Ohio Rev. Code Ann. § 3109.04

Section 3109.04(E)(1)(a) requires a court considering reallocation of parental rights to assess a change in circumstances, the child’s best interest, and whether the benefits of changing the child’s environment outweigh the harm.

G.P. v. L.P. · filed 2022-04-25(E)(1)(a)

Therefore, in determining whether to make a modification, a trial court must consider (1) whether a change in circumstances has occurred, (2) whether a modification is in the child's best interest, and (3) whether the benefits that result from the change of environment outweigh any harm.

Section 3109.04(E)(1)(a) requires changed circumstances, a finding that modification serves the child’s best interest, and advantages outweighing likely harm before custody may be modified.

In re J.C. · filed 2022-09-22(E)(1)(a)

A party must demonstrate the existence of changed circumstances; that modification is in the child’s best interest; and that the advantages of granting the modification outweigh any harm likely to be caused by the change.

Section 3109.04(E)(1)(a) permits modification of a prior parental-rights decree only upon a qualifying change in circumstances and a finding that modification serves the child’s best interest.

In re A.Z. · filed 2022-11-04(E)(1)(a)

As pertinent here, R.C. 3109.04(E)(1)(a) states that: The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, 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.

Section 3109.04(E)(1)(a) permits a change of residential parent only if circumstances have changed, the modification serves the child's best interest, and its advantages outweigh the likely harm.

In re L.E. · filed 2022-11-07(E)(1)(a)

Thus, in order for the trial court to modify the residential parent, the court must find that (1) there is a change in circumstances, (2) the modification serves the best interest of the child, and (3) the harm resulting from a modification is outweighed by the advantages of such a modification.

Section 3109.04(E)(1)(a) permits modification of a parental-rights decree only upon a sufficient change in circumstances and a finding that modification serves the child’s best interest.

In re Robinson v. Rehfus · filed 2022-12-22(E)(1)(a)

Pursuant to R.C. 3109.04, the court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds a sufficient change in circumstances has occurred and the modification is necessary to serve the best interest of the child.

Section 3109.04(E)(1)(a) requires a substantive change in circumstances before a court may modify a prior custody allocation.

S.P. v. M.G. · filed 2023-06-23(E)(1)(a)

Based upon the record before us, we find no abuse of discretion in the trial court’s determination that Father had failed to present evidence of a change in circumstances sufficient to warrant a change in custody.

Section 3109.04(E)(1) does not require a court to expressly state that it applied the change-in-circumstances requirement when its findings support that requirement and the correct standard would not change the outcome.

In re E.H. · filed 2023-02-17(E)(1)

We find no manifest injustice in the trial court’s failure to explicitly state that it was applying the change in circumstances requirement of R.C. 3109.04(E) in modifying the custody agreement, nor is there evidence in the record to suggest that, had the trial court cited the correct standard, the outcome of the proceedings would have differed.

Section 3109.04(E)(1)(a) requires proof of a change in circumstances before a court may modify a prior allocation of parental rights and responsibilities.

S.M. v. N.G. · filed 2023-08-17(E)(1)(a)

Because the record supports the juvenile court’s finding that appellant has not met his burden of establishing, pursuant to R.C. 3109.04(E)(1)(a), a change of circumstances, the juvenile court did not err in overruling appellant’s objections to the magistrate’s decision.

Section 3109.04(E)(1)(a) permits modification of a parental rights decree only upon a change in circumstances since the prior decree or based on previously unknown facts, and when modification serves the child’s best interest.

Lambert v. Clark · filed 2023-11-22(E)(1)(a)

Pursuant to R.C. 3109.04(E)(1)(a), the trial court could modify that decree allocating parental rights and responsibilities if: (1) it had found a change of circumstances based on facts arising since the August 2019 decree (or that were unknown to the court at the time of the August 2019 joint entry); and (2) the modification was necessary to serve the best interest of the child.

After an initial custody award to a nonparent, a later request to reallocate parental rights is governed by the change-of-circumstances and best-interest test, without a new parental-unsuitability determination.

Hunter v. Hunter · filed 2023-09-15(E)(1)(a)

Although the natural parents’ interest in raising their children is the paramount concern in an original custody determination involving a non-parent, any subsequent action to reallocate parental rights is governed exclusively by the change of circumstances/best interest test in R.C. 3109.04(E)(1)(a).

Section 3109.04(E)(1)(a)(iii) permits a change of residential parent despite the new parent’s faults when the change serves the child’s best interest and its advantages outweigh the likely harm.

In re J.L.C. · filed 2023-11-13(E)(1)(a)(iii)

Also, the statute governing a custody change, R.C. 3109.04, which the juvenile court applied, implicitly acknowledges that a court may award custody to a parent who, like Father, has faults. The statute provides that the juvenile court may change a child's residential parent if it finds that the change is in the child's best interest and that "[t]he harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child." R.C. 3109.04(E)(1)(a)(iii). Here, the juvenile court determined the potential harm that might come from Jonathan residing with Father was outweighed by the harm to Jonathan caused by Mother.

Section 3109.04(E)(1)(a) does not require a court to analyze the child’s best interest when it finds no change in circumstances warranting modification of custody.

Q.A.-E v. S.G · filed 2023-11-30(E)(1)(a)

As previously stated, a court does not need to proceed with an analysis of the child’s best interest if it finds there is no change in circumstances.

Section 3109.04(E)(1)(a) allows a custody modification only when the modification serves the child’s best interest, even if circumstances have changed.

Nesser v. Mason · filed 2023-12-04(E)(1)(a)

While Mother complains the trial court did not make a specific finding as to whether there had been a change in circumstances, it is well established that even if a change in circumstances is established, a trial court can only modify the allocation of parental rights if the modification is necessary to serve the best interest of the child.

Section 3109.04(E)(1)(a) permits modification of parental rights only when circumstances have changed, modification serves the child’s best interest, and its benefits outweigh the harm.

In re S.N.A.-K. · filed 2024-09-12(E)(1)(a)

In other words, the juvenile court may modify the allocation of parental rights and responsibilities if it finds (1) there was a change in circumstances since the last decree; (2) modification is necessary to serve the best interest of the child; and (3) the harm attendant with modification is outweighed by the advantages of an environment change.

A court may modify custody when supported findings show changed circumstances and that modification serves the child’s best interests; interference with the other parent’s visitation can support the change-of-circumstances finding.

In re A.I.H. · filed 2024-09-12(E)(1)(a)

Here, the court expressly found that “a change in circumstances has occurred in the child’s life, the child’s residential parent, and that a modification is necessary to serve the best interests of the child.” ... Furthermore, we do not find that the juvenile court abused its discretion when it granted Father’s Motion to Modify because its findings are supported by evidence in the record.

Section 3109.04(E)(1)(a) requires a material change in circumstances before a court considers whether modifying a custody decree serves the child’s best interest.

Stults v. Hale · filed 2024-11-12(E)(1)(a)

When reviewing whether a modification of a prior decree allocating parental rights and responsibilities is appropriate under R.C. 3109.04, a trial court must go through a two-step analysis. ... Only if the trial court finds a qualifying change has occurred does the trial court then consider whether the modification of the prior decree is in the best interest of the child.

Section 3109.04(E)(1)(a) requires a change in the circumstances of the child or residential parent before a prior custody decree may be modified; improvement in the noncustodial parent’s circumstances does not qualify.

Lafferty v. Houghtland · filed 2024-12-02(E)(1)(a)

Revised Code 3109.04(E)(1)(a) indicates that a trial court shall not modify a prior custody decree unless a “change has occurred in the circumstances of the child, [or] the child’s residential parent[.]”

Section 3109.04(B)(1) authorizes a court to modify a prior parental rights order based on the children’s best interest.

Marshall v. Marshall · filed 2025-09-19(B)(1)

Additionally, R.C. 3109.04(B)(1) specifically granted the trial court power and authority to modify a prior order based on the best interest of the children.

Section 3109.04(E)(1)(a) requires a relevant change in circumstances before a court may modify an existing order allocating parental rights and responsibilities.

In re Williams · filed 2025-12-05(E)(1)(a)

The statute does not permit modification of an existing order absent a change in the circumstances of the child or the residential parent.

Section 3109.04(E)(1)(a)(iii) permits modification of a prior allocation of parental rights and responsibilities when circumstances have changed, modification serves the child’s best interest, and its advantages outweigh the likely harm from changing the child’s environment.

