spouse abuse, and geographic proximity. In this case, the trial court went through each of the statutory factors and came to the conclusion that establishing appellee as the residential parent was in the children's best interest.

Section 3109.04(F)(1) requires a court deciding a child’s best interest in a custody modification to consider several factors, rather than only the child’s wishes.

Foltz v. Foltz, Unpublished Decision (4-12-1999) · filed 1999-04-12(F)(1)

However, R.C. 3109.04 (F)(1) requires a trial court to consider several factors, not just the child's wishes.

Section 3109.04(F)(1) requires consideration of relevant best-interest factors, but a court need not expressly discuss every factor when the record contains evidence concerning each one.

Wofter v. Wofter, Unpublished Decision (6-4-1999) · filed 1999-06-04(F)(1)

Even if we found the trial court did not address all of the factors contained in R.C. 3109.04 (F)(1), other courts have held that " '[w]here there is evidence before the court on each factor of R.C. 3109.04 (F), this court will not hold that the trial court did not consider all of those factors merely because it did not discuss each and every factor in its decision.' " Bauer v. Bauer (Feb. 14, 1997), Wood App. No. WD-96-025, unreported, at 15, citing Whiteman v. Whiteman (Jan. 27, 1995), Wood App. No. WD-94-086, unreported, at 1. In the case sub judice, there is evidence contained in the record as it relates to each factor. Accordingly, having found the magistrate discussed each factor contained in R.C. 3109.04 (F)(1), in addition to the fact that the record contains evidence concerning each factor, we find the trial court did not abuse its discretion in addressing the factors contained in R.C. 3109.04 (F)(1).

Section 3109.04(F)(1) requires consideration of the relevant best-interest factors when allocating parental rights; a court need not discuss every factor individually if the record contains evidence on each one.

Wofter v. Wofter, Unpublished Decision (6-16-1999) · filed 1999-06-16(F)(1)

Even if we found the trial court did not address all of the factors contained in R.C. 3109.04 (F)(1), other courts have held that " '[w]here there is evidence before the court on each factor of R.C. 3109.04 (F), this court will not hold that the trial court did not consider all of those factors merely because it did not discuss each and every factor in its decision.' " Bauer v. Bauer (Feb. 14, 1997), Wood App. No. WD-96-025, unreported, at 15, citing Whiteman v. Whiteman (Jan. 27, 1995), Wood App. No. WD-94-086, unreported, at 1. In the case sub judice, there is evidence contained in the record as it relates to each factor. Accordingly, having found the magistrate discussed each factor contained in R.C. 3109.04 (F)(1), in addition to the fact that the record contains evidence concerning each factor, we find the trial court did not abuse its discretion in addressing the factors contained in R.C. 3109.04 (F)(1).

Section 3109.04(F)(1) requires a court allocating parental rights and responsibilities to consider all relevant best-interest factors, including the ten factors listed in the statute.

Fisher v. Fisher, Unpublished Decision (6-18-1999) · filed 1999-06-18(F)(1)

Division (F)(1) of R.C. 3109.04 provides that a trial court must consider all relevant factors, including but not limited to the ten specific factors set forth in R.C. 3109.04 (F)(1)(a) through (j).

Section 3109.04(F)(1) requires the court to consider factors bearing on a child’s best interest when allocating parental rights and responsibilities.

Lane v. Lane, Unpublished Decision (9-20-1999) · filed 1999-09-20(F)(1)

Pursuant to R.C. 3109.04 (F)(1), the trial court is to consider certain factors in determining the best interest of a child when allocating parental rights and responsibilities for the care of the child.

Section 3109.04(F)(1) requires a court allocating parental rights and responsibilities to consider the statutory factors bearing on the child’s best interest.

Morris v. Morris, Unpublished Decision (1-31-2000) · filed 2000-01-31(F)(1)

R.C. 3109.04 (F)(1) sets forth the factors a trial court is to consider in determining the best interest of a child when allocating parental rights and responsibilities for the care of a child.

Section 3109.04(F)(1) lists factors courts consider when determining a child’s best interest in a custody dispute.

