Ohio Rev. Code Ann. § 3109.04

Section 3109.04(B)(1) requires the court to interview the children about allocation of parental rights and responsibilities when either party requests it.

Gorman v. Gorman · filed 2013-12-18(B)(1)

In cases involving the allocation of parental rights and responsibilities, however, the court must interview the children if either party makes such a request.

Section 3109.04(B)(2)(a) requires appointment of a guardian ad litem on a parent’s motion when the court conducts an in chambers interview of the child.

Kranz v. Kranz · filed 2014-06-30(B)(2)(a)

We find the court's actions to be improper and in contravention of R.C. 3109.04(B)(2)(a). From the record it is clear that Father moved to have a GAL appointed, a remedy he was entitled to pursuant to the express language of R.C. 3109.04(B)(2)(a).

Section 3109.04(B)(2)(a) requires appointment of a guardian ad litem only when a party requests it and the court interviews the child in chambers.

Loewen v. Newsome · filed 2014-12-31(B)(2)(a)

R.C. 3109.04 only requires a court to appoint a guardian ad litem when a party has requested the appointment and the court interviews the child in chambers.

Section 3109.04(B)(2)(c) does not apply to juvenile court proceedings and does not require a child’s attorney to attend an in camera interview.

In re R.L. · filed 2014-09-12(B)(2)(c)

R.C. 3109.04(B)(2)(c), upon which Father relies, does not apply to juvenile court proceedings but, like R.C. 2151.352, it does not require the presence of the child’s attorney at an in camera interview.

A judge deciding objections to a magistrate’s custody decision has discretion under Civ.R. 53 to decline a child interview requested only after the magistrate’s decision, despite subsection (B)(1)’s interview mandate upon a party’s request.

Rafeld v. Sours · filed 2014-09-25(B)(1)

We therefore hold that a judge's general discretion whether or not to hear additional evidence on a Civ.R. 53 objection takes precedence over the mandate of R.C. 3019.04(B)(1) where an appellant has failed to request an in camera interview prior to the decision of the magistrate hearing the custody issue.

Section 3109.04(B)(1) requires the court to interview a child when either party requests it, but leaves the interview to the court’s discretion when neither party requests it.

Hutchinson v. Hutchinson · filed 2014-10-17(B)(1)

We have held that where a party requests an interview of a child, the trial court must comply. However, where an interview is not requested, the court has discretion over the decision.

Section 3109.04(B)(1) requires an in camera interview of a child when either party requests one, but does not require a remote interview when the custodial parent makes the child unavailable.

Hetlin v. Hetlin · filed 2014-11-10(B)(1)

R.C. 3109.04(B)(1) states that “the court, in its discretion, may and, upon request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.” ... Bedi cites no case law that requires a court to conduct an in camera interview remotely when the custodial parent makes the child unavailable.

Section 3109.04(C) permits a parent to cross-examine a guardian ad litem about the factual basis for the guardian’s report and conclusions, including facts learned from others’ statements.

Ash v. Dean · filed 2016-08-30(C)

When a parent asks about the factual basis for the guardian ad litem's conclusions, the guardian must testify to those facts she relied on to reach her conclusions, regardless of whether she learned those facts through others' statements.

Section 3109.04(B)(1) does not require an in camera interview of a child in a civil protection order proceeding, even if the court may temporarily allocate parental rights.

Insa v. Insa · filed 2016-10-21(B)(1)

Because a trial court is not required to consider the R.C. 3109.04 best-interest factors, or even to make an explicit best-interest determination, when resolving a request for a civil protection order, R.C. 3109.04(B)(1)’s requirement for a trial court to conduct an in camera interview to determine a child’s best interest does not apply.

Section 3109.04(B)(1) requires an in camera interview of a child upon a party’s request, and a magistrate’s interview satisfies that requirement without a second interview by the trial judge.

In re T.M.M. · filed 2017-12-21(B)(1)

An in camera interview is only mandatory upon request of a party. R.C. 3109.04(B). This requirement is satisfied when a magistrate conducts the interview; this is the nature of the magistrate’s position.

Section 3109.04(B)(1) requires an in-chambers interview of a child upon a party’s request when the court allocates parental rights and responsibilities, but does not govern visitation rights when one parent is the residential parent and legal custodian.

Jagodzinski v. Abdul-Khaliq · filed 2018-05-09(B)(1)

As such, this case is not governed by R.C. 3109.04, but instead is governed by R.C. 3109.051.

Section 3109.04(B)(1) requires an in-camera interview upon either party’s request when a court considers allocating or modifying parental rights and responsibilities; it does not govern grandparent visitation.

Doughty v. Doughty · filed 2019-03-19(B)(1)

In-camera interviews are required, upon the request of either party, when a court is considering the allocation or modification of parental rights and responsibilities under R.C. 3109.04(B)(1). However, this case does not involve the allocation of parental rights and responsibilities; rather it involves visitation rights of a grandparent when one parent has been designated the legal custodian and residential parent. As such, this case is not governed by R.C. 3109.04, but by R.C. 3109.051.

Section 3109.04(B)(1) does not require successive interviews of the same child in one custody-modification proceeding merely because a party requests another interview, and a magistrate may satisfy the interview requirement in a referred case.

Hammond v. Hammond · filed 2019-04-03(B)(1)

The statute does not impose an unlimited duty on the trial court to perform successive interviews of the same child in a single proceeding for modification of a custody degree, even if requested by a party, as Hammond suggests. And nothing in R.C. 3109.04(B)(2) or Civ.R. 53 prevents a magistrate from satisfying the requirements of the statute in a referred case.