L.G. v. R.G. · filed 2026-01-29(E)(1)(a)(iii)

Because Father established that there was a change of circumstances since the November 15, 2019 A.J.E., that it was in the best interest of the children to modify parental rights and responsibilities, and the advantages of the change outweighed the harm, we find that the trial court did not abuse its discretion by modifying parental rights and responsibilities.

Section 3109.04(E)(1)(a) requires both a change in circumstances and a finding that modification serves the children’s best interest before a custody order may be modified.

Quehl v. Roberts · filed 2025-10-15(E)(1)(a)

In sum, we hold that the evidence sufficiently showed a change in circumstances under R.C. 3109.04(E)(1). But because competent evidence supported the trial court’s finding that modification is not in the children’s best interest, the trial court did not abuse its discretion by sustaining Father’s objections to the magistrate’s decision and denying Mother’s motion to modify the custody order.

When the consent and integration exceptions do not apply, § 3109.04(E)(1)(a) permits custody modification upon findings of changed circumstances, the child’s best interest, and advantages of the new environment outweighing likely harm.

Wilson v. Pettiford · filed 2025-10-27(E)(1)(a)

Accordingly, the trial court here was permitted to modify custody if it made three findings: (1) that a change in circumstances has occurred; (2) that the modification is in the best interest of the child; and (3) that the advantages of the change of environment outweigh any likely harm from the change.

Section 3109.04(E)(1)(a) does not require proof that a change in the child’s environment caused harm before custody can be modified.

In re P.M. · filed 2025-11-12(E)(1)(a)

There is no mention here that a change in the child’s environment must have caused the child harm as mother alleges.

Section 3109.04(E)(1)(a) requires a change in circumstances before a court may consider whether changing the residential parent serves the child’s best interest.

In re I.J. · filed 2026-04-02(E)(1)(a)

Here, the court correctly found, based on In re I.L.J. IV, that Father’s motion was to be reviewed under R.C. 3109.04(E)(1)(a), which first requires a “change in circumstances” before reaching the “best interest” determination under R.C. 3109.04(F)(1), and Mother’s motion was to be reviewed under R.C. 3109.04(E)(2)(b), which only requires the child’s “best interest” determination under R.C. 3109.051(D).

Section 3109.04 governs court awards allocating parental rights and responsibilities, but does not govern a stay pending transfer to a more convenient forum.

In re Dissolution of Hertlein · filed 2026-05-27

First, we note R.C. 3109.04 governs court awards allocating parental rights and responsibilities; it does not address a decision to stay proceedings pending transfer to a more convenient forum.

For an initial allocation of parental rights and responsibilities, § 3109.04(B)(1) requires consideration of the children’s best interests, without a finding that a parent is unfit or that the children would be harmed.

In re A.D. · filed 2026-06-12(B)(1)

The trial court did not commit plain error by awarding Mother legal custody and granting Father parenting time without finding him unfit or finding a potential for harm to the children. Under R.C. 3109.04(B)(1), a trial court making an initial allocation of parental rights and responsibilities “shall take into account that which would be in the best interest of the children.”

Section 3109.04(E) governs modification of custody decrees issued in divorce, separation, annulment, or similar proceedings, rather than juvenile dispositional custody orders after a dependency adjudication.

In re B.B. · filed 2026-04-08(E)

R.C. 3109.04(E) governs only the modification of a prior “decree allocating parental rights and responsibilities for the care of children” issued as part of a divorce, separation, annulment, or similar proceeding.

Section 3109.04(E)(1)(a) requires a change in circumstances and a finding that modification serves the child’s best interest before a court changes custody.

Gillum v. Gillum · filed 2011-05-27(E)(1)(a)

A court must find that a ... “change in circumstances” has occurred and that the modification of the children’s custody arrangement is in the children’s best interest.

Section 3109.04 does not govern modification of an order granting legal custody of children to other custodians; R.C. 2151.42 applies.

Wren v. Hawkins · filed 2021-09-20

Before turning to the specific circumstances of this case, we note that the juvenile court cited R.C. 3109.04 as the controlling law. However, since the Wilcoxes were awarded legal custody of the children, the applicable statute was R.C. 2151.42, which provides: ... Although the juvenile court relied on R.C. 3109.04, it is clear it conducted the appropriate analysis in determining whether there had been a change in circumstances necessary to modify or terminate the prior order.

Section 3109.04(E)(1)(a) requires the court to retain the residential parent named in the prior decree unless circumstances have changed and modification is in the child’s best interest.

In the Matter of Firth, Unpublished Decision (9-27-2002) · filed 2002-09-27(E)(1)(a)

Accordingly, in the present case, the trial court was required to retain appellee as Cassandra's residential parent unless it found a change in circumstances as set out in R.C. 3109.04 (E)(1)(a)(i) through (iii) had arisen since the last decree and a modification was in Cassandra's best interest.

Section 3109.04(E)(1)(a) requires a change in circumstances, a modification necessary for the child’s best interest, and one of the specified grounds for changing the residential parent before a prior custody decree may be modified.

Pickett v. Pickett, Unpublished Decision (6-21-2002) · filed 2002-06-21(E)(1)(a)

Accordingly, in order for a trial court to modify a prior child custody decree, the party requesting the modification must demonstrate the following: (1) a change has occurred in the circumstances of the child, his residential parent, or either of the parents subject to a shared parenting decree; (2) the requested modification is necessary to serve the best interest of the child; and (3) one of the three scenarios described in R.C. 3109.04 (E)(1)(a)(i) through (iii) is applicable.

Section 3109.04(E)(1)(a) allows modification of a parental-rights decree only when circumstances of the child or residential parent have changed and modification is necessary for the child’s best interest.

In the Matter Of: Hann, Unpublished Decision (11-20-1998) · filed 1998-11-20(E)(1)(a)

R.C. 3109.04 (E)(1)(a) states that a decree allocating parental rights shall not be modified unless the trial court concludes from the evidence that a change has occurred in the circumstances of the child or his residential parent, and that the modification is necessary to serve the best interest of the child.

Section 3109.04 requires a change in circumstances, a finding that modification serves the children's best interests, and advantages that outweigh the harm from changing their environment before a court may change the residential parent.

Rathburn v. Rathburn, Unpublished Decision (5-12-1999) · filed 1999-05-12(E)(1)(a)(iii)

Accordingly, three elements must exist in order for the court to properly change the holder of the title of residential parent from mother to father: (1) there must be a change in circumstances; (2) the modification of custody must be in the children's best interests; (3) any harm to the children from moving in with father must be outweighed by the advantages of such a move.

Section 3109.04(E)(1)(a) presumes that the existing residential parent should remain and requires proof by a preponderance of changed circumstances, the child's best interest, and one of three statutory conditions before custody is modified.

Pathan v. Pathan, Unpublished Decision (1-21-2000) · filed 2000-01-21(E)(1)(a)

Thus, R.C. 3109.04 (E)(1)(a) creates a rebuttable presumption that it is in the child's best interest to retain the residential parent as designated by the prior decree. This presumption must be overcome by the trial court's finding, by a preponderance of the evidence, that a change of circumstances has occurred, that modification is in the child's best interest, and that one or more of the three conditions in the statute has been satisfied.

Section 3109.04(E)(1)(a) requires a change in the child’s or residential parent’s circumstances, a finding that changing custody serves the child’s best interest, and a finding that the advantages of the change outweigh its likely harm.

In Re Gerald B. Hughes, II, Unpublished Decision (6-23-2000) · filed 2000-06-23(E)(1)(a)

In order to establish grounds for a change of custody, Hughes was required to demonstrate (1) a change of circumstances in the life of the child or residential parent, (2) that it was in the best interest of the child that a change be made, and (3) that the harm likely to be caused by the change was outweighed by the advantages of such a change. R.C. 3109.04 (E)(1)(a).

Section 3109.04(E)(1)(a)(iii) permits a change of residential parent only when circumstances have changed, the change serves the children’s best interests, and its advantages outweigh the harm from changing their environment.

Helt v. Helt, Unpublished Decision (3-29-2000) · filed 2000-03-29(E)(1)(a)(iii)

Accordingly, three elements must exist in order for the trial court to properly change the holder of the title of residential parent: (1) there must be a change in circumstances; (2) the modification of allocation of parental rights and responsibilities must be in the children's best interests; and, (3) any harm to the children from moving in with the parent requesting the modification must be outweighed by the advantages of such a move.