Jefferson Cty. Child Sup. Enf. v. Parsons, Unpublished Decision (4-7-2000) · filed 2000-04-07(F)(1)

R.C. 3109.04 (F)(1) lists factors to consider when determining the best interest of a child. ... The juvenile court analyzed all of the relevant factors in reaching the conclusion that it is in Samantha's best interest that custody be awarded to appellee.

Section 3109.04(F)(1) requires courts selecting a residential parent to consider the listed factors bearing on the child’s best interest.

West v. West, Unpublished Decision (4-10-2000) · filed 2000-04-10(F)(1)

The evidence indicates that the magistrate and the trial court considered the factors listed in R.C. 3109.04 (F)(1) to determine which parent should be named as Eric's residential parent.

Section 3109.04(F)(1) requires consideration of all relevant best-interest factors, but a custody court need not expressly state that it considered the listed factors when the record contains relevant evidence and there is no evidence to the contrary.

Verbic v. Verbic, Unpublished Decision (4-28-2000) · filed 2000-04-28(F)(1)

In the present case, the trial court was presented with substantial evidence relevant to the foregoing factors. While the trial court did not specifically state that it had considered these factors in reaching its determination, we must presume, in the absence of evidence to the contrary, that the court followed the law and considered these factors.

Section 3109.04’s best interest test applies to a custody change following a finding that a parent forfeited custodial rights; without that finding, a probate court need not apply the test when terminating a guardianship.

In the Matter of Joles, Unpublished Decision (6-30-2000) · filed 2000-06-30

If the probate court had elected to make such a finding, then we would agree that the best interest test would have been triggered under the authority of the Supreme Court of Ohio's decision in Masitto . The probate court, however, did not determine that appellee had forfeited her custodial rights as a parent. Thus, the probate court was under no duty to apply the best interest test of R.C. 3109.04 .

Section 3109.04(F)(1) requires consideration of all relevant factors in determining a child’s best interest when allocating parental rights and responsibilities.

Seeling v. Seeling, Unpublished Decision (12-27-1999) · filed 1999-12-27(F)(1)

In determining the best interest of the children, the trial court is guided by R.C. 3109.04 (F)(1), which provides, in relevant part: ... the court shall consider all relevant factors, including, but not limited to: ... These are factual issues on which the trial court is permitted wide discretion, and the trial court's resolution of these issues is supported by the record.

Section 3109.04(F)(1) requires the court to consider the relevant statutory factors when allocating parental rights and responsibilities.

Beatley v. Block, Unpublished Decision (5-16-2000) · filed 2000-05-16(F)(1)

R.C. 3109.04 (F)(1) sets forth relevant factors which the court is to consider in allocating parental rights and responsibilities. It is apparent from the court's judgment that it considered each of the relevant statutory factors, specifically setting forth its consideration of such factors on page two of the judgment entry.

Section 3109.04(F)(1) requires a court determining a child’s best interest to consider all relevant factors, including the factors listed in the statute.

Anderson v. Anderson, Unpublished Decision (9-29-2000) · filed 2000-09-29(F)(1)

In determining the best interest of children, the court must consider all relevant factors, including, but not limited to, those factors enumerated in R.C. 3109.04 (F)(1).

Section 3109.04(F)(1) permits a court making an initial custody determination to consider relevant best-interest factors beyond those enumerated in the statute, including the likely harm from changing a child’s primary environment.

Swope v. Cooper, Unpublished Decision (11-7-2000) · filed 2000-11-07(F)(1)

Although this is not an enumerated factor, R.C. 3109.04 (F)(1) provides that in determining the best interest of a child, pursuant to R.C. 3109.04 , the court must consider all relevant factors, including, but not limited to, the enumerated factors. Because the trial court has broad discretion in determining what factors are relevant, we find that the trial court did not err in finding this factor to be one relevant factor among many discussed.

Section 3109.04(F)(1) requires consideration of its listed best-interest factors when selecting a child’s residential parent.