A failure to interview every child requested under § 3109.04(B)(1) is not plain error when the appellate record does not show that the requesting party preserved the issue at trial.

Tucker v. Hines · filed 2020-03-24(B)(1)

Given the state of the record before this court, our inability to determine whether mother raised her current arguments at trial when they could have been corrected, and that we are required to presume regularity in the proceedings, we can find no plain error in the trial court's decision to interview only the oldest child in camera.

Section 3109.04(B)(1) requires the court to interview a child in chambers about the allocation of parental rights and responsibilities when either party requests the interview.

Saleh v. Yassen · filed 2020-04-30(B)(1)

As a result, the in camera interview was mandatory pursuant to R.C. 3109.04(B)(1).

Section 3109.04(B)(1) governs child interviews in allocations of parental rights and responsibilities; parenting time disputes involving a nonresidential parent are governed by section 3109.051 instead.

Patel v. Patel · filed 2019-09-11(B)(1)

Next, the instant matter involves visitation rights where one parent has been designated the residential parent and legal custodian rather than the allocation of parental rights and responsibilities. Therefore, R.C. 3109.051 is the applicable statute. ... Thus unlike R.C. 3109.04(B)(1), cited by ... appellant, R.C. 3109.051(C) does not require the trial court to conduct an in-camera interview and we find no abuse of discretion in the trial court's failure to do so.

Section 3109.04(B) does not require a second in camera interview of a child merely because a party requests one during the same custody modification proceeding.

Hill v. French · filed 2021-01-08(B)

However, a second in camera interview is not mandated when requested by a party.

Section 3109.04 permits an in camera interview of a child to consider the child’s wishes when deciding whether circumstances have changed; a change need not be found before the interview.

B.C. v. S.D. · filed 2021-08-26(E)(1)(a)

In order to consider a child's wishes under a change of circumstances analysis, a trial court may conduct an in camera interview to question the child. We do not find R.C. 3109.04 limits in camera interviews to best interest analysis only.

Section 3109.04(B)(1) does not require an in camera interview when a court modifies a shared-parenting plan only to change the residential parent for school purposes.

Marimon v. Marimon · filed 2021-09-29(B)(1)

In this case, the trial court’s decision granting Mother’s motion to modify the terms of the shared-parenting plan to change the residential parent for school purposes is governed by R.C. 3109.04(E)(2)(b), and the in camera interview requirement in R.C. 3109.04(B)(1) does not apply.

Section 3109.04(F)(1)(b) requires an in camera interview to consider a child’s wishes under its parental-rights framework.

In re F.B. · filed 2022-02-22(F)(1)(b)

R.C. 3109.04(F)(1), regarding parental rights in shared parenting, does require an in camera interview in order to consider the wishes of the child.

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

In re T.K. · filed 2025-01-13(B)(1)

The interplay between R.C. 2151.23 and R.C. 3109.04 is important because R.C. 3109.04(B)(1) states that upon the request of either party, the trial court “shall interview [the child] in chambers[.]” (Emphasis added.) Given this clear statutory language, we can find no error here, let alone an abuse of discretion, where a trial court interviews a child after it has been specifically requested by a party because that is precisely what R.C. 3109.04(B)(1) requires.

Section 3109.04(B)(2) gives a court discretion to interview a child in a custody dispute.

Edelstein v. Edelstein · filed 2025-04-30(B)(2)

Pursuant to R.C. 3109.04(B)(2), the court has the discretion to interview a child subject to a custodial-allocation dispute.

Section 3109.04(B)(1) permits an in camera interview of children at the court’s discretion when no party requests one, and the court need not conduct one on its own when the circumstances do not warrant it.

In re A.B. · filed 2026-02-23(B)(1)

However, R.C. 3109.04, which provides additional guidance as to the best interest of a child, addresses the trial court’s use of in camera interviews. ... Under these circumstances, the juvenile court was not unreasonable when it did not sua sponte interview Ame.M. and A.B. in chambers to determine, first, their reasoning abilities, and second, if determined to be capable of understanding, their wishes as to custody.

Section 3109.04 permits a court to interview multiple children together in chambers when considering their wishes about parental rights and responsibilities.

Suwareh v. Nwankwo · filed 2026-06-15(B)(2)(c)

Nothing in R.C. 3109.04 prohibits the court from interviewing multiple children together in chambers rather than separately interviewing each child.

A hurricane and its aftermath do not establish a change of circumstances when the child remains safe and the disruptions have no long-term detrimental effects.

In re A.R.-B. · filed 2019-06-21(E)(1)(a)

The trial court reasonably concluded that Father’s decision to stay on Sint Maarten and the hurricanes’ effects on the island did not constitute a change of circumstances under R.C. 3109.04(E).

Section 3109.04 requires changed circumstances to modify custody; allegations meeting that threshold require a hearing, even though the court has not yet decided whether the change is proved.

Dibble v. Dibble · filed 2011-11-07(E)(1)(a)

R.C. 3109.04 requires a showing change in circumstances before a court may modify custody. ... We find appellant’s motion meets the threshold requirement of demonstrating there has been a change in circumstances, sufficient for the court to review the custody and visitation issues. We find the trial court erred in dismissing the matters without conducting a hearing and particularly without interviewing the children in camera. We stress that our opinion is only that the court should have conducted a hearing and interviews with the children, and we do not address whether there was in fact a change in circumstances sufficient to satisfy the Davis standard.

Section 3109.04(E)(1)(a) allows a change-of-circumstances finding based on parental alcohol abuse and interference with parenting time without proof that the child has already suffered injury or alienation.