Section 3109.04(E)(1)(a) creates a rebuttable presumption favoring the existing residential parent, requiring a change of circumstances and a determination that modification is necessary for the child's best interest.

Johnson v. Johnson, Unpublished Decision (8-11-2000) · filed 2000-08-11(E)(1)(a)

The foregoing provisions create a rebuttable presumption in favor of retaining the prior residential parent by requiring not only a showing of a change of circumstances but also a determination that modification is not only desirable but is necessary to serve the best interest of the child.

Section 3109.04 requires a change in circumstances concerning the child or residential parent and a finding that modification serves the child’s best interest before a court modifies a prior allocation of parental rights and responsibilities.

Boyd v. Ison, Unpublished Decision (8-4-2000) · filed 2000-08-04(E)(1)(a)

The trial court correctly stated that under R.C. 3109.04 , a court shall not modify a prior decree allocating parental rights and responsibilities unless it finds that there has been a change of circumstances concerning the child or his residential parent and that the modification is necessary to serve the best interest of the child.

Section 3109.04(E)(1)(a)(iii) allows a change of residential parent when it serves the child’s best interests and the advantages of changing the child’s environment outweigh the likely harm.

Filicky v. Filicky, Unpublished Decision (10-31-2000) · filed 2000-10-31(E)(1)(a)(iii)

Applying the law to the facts in the present case, it appears that the trial court did not abuse its discretion by reallocating parental rights and designating Michael Filicky residential parent. A thorough review of the record shows that Shirley Filicky failed to establish that relocation to Texas was in the best interest of the child, Andrew. The evidence on record shows that any advantage resulting from the change in environment would be outweighed by the harm caused to the child.

Frequent changes of the residential parent’s home that disrupt the children’s school stability can support modifying the allocation of parental rights.

George v. George, Unpublished Decision (11-6-2000) · filed 2000-11-06

We find the record supports the magistrate's primary basis for modifying the allocation of parental rights, i.e. appellant's frequent change of residences which resulted in the children's lack of stability in a school system.

Section 3109.04(E)(1)(a) permits a change of residential parent when circumstances have changed, the change serves the child’s best interest, and its advantages outweigh the likely harm from changing the child’s environment.

Packard v. Packard, Unpublished Decision (11-22-2000) · filed 2000-11-22(E)(1)(a)(iii)

This court cannot conclude that the trial court abused its discretion in determining that there had been a change in circumstances since the divorce, that a change of residential parent was in the children's best interest, and that the harm to the children caused by the change was outweighed by the advantages.

Section 3109.04(E)(1)(a) allows changes in family circumstances to be considered collectively when deciding whether the material change required to modify residential parent status has occurred.

Holcomb v. Holcomb, Unpublished Decision (9-26-2001) · filed 2001-09-26(E)(1)(a)

When these all changes are viewed collectively they constitute a material change, or a "change in substance."

Section 3109.04(E)(1)(a) requires a court considering modification of a prior parental-rights decree to find changed circumstances, that modification serves the child’s best interest, and that one of the listed grounds for changing the residential parent applies.

In Re Surdel, Unpublished Decision (10-3-2001) · filed 2001-10-03(E)(1)(a)

Thus, a modification of a prior decree allocating parental rights and responsibilities is not warranted absent: (1) a change in circumstances; (2) the best interest of the child weighing in favor of such modification; and (3) one of the factors enumerated in R.C. 3109.04 (E)(1)(a)(i)-(iii) being present.

Section 3109.04(E)(1)(a) requires a change in circumstances, a finding that modification serves the child's best interest, and either consensual integration into the proposed residential parent's home or benefits outweighing the harm from changing the child's environment before a court may modify an existing allocation of parental rights.

In the Matter of Cook, Unpublished Decision (2-14-2002) · filed 2002-02-14(E)(1)(a)

In accordance with the statute, the court must find that three elements exist in order to modify the existing allocation of parental rights: (1) a change in circumstances; (2) the modification is in the children's best interest; and, (3) either the children have been integrated into appellee's home with appellant's consent or any harm to the children is outweighed by the advantages of the modification.

Section 3109.04(E)(1)(a) requires a change in the circumstances of the child or residential parent before a court may modify a final custody award.

Kenney v. Kenney, Unpublished Decision (11-26-2001) · filed 2001-11-26(E)(1)(a)

The judgment entry and decree of divorce unambiguously makes an original custody award of Collin to Gibbs and designates her as the residential parent. Therefore, the trial court cannot modify its original custody decision without finding a change of circumstances with regard to Collin or Gibbs, whether proceeding under the domestic relations code or the juvenile code.

Section 3109.04(E)(1)(a) presumes that the residential parent named in a prior decree should remain so unless a significant change of circumstances, the child’s best interest, and advantages outweighing likely harm justify modification.

Averill v. Bradley, Unpublished Decision (12-14-2001) · filed 2001-12-14(E)(1)(a)

First, R.C. 3109.04 (E)(1)(a) creates a presumption in favor of retaining the residential parent designated by the prior decree. The presumption may be overcome by evidence of a change of circumstances and that the change requested is in the child's best interest and will outweigh any harm resulting.

Under a shared parenting plan, both parents are treated as residential parents unless the court orders otherwise.

Shaffer v. Shaffer, Unpublished Decision (9-26-2003) · filed 2003-09-26(K)(6)

According to the foregoing statute, unless the court orders otherwise, both parents are required to be treated as the residential parents under a shared parenting plan.

Under § 3109.04(K)(6), a shared parenting order may designate one parent as the residential parent instead of treating both parents as residential parents.

Lindman v. Lindman, Unpublished Decision (9-6-2005) · filed 2005-09-06(K)(6)

However, R.C. 3109.04 (K)(6) states as follows: "[u]nless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the "residential parent," the "residential parent and legal custodian," or the "custodial parent" of the child." (Emphasis added). ... Like Shaffer, the Shared Parenting Plan in this case expressly provides that appellant is the residential parent. Such plan was approved and adopted by the trial court.

Section 3109.04(E)(1)(a) requires a change in circumstances and a finding that modification serves the child’s best interest before a court changes the designation of residential parent and legal custodian.

Fisher v. Hasenjager · filed 2007-10-25(E)(1)(a)

The statute allows a court to modify a prior decree allocating parental rights and responsibilities only if (1) “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 (2) the modification is in the best interest of the child.

In a shared parenting arrangement, each parent is a residential parent unless the court orders otherwise; the court’s designation controls over the shared parenting plan.

MacMurray v. Mayo, 07ap-38 (12-27-2007) · filed 2007-12-27(K)

Even though the shared parenting plan states both parties are residential parents, the shared parenting plan did not bind the court to reach the same conclusion. Rather, the trial court's express designation in the child support worksheet that plaintiff be the "residential parent and legal custodian" controls. Fisher , supra. See, also, R.C. 3109.04 (K) (providing that each parent in a shared parenting arrangement is the residential parent unless the court's order provides otherwise).

Section 3109.04(E)(1)(a) requires a change in circumstances and a finding that the change serves the child's best interests before a court changes the designated residential parent under a shared parenting plan.

Posey v. Posey, 07ca2968 (2-7-2008) · filed 2008-02-07(E)(1)(a)

Accordingly, in order to modify a shared parenting plan so as to change the designation of the residential parent, a trial court must find that a change in circumstances has occurred and that changing the residential parent would serve the child's best interests.

Section 3109.04(E)(1)(a) governs changes to an order designating the residential parent and legal custodian, even when a party requests termination of a shared parenting plan.

Surgenavic v. Robertshaw-Surgenavic, 08 Ma 29 (3-5-2009) · filed 2009-03-05(E)(1)(a)

Although Appellee requested "termination" of the shared parenting plan, R.C. 3109.04 (E)(2)(c) is not applicable in this case. The Ohio Supreme Court, in Fisher v. Hasenjager , 116 Ohio St.3d 53 , 2007-Ohio-5589 , 876 N.E.2d 546 , recently recognized that a shared parenting plan is not the vehicle by which a trial court designates a residential parent or legal custodian. Id., ¶ 31. Because the designation of the residential parent and legal custodian involves the allocation of parental rights and responsibilities, "R.C. 3109.04 (E)(1)(a) controls when a court modifies an order designating the residential parent and legal custodian." Id., ¶ 26.