Poulton v. Poulton, Unpublished Decision (2-7-2001) · filed 2001-02-07(F)(1)

The evidence indicates that the magistrate and the trial court considered the factors listed in R.C. 3109.04 (F)(1) to determine which parent should be named as the children's residential parent.

Section 3109.04(F)(1) does not require a custody court to address every best-interest factor in its judgment entry.

Wood v. Wood, Unpublished Decision (3-30-2001) · filed 2001-03-30(F)(1)

The trial court need not address every factor in 3109.04(F)(1) in its judgment entry.

Section 3109.04(F)(1) does not require separate findings on each best-interest factor; when the record is silent, the trial court is presumed to have considered the factors.

Doane v. Doane, Unpublished Decision (5-2-2001) · filed 2001-05-02(F)(1)

The statute does not require the court to make independent findings on each of the above-listed factors. While the court does not address each factor, a silent record raises the presumption that a trial court considered the factors.

Section 3109.04(F)(1) directs courts deciding a child’s best interest to consider all relevant factors, including family relationships, adjustment to home, school, and community, interference with visitation, and each parent’s likelihood of facilitating visitation.

In Re Matter of Ottariano, Unpublished Decision (7-16-2001) · filed 2001-07-16(F)(1)

When determining the child's best interest, the court is directed by statute to consider all relevant factors, including the child's relationship with his parents and siblings, his adjustment to his home, school, and community, whether either parent has willfully denied the other parent the right to visitation, and which parent will most likely facilitate visitation. R.C. 3109.04 (F)(1).

Section 3109.04(F)(1) requires courts to consider the relevant best-interest factors when allocating parental rights, but does not require them to address each factor individually in the decision.

Lee v. Lee, Unpublished Decision (8-17-2001) · filed 2001-08-17(F)(1)

While the trial court did not specifically address each factor within R.C. 3109.04 (F), each relevant factor was obviously taken into consideration to render the opinion. This satisfies the statutory requirements for determining the best interests of the children and is well within the trial court's discretion.

Section 3109.04(F)(1) lists nonexhaustive factors for determining a child’s best interest when allocating parental rights.

Tulley v. Tulley, Unpublished Decision (10-12-2001) · filed 2001-10-12(F)(1)

In determining the best interest of a child, the trial court considers all relevant factors listed in R.C. 3109.04 (F)(1); however, the trial court is not limited to those factors.

Section 3109.04 does not require the court to make findings or discuss each factor when the parties have not requested findings of fact and conclusions of law.

Greene v. Greene, Unpublished Decision (10-18-2001) · filed 2001-10-18

Where findings of fact and conclusions of law are not requested by the parties, the statute itself does not require the court to make findings or discuss each of the factors.

Section 3109.04(F)(1) requires a court to consider the listed factors when determining a child's best interest in allocating parental rights.

Layne v. Layne, Unpublished Decision (11-5-2001) · filed 2001-11-05(F)(1)

When ascertaining the child's best interest, the trial court shall consider the factors listed by R.C. 3109.04 (F)(1)(a) — (j).

Section 3109.04(F)(1) requires a court allocating parental rights and responsibilities to consider all relevant factors bearing on the child’s best interest, including the factors the subsection lists.

Henry v. Stutzman, Unpublished Decision (11-13-2001) · filed 2001-11-13(F)(1)

R.C. 2151.23 (F)(1) requires that a juvenile court, when making an initial allocation of parental rights and responsibilities, follow the best interest standard set forth in R.C. 3109.04 (F). The trial court must consider all relevant factors related to the child's best interest, including those factors specifically enumerated in R.C. 3109.04 (F)(1).

Section 3109.04(F)(1) requires consideration of the relevant best-interest factors but does not require a separate written discussion of each factor.

In the Matter of Henthorn, Unpublished Decision (11-28-2001) · filed 2001-11-28(F)(1)

Despite the fact that the trial court failed to discuss the statutory factors in its judgment entry, we cannot say that the court failed to consider those factors in making its decision. There is no requirement that a trial court separately address each factor enumerated in R.C. 3109.04 .

Section 3109.04(F)(1) requires courts to consider a party’s role as primary caretaker in the best interest analysis, even though it is not an enumerated factor.