Cossin v. Holley, 2006 Ca 0014 (9-28-2007) · filed 2007-09-28(E)(1)(a)

However, the trial court is not required to sit back and wait until an alcohol impaired parent fails to protect the safety of a child and injury results or until damage to the nurturing relationship between the minor child and a parent results in actual alienation, in order to reach the logical conclusion that these actions have a negative impact on the well being of a child.

Section 3109.04(E)(1)(a) requires a change in circumstances, but does not require proof of a "substantial" change before custody may be modified.

Portentoso v. Portentoso, 13-07-03 (10-29-2007) · filed 2007-10-29(E)(1)(a)

Accordingly, the trial court erred by requiring Nicholas to prove a "substantial" change in circumstances.

A party may waive and be judicially estopped from challenging the change-of-circumstances requirement under § 3109.04(E)(1)(a) on appeal by omitting it from the initial magistrate objection and conceding a change at the hearing.

In Re Grubbs, 07 Ca 2 (10-30-2007) · filed 2007-10-30(E)(1)(a)

A review of the record reveals that appellant did not raise the issue of "change of circumstances" in her Civ.R. 53 objection, although it is raised on the next-to-last page of her "supplemental objections." Nevertheless, appellant's counsel conceded the existence of a change in circumstances in his opening statement. See Tr. at 9. Furthermore, the magistrate's hearing of August 29, 2006, also addressed appellant's own "motion to modify temporary parenting schedule" filed August 7, 2006. {¶ 16} Accordingly, we find the issue of change of circumstances waived and judicially estopped for purposes of this appeal.

Section 3109.04(E)(1)(a) does not require reversal for lack of a change-in-circumstances finding when the custody judgment essentially preserves the residential-parent arrangement in an agreed shared parenting plan, at least on plain-error review.

Kraft v. Regan, 2006 Ca 00362 (11-13-2007) · filed 2007-11-13(E)(1)(a)

Nonetheless, in the interest of justice, even if we review this matter under a plain error standard, the judgment entry under appeal essentially reiterates the status quo of the agreed 2004 shared parenting plan, in which appellee was designated the residential parent for school purposes. Under the circumstances of this case, we find no reversible error as to the non-applicability of R.C. 3109.04 (E)(1)(a).

Section 3109.04(E)(1)(a) permits courts to consider developments after a motion to modify custody was filed when deciding whether circumstances have changed since the original decree.

Makuch v. Bunce, 2007-L-016 (11-21-2007) · filed 2007-11-21(E)(1)(a)

However, as indicated above, the change in circumstance analysis is based upon facts that have arisen since the original decree. Thus, evidence of developments that occur after the motion was filed may be considered by the court in its determination whether circumstances have changed.

A parent’s desire to leave the state is not a substantial change in circumstances that permits a custody review under § 3109.04.

In Matter of Laplante, 07 Ca 10 (1-11-2008) · filed 2008-01-11(E)(1)(a)

Furthermore, it is improper for a trial court to treat a parent's desire to leave the state as a substantial change in circumstances for the invocation of a custody review.

Repeated denial of the other parent’s visitation can establish a change of circumstances warranting consideration of a custody modification under § 3109.04(E)(1)(a).

Sheppeard v. Brown, 2007 Ca 43 (1-11-2008) · filed 2008-01-11(E)(1)(a)

On this record, the trial court did not err in finding a change of circumstances pursuant to R.C. 3109.04 . Brown was not honest, she repeatedly denied visitation and the court was free to conclude she would fail to cooperate in the future.

A court considering modification of a prior custody decree must first determine whether the circumstances of the child or residential parent have changed since the prior order.

Maxwell v. Maxwell, 07ca0047 (3-24-2008) · filed 2008-03-24(E)(1)(a)

Applying the statutory language requires the trial court first to determine whether a change of circumstances of the child or residential parent has occurred since the prior court order.

A court may deny a motion to modify parental rights without an evidentiary hearing when the motion fails to allege a substantial change in the child’s or residential parent’s circumstances.

In Re Schwendeman, Unpublished Decision (2-22-2007) · filed 2007-02-22(E)(1)(a)

Because Mother failed to allege a change of circumstances which would permit a modification of parental rights and responsibilities under R.C. 3109.04 , we find that the trial court did not abuse its discretion by finding no change of circumstances and denying an evidentiary hearing on the matter.

Section 3109.04(E)(1)(a) requires a material change in circumstances after the prior custody decree, or facts then unknown to the court, before custody may be modified.

Markley v. Markley, Unpublished Decision (3-5-2007) · filed 2007-03-05(E)(1)(a)

R.C. 3109.04 (E)(1)(a) precludes the trial court from considering facts available to it at the time of the prior decree when considering whether a change in circumstances has occurred.

A threatened reduction in a parent’s time with the children does not establish the significant change in circumstances needed to modify a shared-parenting plan.

Lindman v. Geissler · filed 2007-04-23(E)(1)(a)

We conclude that appellant’s “threat” to reduce the time the children spent with appellee is not sufficient to establish a significant change of circumstance, and the trial court’s modification of the parental rights on this basis was erroneous.

Section 3109.04(E)(1)(a) requires a significant change in circumstances before a court considers whether modifying custody is in the child's best interest.

Bonner v. Deselm-Bonner, 06 Ca 15 (5-4-2007) · filed 2007-05-04(E)(1)(a)

Since the trial court did not find a significant enough change of circumstances so as to warrant a modification of parental rights and responsibilities, the trial court did not need to consider the best interest of the children in regard to the issue of modifying the custodial situation of the children.