Section 3109.04(F)(1) makes the children's adjustment to home, school, and community a factor in deciding whether to change the residential parent.

Gore v. Gore, Ot-08-015 (5-8-2009) · filed 2009-05-08(F)(1)

In determining parental rights and responsibilities, R.C. 3109.04 (F)(1) sets forth the following factors the trial court should consider in making its determination: ... Concerning the children's adjustment to home, school and community, we agree with the trial court that the children are well-adjusted in Mrs. Cairns' home. ... Based on the testimony, we find that the trial court's denial of Mr. Gore's motion for change in custody was supported by some competent, credible evidence and, therefore, is affirmed.

A court may change the residential-parent designation when the advantage of living near needed medical care outweighs the likely harm of changing the child’s residence.

Sutton v. Sutton · filed 2011-03-25(E)(1)(a)(iii)

Thus, the trial court could properly find that residing in Ohio, closer to the doctors in Cincinnati, is an advantage that outweighs any harm that might be caused by a change of residency.

In a shared parenting arrangement, both parents are residential parents at all times, so the child support worksheet should indicate their shared designation as residential parent and legal custodian.

Chandler v. Chandler · filed 2017-02-27(L)(6)

“[I]n a shared parenting arrangement, neither party is a nonresidential parent. Instead, under R.C. 3109.04[(L)(6)], both parents are considered residential parents at all times.” Pauly v. Pauly, 80 Ohio St.3d 386, 388 (1997). Thus, it appears the magistrate should have checked the box to indicate the parties share the designation of residential parent and legal custodian.

Under subsection (E)(1)(a)(iii), the court retains the residential parent designated in the prior decree when the advantages of changing the child’s environment do not outweigh the likely harm.

N.E. v. J.E. · filed 2017-07-21(E)(1)(a)(iii)

Because mother was expressly designated the residential parent in the trial court’s prior decree, we find that the court properly retained mother’s status as the residential parent as required under R.C. 3109.04(E)(1)(a)(iii).

Changing the designation of residential parent and legal custodian requires a change in circumstances and a finding that modification serves the child’s best interest.

In re G.B. · filed 2017-11-03(E)(1)(a)

In order to modify a designation of residential parent and legal custodian, the court must decide that a “ ‘change in circumstances’ has occurred,” and must also find that “the modification is in the best interest of the child.”

A change in residential parent may be upheld when the advantages of the new environment outweigh the likely harm from the change.

Lucas v. Byers · filed 2020-12-14(E)(1)(a)(iii)

With respect to R.C. 3109.04(E)(1)(a)(iii), the record reveals that the trial court addressed and considered the advantages and disadvantages of leaving the minor child with mother or placing him with father. ... Thus, we cannot say that the trial court abused its discretion when it concluded the harm likely to be caused from the change in environment was outweighed by the advantages.

Section 3109.04(E)(1)(a) permits a change of residential parent only when the change is in the child’s best interest and one of the statutory grounds is met.

Maran v. Clark · filed 2022-09-12(E)(1)(a)

Nonetheless, even if we were to assume that Father did meet his burden, making Father the residential parent still must be in R.M.’s best interest before the change is authorized under the statute. See R.C. 3109.04(E)(1)(a).

When neither parent requests shared parenting by trial, Section 3109.04(A)(1) requires the court to designate one parent as the residential parent.

Anderson-Fye v. Mullinax-Fye · filed 2024-12-19(A)(1)

Further, because by the time of trial neither parent had requested shared parenting, the trial court was not empowered to reward shared parenting and was instead required to designate one parent as the residential parent.

A court retains the residential parent designated in a prior decree unless a change serves the child’s best interest and the advantages of changing the child’s environment outweigh the likely harm.

Douglass v. Raymond · filed 2025-09-30(E)(1)(a)(iii)

However, Father has not argued or demonstrated that the provisions of R.C. 3109.04(E)(1)(a)(iii) were satisfied. As noted above, R.C. 3109.04(E)(1)(a)(iii) states that “the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and . . . [t]he harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.”

Section 3109.04(F)(1)(b) requires consideration of a child’s wishes expressed to the court during an in-chambers interview, rather than preferences relayed to the parties.

Ralich v. Ralich, 2006ca00215 (5-21-2007) · filed 2007-05-21(F)(1)(b)

R.C. 3109.04 (F)(1)(b) requires the trial court to consider the wishes of the child as "expressed to the court" during an in-chambers interview. The trial court did just so. The children may have expressed their preferences to the parties, but such is not what the trial court is mandated to consider.

Section 3109.04(B)(1) requires a court to consider a child’s wishes when allocating parental rights, but those wishes may be outweighed by risks to the child.

Johnson v. Wilson, E-06-065 (7-13-2007) · filed 2007-07-13(B)(1)

R.C. 3109.04 (B)(1) mandates that a trial court take into consideration the wishes of the child in determining what allocation of parental rights is in their best interest. ... Although the children did express a desire to remain living with their mother, the record reveals that the trial court determined those wishes were outweighed by the risks associated with residency with their mother.

A child's election to live with the noncustodial parent constitutes a change in circumstances under § 3109.04(E)(1)(a), but the court must still assess the child's best interest, treating the child's wishes as one factor.

Weisberg v. Sampson, Unpublished Decision (7-14-2006) · filed 2006-07-14(E)(1)(a)

Depending on the age and maturity of the child, a trial court "may properly consider the child's wishes when determining whether a change in circumstances has occurred." Wangugi v. Wangugi (Apr. 12, 2000), 4th Dist. No. 99 CA 2531, 2000 Ohio App. LEXIS 1675, at *12-*13 (citations omitted). "[T]his court has repeatedly held that the election of a child to live with the non-custodial parent constitutes a change under R.C. 3109.04." Schiavone v. Antonelli (Dec. 10, 1993), 11th Dist. No. 92-T-4794, 1993 Ohio App. LEXIS 5891, at *14. Thus, according to this court's precedent, Sampson has demonstrated a change in circumstances. Nevertheless, the child's wishes do not obviate the need to conduct a best interest analysis in which the child's wishes are but one of many factors which the trial court must consider. Id at *16 (citation omitted).

Section 3109.04(F)(1)(b) makes a child’s wishes expressed in chambers one factor in the best-interest determination; considering other factors does not itself show that the wishes received insufficient weight.

Ebinger v. Ebinger, Unpublished Decision (9-7-2004) · filed 2004-09-07(F)(1)(b)

As noted in R.C. 3109.04 (F)(1)(b), the child's wishes, as expressed to the trial court in chambers, is a factor to consider in determining the best interests of the child. We disagree with mother's assertion that the trial court did not properly consider the child's wishes. The trial court specifically indicated in its decision that the child's wishes, as expressed by the child, and the recommendation of the GAL were factors considered. The fact that the trial court listed other factors that it also considered does not translate to a failure to give the child's expressed wishes appropriate weight.

Section 3109.04 treats a child's wishes as one factor in determining the child's best interests, not as controlling.

In Re Bradford, Unpublished Decision (8-8-2002) · filed 2002-08-08(F)(1)(b)

Because children's wishes are not controlling upon the trial court, but are only one among several factors a trial court considers when determining what is in the children's best interests, and in view of the tender age of Cody, the trial court's failure to interview him was harmless. R.C. 3109.04 (F)(1)(a) through (j).

Section 3109.04 requires a court considering a custody change based on a child’s election or preference to weigh all surrounding circumstances and the child’s best interests rather than treat the child’s choice as controlling.

Venable v. Venable · filed 1981-07-09(A), (C)(2)

To determine the best interests of the child in an action where one parent is seeking to modify custody and both parents are deemed to be suitable and fit, the trial court must look to the totality of the circumstances surrounding the change when the child has expressed a preference or election pursuant to R.C. 3109.04.

Section 3109.04(A) makes a child’s choice of parent a factor in the best-interest decision, not a binding choice.

In re Brazell · filed 1986-01-14(A)

Therefore, it is this court’s conclusion of law that the choice of a child made pursuant to R.C. 3109.04(A) is not mandatory and binding on the court, but that it is one of the factors to be considered by the court in making its decision as to what is in the child’s best interest.

Section 3109.04(A) permits a court to deny a child’s choice of custodian when a change would not serve the child’s best interests and its benefits would not outweigh its harm.