Mays v. Mays, Unpublished Decision (12-13-2001) · filed 2001-12-13(F)(1)

Additionally, although not an enumerated statutory factor, a party's role as a primary caretaker is a relevant factor that the trial court must consider in the best interest analysis.

Section 3109.04(F)(2) requires a court deciding whether shared parenting serves the children’s best interests to consider all relevant factors, including those in subsections (F)(1) and (F)(2)(a)–(e).

Bernard v. Bernard, Unpublished Decision (1-30-2002) · filed 2002-01-30(F)(2)

When a trial court determines whether a shared parenting plan is in the best interest of the children, it is required to consider all relevant factors including the factors listed in R.C. 3109.04 (F)(1), the factors enumerated under R.C. 3113.215 , and the factors listed in R.C. 3109.04 (F)(2)(a)-(e).

Section 3109.04(F)(1) requires the record in a custody modification case to reflect that the trial court considered at least some of the listed best interest factors before changing the residential parent.

In the Matter of Jeffreys, Unpublished Decision (2-20-2002) · filed 2002-02-20(F)(1)

The record must in some way reflect that the trial court specifically considered at least some of the individual best interests factors found in R.C. § 3109.04 (F)(1) before deciding to overcome this presumption and change custody.

Section 3109.04(F)(1) requires a court deciding custody to evaluate the relevant best-interest factors; a careful evaluation supports the custody award on appeal.

Anderson v. Anderson · filed 2002-03-12(F)(1)

Given the trial court’s careful evaluation of the R.C. 3109.04(F)(1) factors and its appropriate application of the “direct adverse impact” test, there was no abuse of discretion in awarding custody of the children to appellee.

Section 3109.04(F)(1) requires the relevant factors to be addressed in a child custody decision.

In the Matter of Dando, Unpublished Decision (4-30-2002) · filed 2002-04-30(F)(1)

Our review shows that the magistrate clearly conducted a comprehensive review of the evidence and issued a very thorough decision in which each relevant factor under R.C. 3109.04 (F)(1) was fully addressed.

Section 3109.04(F)(1) requires a court modifying parental rights and responsibilities to consider the listed factors when determining the child's best interest.

Ferrell v. Ferrell, Unpublished Decision (6-11-2002) · filed 2002-06-11(F)(1)

When modifying a decree allocating parental rights and responsibilities, the trial court must consider specific factors to determine the best interest of the child, set out in R.C. 3109.04 (F)(1).

Section 3109.04(F)(1) provides a nonexclusive list of factors for determining a child’s best interest, with no listed factor entitled to greater weight than another.

Graves v. Graves, Unpublished Decision (7-24-2002) · filed 2002-07-24(F)(1)

However, R.C. 3109.04 (F)(1) only provides a list of some of the factors that are to be considered when determining what is in the best interest of the children. No one of the factors listed in R.C. 3109.04 (F)(1) is to be given more weight than the others.

Section 3109.04(F)(1) requires consideration of the relevant best-interest factors when deciding whether to modify custody.

Truax v. Regal, Unpublished Decision (9-18-2002) · filed 2002-09-18(F)(1)

A review of the record reveals that the lower court properly considered the factors under R.C. 3109.04 (F)(1).

Section 3109.04(F)(1) requires courts deciding custody to consider all relevant best-interest factors, including child-support arrears and a parent’s out-of-state residence.

Syslo v. Syslo, Unpublished Decision (9-30-2002) · filed 2002-09-30(F)(1)

From our review, it is clear that the trial court considered all of the relevant factors set forth in R.C. 3109.04 (F)(1) in determining the best interest of Grant and in awarding his custody to appellee. ... In addition, appellant's failure to pay child support resulting in a substantial arrearage and the fact that he lives in Florida are both factors supporting an award of custody to appellee. Accordingly, we cannot say that the trial court erred in awarding custody of Grant to appellee and the fifth assignment of error is not well-taken.

Section 3109.04(F)(1) permits a court assessing a child’s best interest to consider a parent’s housing instability and economic dependence on a live-in partner.