Section 3109.04 does not require a change of circumstances when no prior custody order exists.

In Re L.G., Unpublished Decision (2-12-2007) · filed 2007-02-12

While R.C. 2151.23 (F)(1) states that a juvenile court must exercise its jurisdiction in child custody matters in accordance with R.C. 3109.04 , the change of circumstances requirement in R.C. 3109.04 has no application where, as here, there is no prior custody order.

A child's wishes regarding custody, standing alone, do not establish the change in circumstances required to modify parental rights.

McLaughlin v. Breznenick, Unpublished Decision (3-12-2007) · filed 2007-03-12(E)(1)(a)

A child's wishes regarding custody standing alone is not enough to constitute a change in circumstances.

A parent’s belief that they can provide a better home environment, even if proved, does not establish the change in circumstances required to modify a custody decree.

Hayes v. Hayes, Unpublished Decision (12-8-2006) · filed 2006-12-08(E)(1)(a)

These considerations are based upon appellant's contentions that he can provide a "better" home environment than appellee. Any such belief, however, even if it could be proved, and we are not convinced that the evidence reveals such proof, is insufficient to constitute a change of circumstances.

Once parental rights and responsibilities are allocated in a divorce decree, modification requires proof of a change of circumstances.

Hanselman v. Hanselman, Unpublished Decision (1-19-2007) · filed 2007-01-19(E)(1)(a)

Once parental rights and responsibilities have been allocated in a decree of divorce, however, the equal standing of the parents must yield to the requirement, as a condition of modification of the order, that there has been a change of circumstances justifying modification. R.C. 3109.04 (E)(1)(a).

Section 3109.04 does not require a change-of-circumstances finding for an initial juvenile court award of legal custody of dependent children when there is no prior custody order.

In Re T.G., Unpublished Decision (10-23-2006) · filed 2006-10-23

In fact, there was no prior order by which to ascertain whether or not the circumstances had changed. Therefore, R.C. 3109.04 is inapplicable to the present matter.

Section 3109.04(E)(1)(a) gives the trial court discretion to admit or exclude evidence of facts known when the prior custody decree was entered in deciding whether circumstances have changed.

Broadbent v. Broadbent, Unpublished Decision (10-30-2006) · filed 2006-10-30(E)(1)(a)

The trial court had sound discretion to admit or exclude evidence regarding facts that had arisen prior to the divorce decree and that were known to the court at the time of the divorce decree.

Changing a child’s pickup location does not constitute the substantive change in circumstances required to modify a shared parenting decree.

Kral v. Kral, Unpublished Decision (11-3-2006) · filed 2006-11-03(E)(1)(a)

Changing the pick-up location of the parties' child did not constitute a change of circumstances. This was not a "change of substance." Appellee testified the McDonald's restaurant was chosen because of confrontations that occurred at appellant's residence between appellant and himself as well as appellant and his new wife. The trial court agreed that a neutral location was in the best interest of the child, and ordered that the McDonald's restaurant be used as the exchange point. The trial court did not abuse its discretion by failing to find that the change of the exchange point for visitation constituted a "change of circumstances," as described in R.C. 3109.04 (E).

A change in the nonresidential parent’s circumstances generally does not justify modifying parental rights unless a shared parenting decree is involved.

Morgan v. Morgan, Unpublished Decision (12-8-2006) · filed 2006-12-08(E)(1)(a)

R.C. 3109.04 (E)(1)(a) speaks to change in the situation of the child or the residential parent. A change in circumstances for the non-residential parent is generally irrelevant, unless a shared parenting decree is involved (which is not the case here).

Under § 3109.04(E)(1)(a), interrupted visitation may factor into a material change in circumstances, but interruption alone is generally insufficient.

Doerfler v. Doerfler, Unpublished Decision (12-29-2006) · filed 2006-12-29(E)(1)(a)

While the courts may consider the interruption of visitation as a factor in deciding whether a change of circumstances has occurred, the interruption alone is generally not sufficient.

Section 3109.04(E)(1)(a) permits a court assessing changed circumstances to consider all changes since the divorce, including older changes that have become part of the child’s everyday life.

Alessio v. Alessio, Unpublished Decision (5-16-2006) · filed 2006-05-16(E)(1)(a)

Therefore, in determining whether there has been a change in circumstances, a trial court may consider changes which occurred since the divorce, even if some of those changes are more distant in time, and are now part of the child's everyday life.

Section 3109.04(E)(1)(a) does not require a change-of-circumstances finding for an original custody determination when the prior order addressed only visitation.

In Re P.T.P., Unpublished Decision (6-9-2006) · filed 2006-06-09(E)(1)(a)

Because the court found that its previous order affected only visitation, it was not required to find a change of circumstances, as Erbes claims.

Section 3109.04(E)(1)(a) does not require a change of circumstances when a court finalizes a temporary allocation of parental rights rather than modifies a prior decree.

Smith v. Smith, Unpublished Decision (6-20-2006) · filed 2006-06-20(E)(1)(a)

As such, the proceedings at issue pertained to a finalization of the parties' October 15, 2004 temporary allocation of parental rights and responsibilities, not a true "modification" thereof, and the "change of circumstances" criterion of R.C. 3109.04 (E)(1)(a) is wholly inapplicable.

Under § 3109.04(E)(1)(a), a change in circumstances on a successive custody motion is measured from the decree that allocated parental rights, even if an earlier modification motion failed.