Bawidamann v. Bawidamann · filed 1989-08-04(A)

Under R.C. 3109.04(A), the trial court is permitted to deny the wishes of the child when conditions surrounding the custody change indicate it is not in the best interests of the child and the benefits of the custody change would not outweigh the harm caused by such change.

Section 3109.04 makes the child’s best interest paramount in custody decisions, with the child’s preference only one factor to consider.

Thornton v. Thornton · filed 1990-11-15

The paramount consideration in all events is the child’s best interest and therefore the child’s election is only one of the elements to be considered.

Section 3109.04(F)(1) requires consideration of the child's wishes in assessing best interests, but those wishes do not control a change of residential parent when the choice may be harmful or circumstances have not substantially changed.

Bibb v. Bibb, Unpublished Decision (9-1-1999) · filed 1999-09-01(F)(1)

According to R.C. 3109.04 (F)(1) when determining the best interests of the child the court shall consider all relevant factors, including but not limited to: the wishes of the child's parents; the wishes of the child; the child's adjustment to home, school and community. ... The child's wishes are not controlling where other evidence demonstrates that the choice is potentially harmful or if there hasn't been a substantial change in circumstances to support a change of residential parent.

Section 3109.04(F)(1) makes a child's preference one of multiple factors in determining the child's best interest, rather than a controlling factor.

Paden v. Paden, Unpublished Decision (4-26-2000) · filed 2000-04-26(F)(1)

The legislature permits the trial court to consider a child's preference, but mandates that such consideration be only one of many factors.

Section 3109.04(F)(1)(b) requires a court to consider a child’s wishes in some parental-rights determinations, without restricting that consideration to children age eleven or older.

Fallat v. Fisher, Unpublished Decision (12-12-2000) · filed 2000-12-12(F)(1)(b)

Appellant is correct that a court, when making determinations as to parental rights and responsibilities or visitation, is required in some circumstances to consider the wishes of the child. R.C. § 3109.04 (F)(1)(b); R.C. § 3109.051 (D)(6). Although former R.C. § 3109.04 did limit the court to a consideration of the wishes of a child eleven years old or older, the law in effect at the times relevant to the instant case do not contain such a restriction.

Section 3109.04(F)(1)(b) requires consideration of an interviewed child’s wishes and concerns, but the child’s preference is only one custody factor and does not control the residential-parent decision.

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

R.C. 3109.04 (F)(1)(b) provides that the court is to consider the child's wishes and concerns regarding the allocation of parental rights and responsibilities if the court interviewed the child. However, this is but one factor the trial court is to consider when considering custody.

Section 3109.04(B)(1) permits a juvenile court to interview children about their wishes in a legal custody proceeding but does not require it to ascertain those wishes before ruling.

In Re Yates, 2008-G-2836 (12-19-2008) · filed 2008-12-19(B)(1)

Nothing in R.C. 3109.04 requires a juvenile court to consider the wishes of the child as expressed by the guardian ad litem, as does R.C. 2151.414 (D)(2). Rather, this statute provides that "the court, in its discretion, may * * * interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation [of parental rights and responsibilities]." R.C. 3109.04 (B)(1). Accordingly, it is not error for the juvenile court to render a dispositional judgment without first ascertaining the child's wishes.

Section 3109.04(B)(2) requires a court that conducts an in camera interview with a child to consider the child's wishes in deciding custody.

In Re Hatch, 5-07-46 (11-10-2008) · filed 2008-11-10(B)(2)

A determination of the best interest of the child may include an in camera interview with the child. R.C. 3109.04 (B)(2). If this interview is done, the trial court must consider the wishes of the child. Id.

Section 3109.04(F)(1) requires consideration of the custody factors, and a child’s wish to live with one parent may tip the decision when both parents are suitable.

In re R.J.G. · filed 2012-08-23(F)(1)

Here, after considering all the factors outlined in R.C. 3109.04(F)(1) and finding that both parents were suitable, R.J.G.’s desire to stay with her Mother evidently tipped the scales in the decision to designate Mother the residential parent and legal custodian. As such, we see no abuse of discretion in said decision.

Under § 3109.04(F)(1), a child’s wishes are one factor in the best-interest analysis and are not dispositive.

In re J.S. · filed 2016-11-21(F)(1)

Even if they had, though, the wishes of the children is only one factor for consideration, and would not be dispositive of determining their best interests.

When the court interviews children in chambers, Section 3109.04(F)(1)(b) permits their wishes and concerns to be treated as considered absent evidence to the contrary.

Gould v. Gould · filed 2017-07-12(F)(1)(b)

Absent evidence to the contrary, the fact that the court interviewed the children is enough to demonstrate their wishes and concerns were considered.

Section 3109.04(F)(1)(b) requires the court to consider a child’s wishes and concerns expressed in an in-chambers interview when determining the child’s best interest.

O'Rourke v. O'Rourke · filed 2018-09-27(F)(1)(b)

R.C. 3109.04(F)(1)(b) provides that if the court has interviewed the child in chambers regarding the child’s wishes and concerns as to the allocation of parental rights, the “wishes and concerns of the child, as expressed to the court” must be considered.

Section 3109.04(F) does not require a trial court to follow the children’s wishes when deciding custody.

In re J.T. · filed 2020-08-28(F)(1)(b)

Nothing in R.C. 3109.04(F)—or R.C. 2151.414(D)—requires the trial court to comply with the children’s wishes.

Section 3109.04(F)(1)(b) concerns a child’s wishes expressed to the court during an in chambers interview, rather than statements the child made to a guardian ad litem.

Gombash v. Westbrook · filed 2023-02-27(F)(1)(b)

Subsection (b) refers to the “wishes and concerns of the child, as expressed to the court” during an in chambers interview, not out-of-court statements the children purportedly made to the GAL.

Section 3109.04(B)(2)(b) requires a court to determine a child’s wishes when appropriate, but the court need not follow those wishes when deciding the child’s best interest.

Jourdan v. Jourdan · filed 2023-05-31(B)(2)(b)

However, simply because R.C. 3109.04(B)(2)(b) states the trial court must determine the child’s wishes does not mean that is the end of the inquiry. There is a clear distinction in the statute between determining the wishes and concerns of the child and following the wishes and concerns of the child.

Section 3109.04(B)(3) bars eliciting a child’s recorded wishes about the allocation of parental rights, but does not bar a recording about the child’s behavior that does not ask where the child wishes to live.

In re M.V.P. · filed 2023-12-28(B)(3)

The statute Grandmother relies on is one that prohibits a party from creating circumstances wherein a child's wishes are elicited for the purposes of having parental rights allocated.

Section 3109.04(F)(1)(b) requires a court allocating parental rights to consider children's wishes expressed during an in-camera interview.

Reynolds v. Reynolds · filed 2026-02-02(F)(1)(b)

However, upon review of the domestic relations court's decision, the court expressly stated that it considered all of the best-interest factors ... outlined in both R.C. 3109.04(F)(1) and (F)(2) when making its decision to deny Husband's proposed shared parenting plan and designate Wife as G.R.'s and K.R.'s residential parent and legal custodian. This necessarily included the domestic relations court considering the wishes that G.R. and K.R. had expressed directly to the court during their respective in-camera interviews.

Section 3109.04(B)(1) and (B)(2) require an in camera interview of a minor child on a party’s request and appointment of a guardian ad litem on a parent’s request when the child is to be interviewed; those remedies are moot once the child reaches majority without a legal disability.

Spine v. Spine, Unpublished Decision (1-10-2008) · filed 2008-01-10(B)(1), (B)(2)

The plain and unambiguous language of R.C. 3109.04 (B)(1) and (B)(2) requires the trial court to conduct an in camera interview and appoint a GAL for a minor child, upon the request of a party. Thus, although we agree with mother that the trial court erred when it denied the motions, we conclude that the error is moot. The record reflects that the child is now over the age of majority and is not under a legal disability. Therefore, the trial court would not be able to appoint a GAL or conduct an in camera interview.

Section 3109.04(C) requires a party seeking an investigation or examination report to request it in writing; without that request, the party waives an objection that the report was untimely.

Bates-Brown v. Brown, 2006-T-0089 (9-28-2007) · filed 2007-09-28(C)

Moreover, pursuant to R.C. 3109.04 , it is incumbent upon the party seeking the report to make a written request. ... Therefore, Mr. Brown has effectively waived his right to complain that the written report was untimely.