In the Matter of Meyer, Unpublished Decision (1-13-2003) · filed 2003-01-13(F)(1)

While the trial court noted that appellant had been involved with several different men over the years, it did so not to pass moral judgment on her, as appellant argues, but rather, to demonstrate the instability of her domestic life, particularly, her housing situation. These were relevant factors for the trial court to consider in determining the best interests of the parties' child, pursuant to R.C. 3109.04 (F)(1). This was especially true in light of the fact that appellant appears to be currently relying on her boyfriend as her sole means of economic support.

Section 3109.04(F)(1) requires consideration of its best-interest factors when allocating parental rights and responsibilities.

Barnett-Soto v. Soto, Unpublished Decision (2-5-2003) · filed 2003-02-05(F)(1)

After an independent review of the record, we find that the trial court considered the factors listed in R.C. 3109.04 (F)(1) upon allocating parental rights and responsibilities to Appellee.

Section 3109.04(F)(1) requires consideration of its listed factors when determining a child’s best interest for a residential-parent designation.

Lowry v. Lowry, Unpublished Decision (4-24-2003) · filed 2003-04-24(F)(1)

In the instant action, a review of the magistrate's Findings of Fact reveals the magistrate did, in fact, consider the factors enumerated in R.C. 3109.04 (F)(1) in determining it would be in Kody's best interest for father to be designated the residential parent.

Section 3109.04(F)(2) does not require explicit discussion of every shared-parenting best-interest factor when the parents’ inability to cooperate is the overriding reason to reject shared parenting.

Ketchum v. Ketchum, Unpublished Decision (5-16-2003) · filed 2003-05-16(F)(2)

It is obvious that the trial court accepted the parties' inability to cooperate as the overriding factor in rejecting the shared parenting agreement. Any further discussion of other best interest factors would have been superfluous.

Section 3109.04(F)(1) requires courts to consider all relevant factors when determining a child’s best interest in a custody dispute.

Simmons v. Willett, Unpublished Decision (7-8-2003) · filed 2003-07-08(F)(1)

In determining the best interest of a child in custody matters, R.C. 3109.04 (F)(1) directs that " * * * the court shall consider all relevant factors, including, but not limited to: ... This case patently presents a scenario in which both parties face a number of potential hurdles in attaining successful parenting roles. However, it is at least apparent that appellee, notwithstanding the specter of future mental health complications, is presently in a position of having a stable support network to buttress his custodial role. Our review of the cold transcript in the matter sub judice does not indicate that this is a case in which appellate reversal would be warranted against the trier of fact who observed the proceedings firsthand.

Section 3109.04(F)(1) requires consideration of all relevant best-interest factors, but the trial court need not separately address and list each factor.

Rex v. Conner, Unpublished Decision (8-28-2003) · filed 2003-08-28(F)(1)

Finally, "there is no requirement that a trial court separately address and list each factor contained in R.C. 3109.04 * * *." In Re: Erin Petrella (May 8, 1997), Cuyahoga App. No. 70914. We cannot say the trial court failed to properly consider all the relevant factors under R.C. 3109.04 in rendering its decision.

Section 3109.04(F)(1) does not make a parent’s ability to put a child on the school bus or prepare breakfast at home a significant best-interest factor.

Wiesman v. Wiesman, Unpublished Decision (12-8-2003) · filed 2003-12-08(F)(1)

When determining the custody of the child, whether a parent can place the child on the school bus in the morning or prepare a breakfast at home is not a significant factor under R.C. 3109.04 . Therefore, the trial court does not abuse its discretion in failing to give that factor as much weight as other relevant factors listed in R.C. 3109.04 .

Section 3109.04(F)(1) requires consideration of its listed best-interest factors in a custody decision.

Calhoun-Brannon v. Brannon, Unpublished Decision (12-31-2003) · filed 2003-12-31(F)(1)

Our own review of the decision also shows that, as it relates to the question of custody, the magistrate fully complied with the requirements of Civ.R. 53 and R.C. 3109.04 (F)(1).