In Re Custody of M.B., Unpublished Decision (7-21-2006) · filed 2006-07-21(E)(1)(a)

As a result, when a non-custodial parent files a second or successive motion for a change of custody after previously having failed on a similar motion, the starting point for determining whether a change in circumstances exists remains the date of the decree that actually allocated parental rights.

Section 3109.04(E)(1)(a) requires a substantive change in circumstances before a court may modify a prior allocation of parental rights and responsibilities; ordinary adjustments within a shared parenting plan may be insufficient.

Livermore v. Livermore, Unpublished Decision (2-6-2006) · filed 2006-02-06(E)(1)(a)

The threshold inquiry is whether a change has occurred in the circumstances of one of the parents or of the children; this issue must be addressed before moving to the final two prongs of the test. ... A change in circumstances "must be a change of substance, not a slight or inconsequential change." ... In the case at hand, we find that the trial court did not abuse its discretion in finding that James failed to meet his burden to demonstrate that there has been a change in circumstances.

A custody modification may rest on multiple changes that collectively amount to a change of substance in circumstances, even if none would suffice alone.

In Re Tolbert v. McDonald, Unpublished Decision (5-15-2006) · filed 2006-05-15(E)(1)(a)

While none of these changes viewed independently would necessarily be sufficient to constitute a change of substance as contemplated under R.C. 3109.04 (E)(1)(a), when viewed collectively, it is clear that a change of substance has occurred.

Under § 3109.04(E)(1)(a), repeated interference with the other parent’s visitation and medical-care rights can support a change of circumstances and custody modification when the change serves the child’s best interest.

Kimbler v. Kimbler, Unpublished Decision (5-23-2006) · filed 2006-05-23(E)(1)(a)

We find that the record contains some competent, credible evidence supporting the trial court's finding that a change of circumstances occurred and that it is in Jonathan's best interest for the court to designate Kimbler as his residential parent. Specifically, the record is replete with evidence that Mullins has repeatedly interfered with Kimbler's visitation and with Kimbler's rights with respect to Jonathan's medical care.

Section 3109.04(E)(1)(a) does not allow custody time under an erroneously granted modification to establish the change of circumstances needed to modify the original custody decree.

Kenney v. Kenney, Unpublished Decision (7-26-2004) · filed 2004-07-26(E)(1)(a)

This court previously determined that the trial court did not have the authority to modify custody to mother when she had not shown a change of circumstances of the child or his custodian. Therefore, the trial court did not abuse its discretion in refusing to allow this custody time, as erroneously granted, to establish the legal basis for a finding of a change of circumstances from the initial decree.

Section 3109.04 requires a substantial change in circumstances to modify a custody decree into a shared parenting arrangement; the other parent’s move from Arizona to Ohio alone is insufficient.

Buckingham v. Buckingham, Unpublished Decision (9-30-2004) · filed 2004-09-30(E)(1)(a)

On remand, the trial court has again entered an order amounting to a shared parenting arrangement, based upon a change of circumstances consisting of the Ms. Buckingham's removal from Arizona to Ohio. Under the law of this case, that is not a sufficient change of circumstances to justify modification to a shared parenting arrangement.

Section 3109.04(E)(1)(a) requires a change in circumstances before custody may be modified, and a child’s expressed wish to live with the other parent together with actual residence there can support that finding.

Cowan v. Cowan, Unpublished Decision (11-12-2004) · filed 2004-11-12(E)(1)(a)

Therefore, the threshold inquiry is whether the court made a finding that a change of circumstances occurred since the prior custody decree that would warrant a change of custody. If no change in circumstances occurred, the requirements for a change of custody cannot be satisfied, and a reviewing court need not examine the court's determination of the child's best interests. Mother does not directly challenge the court's conclusion that a change of circumstances occurred. However, we believe that Corey's expressed desire to reside with his father, combined with the court's finding that Corey actually resided with his father during the 2002-2003 school year constitute sufficient findings to support the court's implied finding that there was a substantial change in Corey's circumstances to warrant a modification of the previous custody order.

Section 3109.04(E)(1)(a) requires a finding of changed circumstances to substantially modify a shared parenting plan, but the finding need not use the exact phrase "change of circumstances" if the court’s factual findings support it.

Nigro v. Nigro, Unpublished Decision (11-24-2004) · filed 2004-11-24(E)(1)(a)

R.C. 3109.04 (E)(1)(a) does require the court to find a change of circumstances when substantially modifying a shared parenting plan. However, we find it inappropriate to require the court to use the exact phrase "change of circumstances." While the better practice would be for a court to explicitly find a change of circumstances before delving into the issue of the best interests of the child, we will affirm a decision where the factual findings of the court support a finding of changed circumstances. Explicit language is preferable, but not necessary.

A custody modification requires more than a slight change in circumstances; evidence of a child’s fears and maturing ability to express them can support that finding.

In Matter of McClay v. Reed, Unpublished Decision (12-29-2004) · filed 2004-12-29(E)(1)(a)

The "change" need not be a substantial one, but must be more than a slight or inconsequential change. ... Given the psychological evidence presented to the trial court, including M's fears, we cannot say the trial court abused its discretion in finding a change of circumstances.

Section 3109.04(E)(1)(a) requires a change in circumstances before modification of parental rights, and a custodial parent’s interference with visitation can establish that change.

Scaffidi v. Scaffidi, Unpublished Decision (8-31-2005) · filed 2005-08-31(E)(1)(a)

A review of the record reveals that appellant failed to abide by either the shared parenting plan the parties submitted to the court on March 12, 2002, or the standard schedule of the court. "[A] custodial parent's interference with visitation by a noncustodial parent may be considered as part of a `change of circumstances' which would allow for modification of custody." Bland v. Bland, 9th Dist. No. 21228, 2003-Ohio-828, quoting Holm v. Smilowitz (1992), 83 Ohio App.3d 757 , 773 . {¶ 17} As there was sufficient evidence to show that a change in circumstances occurred after the March 12, 2002 shared parenting plan, appellant's first assignment of error is overruled.