Section 3109.04(B)(2)(a) leaves appointment of a guardian ad litem to the court's discretion when neither parent requests one.

In the Matter of Todd, Unpublished Decision (3-22-2007) · filed 2007-03-22(B)(2)(a)

However, nowhere does it state that the court shall appoint a GAL when neither party has requested that it do so. Thus, since in this case neither party requested that the court appoint a GAL, it was within the court's discretion whether or not to appoint one.

Section 3109.04(B)(1) requires a requested in camera interview when the court determines the child’s best interest, but a court that finds no change of circumstances on a custody modification motion need not conduct the interview.

Terry L. v. Eva E., Unpublished Decision (3-5-2007) · filed 2007-03-05(B)(1)

R.C. 3109.04 (B)(1) requires a trial court to conduct an in camera interview upon a party's request when the court is determining the child's best interest. We find that the juvenile court did not err by failing to conduct an in camera interview of the child. Because the juvenile court did not find a change of circumstances, it did not need to address the child's best interest, and thus, was not required to conduct an in camera interview of J.L.

Section 3109.04(B)(1) requires the court to interview a child in chambers when either party requests it, and failure to do so is reversible error.

Pedraza v. Collier, 7-06-03 (7-30-2007) · filed 2007-07-30(B)(1)

When either party moves the court to interview the child in chambers, it is mandatory that he conduct such an interview. ... Failure to follow the mandates of R.C. 3109.04 (B) is reversible error, even where the trial court has made a thoughtful and conscientious decision. ... Accordingly, we find that the juvenile court erred in failing to conduct an in camera interview of Paige after Brook had requested the court to do so.

Section 3109.04(B)(1) requires the trial court to interview children in chambers when a party requests it, even if the request is filed after the hearing.

Lamont v. Lamont, Unpublished Decision (11-24-2006) · filed 2006-11-24(B)(1)

This statute does not require that the motion be filed prior to the hearing. ... Thus, once appellant filed her motion, there was a mandatory requirement that the trial court interview the children.

Section 3109.04(B)(1) requires an in camera interview of the child when either parent requests one in a proceeding to modify a shared parenting order.

Hill v. Hill, Unpublished Decision (11-6-2006) · filed 2006-11-06(B)(1)

However, the court does not have discretion in deciding to conduct the interview once it is requested by either parent.

Section 3109.04(B)(2)(a) requires appointment of a guardian ad litem on a parent’s motion when the court interviews the child; a nonparent lacks standing to demand the appointment under this provision.

Huffman v. Forsythe, Unpublished Decision (10-6-2006) · filed 2006-10-06(B)(2)(a)

It is clear from the statute that if one of the child's parents files a motion requesting the appointment of a GAL, then the trial court must grant the motion. In the instant case, however, Huffman is not K.H.'s biological father. Thus, he does not have standing pursuant to R.C. § 3109.04 to demand that a GAL be appointed to represent the interests of K.H. Moreover, Huffman's assertion that he need only be a party to the case to demand the appointment of a GAL is a mischaracterization of the statute. The language used in R.C. § 3109.04 only mandates the appointment of a GAL if the person requesting it is a parent of the minor child involved.

Section 3109.04(C) does not require the court or guardian ad litem to provide a parent with the guardian’s report absent a written request.

Wilburn v. Wilburn · filed 2006-11-06(C)

There is no evidence in the record that the mother or her trial counsel ever submitted a written request for the GAL’s report prior to trial. Accordingly, neither the GAL nor the trial court was required to provide the mother or her counsel with a copy of the report. See R.C. 3109.04(C).

Section 3109.04(B) requires appointment of a guardian ad litem on a parent’s motion, but a nonparent party cannot demand appointment under that provision.

King v. King, Unpublished Decision (11-13-2006) · filed 2006-11-13(B)

The statute is clear that if one of the child's parents files a motion requesting the appointment of a GAL, then the trial court must grant the motion.

Even assuming § 3109.04(C) applies to a guardian ad litem, denial of cross-examination does not warrant reversal without a showing that the denial prejudiced the custody outcome.

O'Brien v. O'brien, Unpublished Decision (12-18-2006) · filed 2006-12-18(C)

Assuming, arguendo, R.C. 3109.04 (C) was applicable to Ms. Dummermuth's guardian ad litem role in this matter, we find no demonstration of prejudicial error under the circumstances of this case. In particular, although appellant asserts that the court made " * * * a decision based on evidence which has not been subjected to the rigors of the adversarial process" (Appellant's Brief at 8), appellant does not otherwise articulate a challenge to the court's custody award in the present appeal. Since the details of the custody issue are not otherwise addressed on the merits, we find no showing of what effect the proposed cross-examination would have had on the outcome of the trial.

When a child is to be interviewed in camera, § 3109.04(B)(2)(a) requires the court to appoint a guardian ad litem if either parent moves for one.

Myers v. Myers · filed 2007-01-09(B)(2)(a)

The statute clearly mandates that if a parent moves the trial court to appoint a guardian ad litem when the child is to be interviewed in camera, the court is required to do so.

A party seeking an in camera interview of a child under § 3109.04(B)(1) waives the issue on appeal by failing to raise the court’s omission while the trial court can correct it.

Miracle v. Allen, Unpublished Decision (9-29-2006) · filed 2006-09-29(B)(1)

Because Appellant failed to raise the issue of the trial court's failure to interview the minor child at a time when the trial court could have corrected the error, Appellant waived the issue for purposes of appeal.

Section 3109.04(B)(1) requires the court to interview children about their custody wishes when either party requests it, but leaves an interview to the court’s discretion when neither party requests one.

Barry v. Barry · filed 2006-09-28(B)(1)

Neither party requested that the trial court interview the children and therefore there was no requirement that an interview be conducted. The trial court did not abuse its discretion by not, on its own initiative, interviewing the children.

Section 3109.04(B)(1) requires an in camera interview of the child when either party requests one; a court abuses its discretion by deciding custody after a request is withdrawn without giving the other party an opportunity to request the interview.

In Re Marriage of Munnings, Unpublished Decision (6-23-2006) · filed 2006-06-23(B)(1)

This belief was supported by statute, in that R.C. 3109.04 (B) mandates that an in camera interview occur if one of the parties requests one. ... The magistrate abused her discretion by issuing her decision without conducting an in camera interview of the child or providing appellant the opportunity to request an interview.

Section 3109.04(C) treats a guardian ad litem as an investigator for the court.

In Re Sherman, Unpublished Decision (11-7-2005) · filed 2005-11-07(C)

The GAL is an investigator for the court within the meaning of R.C. 3109.04 (C).

Section 3109.04(B)(1) requires an in-chambers interview of a child upon a party’s request in an original parental-rights allocation or modification proceeding, but does not apply to contempt proceedings concerning visitation.

Forrester v. Forrester, Unpublished Decision (9-30-2005) · filed 2005-09-30(B)(1)

The language of the statute does not support Steele's claim that the trial court was required to interview Kathryn. This matter was before the court as a contempt proceeding. It was not "an original proceeding [for the allocation of parental rights and responsibilities] or * * * any proceeding for modification of a prior order of the court making allocation," as contemplated by R.C. 3109.04 (B)(1).

Section 3109.04(B)(2) allows a trial court to use a reasonable method to interview a child about parental rights and responsibilities without asking specific questions or offering alternative parenting schedules.

Kellogg v. Kellogg, Unpublished Decision (12-30-2004) · filed 2004-12-30(B)(2)

Contrary to defendant's contention, R.C. 3109.04 (B) does not require a trial court to ask the child how much time he or she would like to spend with each parent or to present the child with alternative parenting schedules from which to choose. The statute does not specify a particular course of action to be followed by the trial court during the interview, nor does it require the court to ask specific questions or pose questions in a particular manner.

Section 3109.04(B)(1) requires a trial court to interview the children in camera when either party requests it in a child custody proceeding.

Church v. Church, Unpublished Decision (11-18-2004) · filed 2004-11-18(B)(1)

R.C. 3109.04 (B)(1) gives a trial court the discretion to sua sponte interview the children in camera in child custody proceedings, but mandates that it interview the children in camera at the request of either party.

Section 3109.04 provides for appointment of a guardian ad litem when the trial court is to interview a child, and does not apply when no child interview is sought or requested.