When evidence concerns the best-interest factors in § 3109.04(F)(1), the trial court resolves factual disputes and weighs witness testimony and credibility.

Tallman v. Tallman, Unpublished Decision (2-27-2004) · filed 2004-02-27(F)(1)

Moreover, when a trial court is presented with evidence on the factors listed in R.C. 3109.04 (F), it is the trial court's role to resolve factual disputes and weigh the testimony and credibility of witnesses.

Section 3109.04(F)(1) requires consideration of the applicable best-interest factors when allocating parental rights and responsibilities.

Goodrich v. Larrick, Unpublished Decision (1-21-2005) · filed 2005-01-21(F)(1)

We agree with Appellee that subsections (b), (e), (g), (h), (i) and (j) of R.C. 3109.04 (F)(1) are inapplicable to the facts presented. {¶ 28} In examining the magistrate's decision, which the court adopted, we find that each of the applicable factors of R.C. 3109.04 were examined in detail.

Section 3109.04(F)(1) requires consideration of the relevant best interest factors when allocating parental rights and responsibilities, even if the court gives considerable weight to one psychological report.

Wilkerson v. Wilkerson, Unpublished Decision (3-21-2005) · filed 2005-03-21(F)(1)

Although the magistrate did give considerable weight to Dr. Michael Hartings' report in making the best interest determination, the magistrate also considered the appropriate factors as required by R.C. 3109.04 (F)(1), and competent, credible evidence supports the magistrate's findings.

Section 3109.04(F)(1) requires consideration of its listed best-interest factors but permits a court to consider other relevant circumstances when allocating custody.

Shaffer v. Shaffer, Unpublished Decision (8-1-2005) · filed 2005-08-01(F)(1)

Although Sarah contends that the trial court did not consider the criteria of R.C. 3109.04 (F)(1), the court made clear that the criteria were considered, but that the court found there were overriding reasons, apart from the specifically enumerated factors, that were integral in determining custody of Justin Jr. We find that this was within the court's discretion as R.C. 3109.04 (F)(1) specifically states that the court is not limited to the factors contained in the statute in determining the best interest of a child.

Section 3109.04(F)(2) requires a court deciding shared parenting to consider the child’s best interests, but the court need not set out its analysis of each listed factor.

Vujovic v. Vujovic, Unpublished Decision (8-3-2005) · filed 2005-08-03(F)(2)

Although it is not necessary for the trial court to set forth its analysis as to each factor listed in R.C. 3109.04 (F)(2), see Bunten v. Bunten (1998), 126 Ohio App.3d 443 , 447 , a trial court is required to find that it considered the best interests of the children.

Section 3109.04(F)(1) requires the trial court to consider its custody factors, but the court need not expressly recite each factor.

Caldas v. Caldas, Unpublished Decision (8-19-2005) · filed 2005-08-19(F)(1)

Although the factors in R.C. 3109.04 (F)(1) must be considered, we have consistently said that the trial court does not have to specifically recite each factor.

Section 3109.04(F)(2) allows a court assessing shared parenting to consider where a child will spend time during the day and whether a parent can provide that care.

In Re Russo, Unpublished Decision (8-26-2005) · filed 2005-08-26(F)(2)

Where the child spent her time during the day was a relevant factor requiring the trial court's consideration.

Section 3109.04(F)(1) requires a court allocating or modifying parental rights and responsibilities to consider the relevant statutory factors in determining the child’s best interest.

In Re Shelton, Unpublished Decision (11-18-2005) · filed 2005-11-18(F)(1)

In allocating or modifying parental rights and responsibilities, the court must review and consider the relevant statutory factors.

Section 3109.04(F)(1) lists nonexhaustive best-interest factors, so a court may consider other relevant factors when deciding custody.

Coe v. Schneider, Unpublished Decision (1-30-2006) · filed 2006-01-30(F)(1)

While R.C. 3109.04 (F) enumerates the factors that a court must consider in determining the child's best interest, the statute plainly indicates that it is not an exhaustive list. Therefore, a court may consider any other factors that it deems relevant.