Section 3109.04(E)(1)(a) cannot require a parent to show changed circumstances of the child or a nonparent custodian when the nonparent holds nonpermanent custody; the custody decision turns on the child’s best interest.

In Re James · filed 2005-09-16(E)(1)(a)

Therefore, we hold that when a nonparent has nonpermanent custody of a child, the requirement in R.C. 3109.04(E)(1)(a) that the child’s parent must demonstrate a change in circumstances for either the child or the nonparent in order for the court to modify custody is unconstitutional.

A child reaching school age can be a change in circumstances supporting modification of a shared parenting decree when the existing schedule is unsuitable and modification serves the child’s best interest.

Wholf v. Wholf, Unpublished Decision (7-23-2004) · filed 2004-07-23(E)(1)(a)

Although both parties presented evidence that the child was happy and thrived in both households, the existing fifty-fifty split of visitation is not conducive to a school-age child's schedule. Thus, the trial court properly concluded that a change in circumstances had occurred and that a modification of the shared parenting decree was necessary to serve the best interest of the child.

A change in circumstances must be consequential enough to warrant modification of a prior custody decree; describing it as a substantial change does not by itself impose a higher burden than the statute requires.

Duer v. Moonshower, Unpublished Decision (8-2-2004) · filed 2004-08-02(E)(1)(a)

Accordingly, although, R.C. 3109.04 (E)(1)(a) does not contain the term "substantial" in conjunction with "a change in circumstance," case law demonstrates that when determining whether "a change in circumstances" has occurred, the trial court must examine whether the "change" is of sufficient import to warrant modification of a prior custody decree. The trial court's use of the term "substantial change in circumstance" does not per se indicate that it required appellant to meet a higher burden of proof than that required by R.C. 3109.04 (E)(1)(a).

Section 3109.04 does not require a change-of-circumstances finding for a dispositional change in a dependency, neglect, or abuse case; the best-interest standard governs.

In Re Nawrocki, Unpublished Decision (8-9-2004) · filed 2004-08-09

Appellant also argues if no finding of unfitness is made, then a trial court must comply with R.C. 3109.04 and find a change of circumstances before it can change a custodial award. As appellee JFS points out, under appellant's reasoning, whenever an award of temporary custody was made to a children's service agency, no dispositional change could occur, even returning the children to the parents, unless the parents show a change in circumstances, which made the children's services agency unsuitable to be the children's custodian. We reject this argument, and find dispositions in dependency, neglect, and abuse cases must be governed by the best interest standard, and not by a change in circumstances standard.

Section 3109.04(E)'s change-of-circumstances standard does not govern a parent's motion to regain custody from a nonparent when the earlier custody transfer was not based on parental unsuitability.

Culp v. Burkhart, Unpublished Decision (8-13-2004) · filed 2004-08-13(E)

We decline to reconsider our position in Hollowell, and find the standards of R.C. 3109.04 (E) are not applicable sub judice.

Section 3109.04(E)(1)(a) does not treat a diagnosis after a prior parenting order, by itself, as a change of circumstances warranting consideration of the child’s best interests when symptoms predated the order and remain mild.

Kubin v. Kubin, Unpublished Decision (3-7-2005) · filed 2005-03-07(E)(1)(a)

Consequently, although the diagnosis occurred after the prior allocation of parental rights and responsibilities, we find that the trial court did not abuse its discretion when it determined that the diagnosis alone does not constitute a change of circumstances warranting further consideration of the child's best interests under R.C. 3109.04 .

Section 3109.04(E)(1)(a) limits modification of a prior custody order when the movant presents no evidence of a change in circumstances relevant to the later modification request.

In Re Logwood, Unpublished Decision (7-11-2005) · filed 2005-07-11(E)(1)(a)

Also, the lack of change in circumstances required by R.C. 3109.04 would relate to the matters before the Court as to the decision issued in November, 2004, not to such prior decision. {¶ 22} The record of the November hearing is devoid of evidence from Appellant to such effect and such statute would therefore limit the trial court's action in modifying the unappealed Order of August, 2003, as the statutory argument is adverse to Appellant rather than in her favor, {¶ 23} Further, we find nothing in the record indicating that the trial court acted unconscionably or arbitrarily.

Section 3109.04(E)(1)(a) measures a change in circumstances from the prior custody decree, so the court may consider facts arising before the motion to modify custody was filed.

Jackson v. Herron, Unpublished Decision (8-5-2005) · filed 2005-08-05(E)(1)(a)

The trial court's definition of the relevant time period comports with the provision of the Revised Code, which states that the change of circumstances must be "based on facts that have arisen since the prior decree." R.C. 3109.04 (E)(1)(a). Jackson is incorrect that the trial court may only consider facts arising after the date a motion for change of custody is made.

A modification of parental rights and responsibilities requires a substantive change in circumstances; an isolated physical altercation without a pattern of abuse does not establish one.

Adams v. Adams, Unpublished Decision (8-23-2005) · filed 2005-08-23(E)(1)(a)

In the case at bar, after our review of the record we conclude that the trial court did not abuse its discretion by determining that appellant failed to establish that a change in circumstances occurred so as to warrant a modification of the parental rights and responsibilities. The alleged change, that appellee and the child had a physical altercation, is not one of substance.