Putthoff v. Thompson, Unpublished Decision (1-9-2004) · filed 2004-01-09

R.C. 3109.04 provides for the appointment of a guardian ad litem if the trial court is to interview the child. ... Similarly, the trial court did not seek nor was it requested to interview the children in this matter. As such, R.C. 3109.04 is not applicable to this case.

Section 3109.04(B)(2)(a) gives a trial court discretion to appoint a guardian ad litem for a child and direct payment for those services.

Brewer v. Brewer, Unpublished Decision (7-1-2004) · filed 2004-07-01(B)(2)(a)

The trial court has the discretion to appoint a guardian ad litem for a child pursuant to R.C. 3109.04 (B)(2)(a), and to direct payment for those services.

Section 3109.04(B)(2)(b) leaves the wording of a child custody interview to the interviewer’s discretion and allows a question about the child’s preferred parent while assessing reasoning ability.

Keller v. Keller, Unpublished Decision (11-26-2003) · filed 2003-11-26(B)(2)(b)

First, we note that the statute does not set out any talismanic language to use when interviewing children in custody disputes. This was probably something the Ohio General Assembly thought best to leave to the discretion of the interviewer. Second, from our review of the transcript, it is clear that the question was put to the child in the context of determining if he possessed sufficient reasoning ability to make his choice. In other words, we do not find that the magistrate inappropriately skipped ahead in the process.

Section 3109.04(B)(1) child interview requirements apply to allocation of parental rights, not to additional evidence about child support.

Levine v. Levine, Unpublished Decision (12-24-2002) · filed 2002-12-24(B)(1)

In contrast, the instant matter involves alleged additional evidence regarding child support, not the allocation of parental rights. Accordingly, the interview requirements in R.C. 3109.04 (B)(1) do not apply.

When a party requests an interview of the child in a custody proceeding, the juvenile court must conduct an in-chambers interview to hear the child’s wishes and concerns.

In Re Delrico Brazile, Unpublished Decision (12-6-2002) · filed 2002-12-06(B)(1)

Because Watkins's counsel had moved the court to interview the child, the juvenile court was statutorily required to conduct an in-chambers interview of Delrico. Even though the juvenile court stated that it had considered Delrico's wishes by way of his guardian ad litem, the state legislature has made it abundantly clear that once a party requests that the juvenile court interview a child, the juvenile court must attempt to listen to the child's input.

Section 3109.04(B)(2)(c) requires a record of an in-chambers interview of a child in a parental-rights proceeding when a party timely requests one.

Patton v. Patton · filed 1993-07-28(B)(2)(c)

It is our view that this statutory section requires that a court stenographer and/or other record recording device be present in the in-chambers interview of the minor child upon timely request.

Section 3109.04(B)(2)(a) requires a court to appoint a guardian ad litem on either parent’s motion if the court intends to interview a child privately in a custody dispute.

State ex rel. Papp v. James · filed 1994-06-01(B)(2)(a)

This statute plainly requires appointment of a guardian ad litem upon the motion of a parent if the court intends to privately interview a child in a custody dispute.

Section 3109.04(B)(2)(b) requires written findings only when special circumstances make it contrary to the child’s best interest to determine the child’s wishes and concerns about parental rights and responsibilities.

Donovan v. Donovan · filed 1996-04-29(B)(2)(b)

R.C. 3109.04(B)(2)(b) requires the trial court to enter written findings of fact only “[i]f the court determines that, because of special circumstances, it would not be in the best interest of the child to determine the child’s wishes and concerns with respect to the allocation” of parental rights and responsibilities. In this case, there were no special circumstances. Consequently, the trial court was not required to enter written findings.

Section 3109.04 requires an in-chambers child interview when either party requests one and, if the child is interviewed, appointment of a guardian ad litem when either parent moves for one.

Badgett v. Badgett · filed 1997-07-15(B)(1), (B)(2)(a)

Thus, if a party requests an interview one must be given, and if a parent requests that a guardian ad litem be appointed the appointment must be made.

Section 3109.04(B)(1) requires the trial court to review the transcript of a required in camera interview with the children before making its custody determination.

Nuding v. Nuding, Unpublished Decision (12-7-1998) · filed 1998-12-07(B)(1)

The requirement for an in camera interview with the children, pursuant to R.C. 3109.04 (B)(1), is rendered meaningless if the trial court does not, at the very least, review any transcript thereof before making its own custody determination.

The required child interview under § 3109.04 is satisfied when the trial judge interviews the child in the guardian ad litem’s presence.

Jancuk v. McHenry, Unpublished Decision (8-24-1999) · filed 1999-08-24(B)(2)(c)

R.C. 3109.04 (B)(2)(c) provides as follows: "The interview shall be conducted in chambers and no person other than the child, the child's attorney, the judge, any necessary court personnel, and, in the judge's discretion, the attorney of each child's parent shall be permitted to be present in the chambers during the interview." The trial judge, in the presence of the guardian ad litem, interviewed Karin pursuant to R.C. 3109.04 . It is clear that the trial court and the guardian ad litem conducted the required interview with Karin pursuant to R.C. 3109.04 .

Section 3109.04(B)(1) does not authorize an in chambers interview of children at a hearing that does not involve the allocation of parental rights and responsibilities.

Richardson v. Richardson, Unpublished Decision (1-19-2000) · filed 2000-01-19(B)(1)

The March 17, 1999 hearing did not involve the allocation of parental rights and responsibilities; therefore, the trial court did not have the authority pursuant to R.C. 3109.04 (B)(1) to conduct an in chambers interview of the minor children.

Section 3109.04(B)(2)(a) requires a court that interviews a child to appoint a guardian ad litem when either parent moves for one.

McClanahan v. Willenbrink, Unpublished Decision (5-15-2000) · filed 2000-05-15(B)(2)(a)

R.C. 3109.04 (B) is mandatory in nature, and the trial court must strictly follow its procedures. Once a motion is made to interview the child and appoint a guardian ad litem for the child, the trial court is required to conduct such an interview and appoint a guardian ad litem .

Section 3109.04(B)(1) does not require a court to interview a child about custody when neither party requests an interview.

Rusnak v. Stevenson, Unpublished Decision (5-19-2000) · filed 2000-05-19(B)(1)

We note that Stevenson does not claim that he requested that the child be interviewed by the court; therefore, the trial court was not required to conduct the interview.

Section 3109.04(B)(3) bars parties from accessing the record of a child's in-chambers interview about the allocation of parental rights and responsibilities.

Beil v. Bridges, Unpublished Decision (7-13-2000) · filed 2000-07-13(B)(3)

R.C. 3109.04 (B)(3) provides that no person shall obtain or attempt to obtain from a child written or recorded statement setting forth the child's wishes regarding allocation of parental rights and responsibilities. This statute expresses the legislative intent to prevent all parties from gaining access to the record of an in-chambers interview of a child.

Section 3109.04(B)(2)(b) allows the trial court to decline to seek a child's custody wishes when special circumstances make doing so contrary to the child's best interests.

Goetze v. Goetze, Unpublished Decision (7-14-2000) · filed 2000-07-14(B)(2)(b)

However, given the serious conflict between the parents in this case, as found by the trial court, and given the stressful situation which undoubtedly emanated from placing Dylan in the middle of the controversy, as found by the court, the record does portray some "special circumstances" and distinctive characteristics. And in the final analysis, it was within the trial court's discretion as to whether to allow the testimony of Dylan regarding custody.

Section 3109.04(B)(2)(b) requires written findings after a child interview only when the court finds special circumstances that make determining the child’s wishes contrary to the child’s best interest.

Davis v. Davis, Unpublished Decision (10-26-2000) · filed 2000-10-26(B)(2)(b)

This section states that written findings are required only when the court makes a finding that special circumstances exist.

Section 3109.04(B)(1) requires an in camera interview of a child when either party requests one; an oral request made at the final hearing suffices.

King v. King, Unpublished Decision (2-20-2001) · filed 2001-02-20(B)(1)

We view this section to be mandatory language if either party requests the interview and discretionary only if the trial court does it on its own initiative.

Section 3109.04(B)(2)(b) requires written findings when the court decides not to determine a child’s wishes and concerns, but not when it decides to determine them.