A parent allowing a recently paroled partner to use the home, coupled with uncertainty about whether he lives there with the child, can constitute a change in circumstances under § 3109.04(E)(1)(a).

John A.L. v. Sheri B., Unpublished Decision (10-7-2005) · filed 2005-10-07(E)(1)(a)

Thus, we find no abuse of discretion in the conclusion that a change in circumstances occurred when appellant chose to allow Adams to be paroled to her home and questions arose as to whether Adams was residing with appellant and the child.

Section 3109.04(E)(1)(a) measures changed circumstances from the prior decree allocating parental rights; dismissal of an intervening custody-modification motion is not that decree.

Gaines v. Pelzl, Unpublished Decision (4-23-2004) · filed 2004-04-23(E)(1)(a)

The statute's reference to the "prior decree" means the prior decree that allocated parental rights. In the present case, the trial court filed that decree on July 5, 2001, when it designated Pelzl as the residential parent. The trial court's later dismissal of Gaines' first motion for a change of custody, at his request, did not constitute a decree that allocated parental rights.

Section 3109.04(E)(1)(a) requires a change in the circumstances of the child or residential parent before a prior allocation of parental rights may be modified in this non-shared-parenting case.

Vocaire v. Beltz, Unpublished Decision (11-10-2003) · filed 2003-11-10(E)(1)(a)

We find appellant's affidavit fails to aver the occurrence of a change in the circumstances of the child or the child's residential parent pursuant to R.C. 3109.04 (E)(1)(a).

Section 3109.04(E) requires an evidentiary basis for determining changed circumstances and the child’s best interest when deciding whether to modify parental rights and responsibilities.

Green v. Green, Unpublished Decision (1-20-2004) · filed 2004-01-20(E)

All of this information would be relevant as to whether a change in circumstances existed as required by R.C. 3109.04 (E) and/or whether a modification was in the child's best interest. The magistrate elected to deny the motion for a reallocation of parental rights and responsibilities but did so without conducting an evidentiary hearing to permit the parties to present their evidence and to bring all of the relevant and necessary facts before the court. Thus, the magistrate made a decision without any evidentiary support for that determination.

A residential parent’s remarriage and move may establish changed circumstances under § 3109.04(E)(1)(a), but parental rights need not be modified unless the change serves the child’s best interest.

Miller v. Miller, Unpublished Decision (5-10-2004) · filed 2004-05-10(E)(1)(a)

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, * * * and that the modification is necessary to serve the best interest of the child. ... The trial court found that a change of circumstances in the life of the residential parent had occurred since she had remarried and moved to Indiana. ... Given this evidence, the trial court could reasonably conclude that although a modification of parenting time was in the best interest of the child, a modification of parental rights and responsibilities was not.

Section 3109.04(E)(1)(a) requires a change in circumstances before a court may modify a prior allocation of parental rights and responsibilities, and alleged school tardiness that was not proved does not satisfy that requirement.

Oleksy v. Oleksy, Unpublished Decision (10-23-2003) · filed 2003-10-23(E)(1)(a)

R.C. 3109.04 (E)(1)(a) provides that the court shall not modify a prior decree allocating parental rights and responsibilities for the care of a child 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 modification is necessary to serve the best interest of the child. ... Here, defendant failed to show that there was any change in circumstances warranting a modification of the original parenting plan.

Section 3109.04 requires a change in circumstances since the prior decree before a court may reallocate parental rights and responsibilities.

Clifton v. Clifton, Unpublished Decision (12-22-2003) · filed 2003-12-22(E)(1)(a)

Before a trial court can reallocate parental rights and responsibilities, R.C. 3109.04 requires the court to first find that a change in the circumstances of the child, the residential parent, or either of the parents has occurred since the time of the prior decree.

Section 3109.04(E)(1)(a) permits several changes in a residential parent’s circumstances to establish the required material change when considered together, even if no single change would suffice.

Font v. Morris, Unpublished Decision (5-10-2004) · filed 2004-05-10(E)(1)(a)

While none of these changes if viewed independently would necessarily constitute a change as contemplated under R.C. 3109.04 (E)(1)(a), when viewed collectively, it is clear that a change of substance had occurred.

Section 3109.04(E)(1)(a) permits a change in the residential parent’s circumstances to satisfy the change-of-circumstances requirement for modifying parental rights.

Hostetter v. Cotton, Unpublished Decision (6-30-2004) · filed 2004-06-30(E)(1)(a)

As set forth in R.C. 3109.04 (E)(1)(a), the "change of circumstances" may be the child's circumstances or the child's residential parent's circumstances.

When both parents seek modification or termination of a shared parenting decree, § 3109.04(E)(1)(a) does not require the trial court to make a specific finding of changed circumstances.

In Re Wright, Unpublished Decision (2-3-2003) · filed 2003-02-03(E)(1)(a)

By such joint action, they relieved the trial court of the obligation to make a specific finding of a change of circumstances.

Section 3109.04(E)(1)(a)'s change-in-circumstances requirement can be satisfied by evidence that a parent created a climate of hostility toward the other parent that undermined the children's best interests.

Fetty v. Fetty-Omaits, Unpublished Decision (2-4-2003) · filed 2003-02-04(E)(1)(a)

Therefore, we must then determine under R.C. § 3109.04 (E) whether a sufficient change of circumstances has occurred to warrant residential parenting status modification. ... In this case, sufficient evidence was presented that appellant had created a climate of hostility which was, if believed by the trial court, being superimposed over the best interests and welfare of the children, thereby constituting a sufficient change of circumstances under the statutory mandates.