In the Matter of Johnson, Unpublished Decision (6-6-2001) · filed 2001-06-06(B)(2)(b)

Since the statute clearly states that the court must enter written findings of fact and opinion when it decides that the child's wishes and concerns will not be determined, it can reasonably be inferred that the court is not required to make written findings of fact and opinion when it determines that the child's wishes and concerns will be determined.

Section 3109.04(B)(2)(c) contemplates an individual chambers interview by the trial judge to determine a child’s wishes and concerns when allocating parental rights, particularly when significant circumstances have changed since a magistrate’s interview.

Schottenstein v. Schottenstein, Unpublished Decision (11-29-2001) · filed 2001-11-29(B)(2)(c)

R.C. 3109.04 (B)(2)(c) clearly contemplates that the trial judge shall meet with the children individually in chambers.

Section 3109.04(B)(1) requires a requested in camera interview with the child when the court determines whether modification serves the child’s best interests; an interview is unnecessary if the court denies modification for lack of changed circumstances without reaching best interests.

Guess v. Springer, Unpublished Decision (12-19-2001) · filed 2001-12-19(B)(1)

R.C. 3109.04 (B)(1) requires a trial court to conduct an in camera interview upon a party's request when the court is making a determination of whether modification is in the best interests of the child . In this case, the trial court overruled Guess's custody motion due to his failure to demonstrate a sufficient change in circumstances. That decision was not based on whether a change was in the child's best interest. Therefore, there was no need to conduct an interview.

Section 3109.04(B)(2)(a) does not require appointment of a guardian ad litem when the court does not intend to privately interview the child.

Purvis v. Purvis, Unpublished Decision (2-4-2002) · filed 2002-02-04(B)(2)(a)

Moreover, since the trial court did not intend to privately interview Ellen, it was not required to appoint a guardian ad litem . See R.C. 3109.04 (B)(2)(a).

Section 3109.04 does not require an in camera interview of the children or appointment of a guardian ad litem on a custody modification motion when the movant fails to show a change in circumstances and the court does not reach the children’s best interests.

Walsh v. Walsh, Unpublished Decision (6-27-2005) · filed 2005-06-27(B)(1), (B)(2)(a)

However, a closer reading of the statute reveals it requires the court to interview the children and appoint a guardian ad litem only when it considers the best interest of the children in making its custody determination. As we discussed in our analysis of Mary's first assignment of error, there was no need to reach the best interest prong of the test because Mary failed to show a change in circumstances. Because the lower court did not reach the best interest prong, it was not required to interview the children and appoint a guardian ad litem.

Section 3109.04(B) requires a court to interview a child about the allocation of parental rights upon either party’s request and to appoint a guardian ad litem upon a parent’s motion if it interviews the child; failure to follow these procedures is reversible error.

Dolub v. Chmielewski, Unpublished Decision (9-7-2005) · filed 2005-09-07(B)(1), (B)(2)(a)

Despite Ms. Chmielewski's motions, the trial court failed to interview the child and correspondingly failed to appoint a guardian ad litem. Ms. Chmielewski's first assignment of error is sustained.

Section 3109.04(B)(1) requires the court to interview the children in chambers about their wishes and concerns when either party requests it.

Mangan v. Mangan, 07-Ca-100 (7-18-2008) · filed 2008-07-18(B)(1)

R.C. 3109.04 (B)(1) contains the directive. Though discretionary absent a request, upon a request by either party, duty replaces discretion and the court is instructed that it "shall interview in chambers any or all of the involved children regarding their wishes and concerns."

Section 3109.04(B)(1) requires a child interview upon a party’s request when allocating parental rights and responsibilities, but does not require one before finding a parent in contempt.

Wolfe v. Schmitz, 07ap-1059 (8-21-2008) · filed 2008-08-21(B)(1)

By its clear terms, R.C. 3109.04 (B)(1) only applies when the issue before the trial court is the proper allocation of parental rights and responsibilities. Thus, R.C. 3109.04 (B)(1) does not require a trial court to interview the children before finding a parent in contempt.

Section 3109.04(B)(1) imposes no duty to interview children in chambers after the motions requesting an interview have been dismissed.

Hayne v. Hayne, 07ca0100-M (8-25-2008) · filed 2008-08-25(B)(1)

Accordingly, Mother's motions for an in camera interview with the children were dismissed and the trial court no longer had any duty to interview the children.

Section 3109.04(B)(1) permits a court to interview a child in chambers more than once when allocating parental rights and responsibilities.

Caldwell v. Caldwell, Ca2008-02-019 (5-11-2009) · filed 2009-05-11(B)(1)

The statute, while it sets forth several mandates regarding how a court is to conduct an in-camera interview, does not prohibit multiple interviews of the child or otherwise state that a court is limited in the amount of times it may interview the child.

Section 3109.04(B)(2)(b) requires a court interviewing a child to assess whether the child has sufficient reasoning ability to express wishes about parental rights and responsibilities.

Hall v. Hall · filed 2010-10-04(B)(2)(b)

The magistrate asked questions sufficient to ascertain whether the child could express her wishes and concerns with respect to the allocation of parental rights and responsibilities, and after reviewing Shelby’s answers, we believe that it was reasonable for both the magistrate and GAL to determine that Shelby did not demonstrate sufficient reasoning ability.

Section 3109.04(B)(2)(a) requires appointment of a guardian ad litem on a parent’s motion before a private child interview; a late request ordinarily waives the objection, although exceptional circumstances may warrant relief.

Cochran v. Cochran · filed 2011-03-29(B)(2)(a)

R.C. 3109.04(B)(2)(a) requires a trial court to appoint “a guardian ad litem upon the motion of a parent if the court intends to privately interview a child in a custody dispute.” ... We further caution, however, that a request for a guardian ad litem must ordinarily be made before a court interviews the child. ... Therefore, we limit our holding to the specific facts of this case.

Section 3109.04 does not require an in camera interview of children on a motion to terminate shared parenting when no change in circumstances has been shown and the court will not reach their best interests.

Rice v. Rice · filed 2011-06-23(B)(1)

However, as we have previously herein set forth, R.C. 3109.04 does not mandate such an interview where there has been no demonstration of a change of circumstances and the matter of best interests will not be reached.

When a court interviews a child about custody, § 3109.04(B)(2)(a) requires appointment of a guardian ad litem upon either parent’s motion.

Bowker v. Bowker · filed 2011-09-02(B)(2)(a)

Therefore, appointment of the guardian was statutorily required.

Section 3109.04(B)(1) requires the court to interview a child in chambers when either party requests an interview.

Oyler v. Oyler · filed 2011-08-29(B)(1)

Use of the word “shall” indicates the legislature intended the interview to be mandatory if requested by the parties.

Section 3109.04(B)(1) requires an in camera interview of the child upon either party’s request when the court must determine the child’s best interests in a custody proceeding.

In re D.C.J. · filed 2012-09-13(B)(1)

Because the trial court would have to make a best interest determination if father is deemed unsuitable, this request was warranted under R.C. 3109.04(B)(1). The trial court is statutorily mandated to conduct such a hearing upon the request of either party.

Assuming § 3109.04(B)(1) applies to a dependent-child custody modification, a requested in camera interview presents no error when the judge interviews the child before entering the visitation order.

In re L.V. · filed 2012-12-12(B)(1)

Mother relies on R.C. 3109.04(B)(1) in suggesting that the trial court has a mandatory duty to conduct an in camera interview of a child upon request by a party in order to obtain input on the child’s wishes as to custody. To the extent that this statute applies in a proceeding conducted pursuant to R.C. 2151.42(B), this Court concludes that the trial court acted reasonably and imputes no error to the trial court. ... That meeting was accomplished before the trial judge entered her order on visitation.

Section 3109.04 requires in-camera interviews of children about custody to remain confidential.

Lawson v. Lawson · filed 2013-10-21(B)(2)(c), (B)(3)

This Court has interpreted sections (2)(c) and (3) of R.C. 3109.04 to mean in-camera interviews are to remain confidential.

Section 3109.04(B)(1) requires an in camera interview concerning a child’s wishes when the court reaches a best-interest disposition, but not during the adjudication of abuse, neglect, or dependency.

In re C.O. · filed 2013-11-27(B)(1)

Accordingly, an in camera interview pursuant to R.C. 3109.04(B)(1) is required when making a determination of a child’s best interest, which is pertinent for disposition, not for an adjudication of abuse, neglect, or dependency.