Section 3109.04(E)(1)(a) allows a court to use an earlier divorce decree as the prior decree for assessing changed circumstances when a later custody order is absent from the record.

Bland v. Bland, Unpublished Decision (2-26-2003) · filed 2003-02-26(E)(1)(a)

As there is no such decree in the record, the trial court appropriately used the March 1998 divorce decree as the "prior decree" from which to determine whether there was a change in circumstances warranting a change in custody.

An interstate move may or may not be a change in circumstances sufficient to modify shared parenting, depending on its effect on the children.

Murphy v. Murphy, Unpublished Decision (6-27-2003) · filed 2003-06-27(E)(1)(a)

An interstate move such as in this case may or may not constitute a change in circumstances sufficient to modify a shared parenting agreement as the effect on the child or children is of paramount concern.

A parent's pattern of behavior aimed at alienating the child from the other parent can support a change-of-circumstances finding under § 3109.04(E)(1)(a).

In Re Jones, Unpublished Decision (9-8-2003) · filed 2003-09-08(E)(1)(a)

When considering Charles's motion to change custody, the trial court first determined whether a change had occurred in Malinda's or Linda's circumstances pursuant to R.C. 3109.04 (E)(1)(a). The trial court found that there was a change of circumstances because "the mother has engaged in a pattern of behavior which is detrimental to the child's well-being. The mother has attempted to alienate Malinda from her father because of mother's animosity toward Mr. Jones. Mother's accusations are baseless and contrary to Malinda's best interest in maintaining a positive relationship with both of her parents." After thoroughly reviewing the record, we find the trial court did not abuse its discretion in making this finding.

Section 3109.04(E)(1) requires a change of circumstances before modifying a prior decree allocating parental rights and responsibilities, but does not impose that requirement when no prior custody or paternity decree exists.

In Matter of Mefford, Unpublished Decision (1-24-2003) · filed 2003-01-24(E)(1)

However, R.C. 3109.04 (E)(1) explicitly states that the change of circumstances requirement applies only where there is a prior decree allocating parental rights and responsibilities. In the instant case, no prior decree establishing custody or paternity existed. Since no such decree existed, the trial court was correct to not utilize R.C. 3109.04 (E)(1)'s change of circumstances limitation but to determine custody based on the best interests of the child.

Section 3109.04(E)(1)(a) requires a change in circumstances before a court may modify custody; without one, no further analysis is required.

Hinton v. Hinton, Unpublished Decision (5-28-2003) · filed 2003-05-28(E)(1)(a)

Thus, the threshold inquiry is whether a change of circumstances occurred since the prior decree that would warrant a change of custody. If no change in circumstances occurred, the requirements for a change of custody cannot be satisfied, and no further analysis is required.

Section 3109.04(E)(1)(a) requires a change in circumstances before a court considers changing custody, and the trial judge’s finding is reviewed for abuse of discretion.

Davis v. Flickinger · filed 1997-02-12(E)(1)(a)

R.C. 3109.04 requires a finding of a “change in circumstances.” Such a determination when made by a trial judge should not be disturbed, absent an abuse of discretion.

Section 3109.04(B) treats circumstances as previously unknown based on what the court knew when it issued the prior custody decree, regardless of what the other party knew.

Wyss v. Wyss · filed 1982-04-01(B)

It is the court’s knowledge, or lack thereof, of circumstances at the time of the issuance of the decree that is important in determining whether facts have arisen which were unknown prior to the issuance of the decree. The fact that the adverse party knew of such circumstances is not relevant.

Section 3109.04(B)(1) requires a change in circumstances to modify an existing custody order; a move and less frequent visitation did not warrant a custody change on this record.

Pyle v. Pyle · filed 1983-09-19(B)(1)

Appellant did not present evidence to the referee which would support his position that the children’s home situation has changed since the original custody award except for the move to Columbus and less frequent visitations due to that move. ... The record amply supports the court’s conclusion that no change of custody was warranted under the circumstances presented.

A residential parent’s interference with the other parent’s visitation may be considered as part of the change in circumstances required to modify parental rights.

Holm v. Smilowitz · filed 1992-11-16(E)(1)(a)

It is a well-settled rule in Ohio that a custodial parent’s interference with visitation by a noncustodial parent may be considered as part of a “change of circumstances” which would allow for modification of custody.

A child’s progression from infancy to early adolescence is a sufficient change of circumstances to permit an inquiry into whether a custody change serves the child’s best interests.

Perz v. Perz · filed 1993-03-19(E)(1)(a)

The passage of the children from infancy to early adolescence is a sufficient change of circumstance to warrant an inquiry into the question of whether the interest of the children would best be served by their remaining with appellee, or by a change in custody.

Section 3109.04(E)(1)(a) requires a change in circumstances to modify custody, but the change need not be substantial.

Clyborn v. Clyborn · filed 1994-02-16(E)(1)(a)

The statute does not require a “substantial” change in circumstances.

Unsubstantiated allegations of sexual abuse can constitute a change of circumstances supporting modification of a prior custody award.

Beekman v. Beekman · filed 1994-10-25(E)(1)(a)

We agree with the holding in Barton, and find that unsubstantiated allegations of sexual abuse are a change of circumstances and may be grounds on which to modify a prior custody award.

Under § 3109.04(E)(1)(a), the passage of time during a significant period of a child’s life, combined with other pertinent factors, can establish the change in circumstances needed to reconsider custody.

Butler v. Butler · filed 1995-12-05(E)(1)(a)

Although we believe that a passage of time, alone, is not sufficient to find a change of circumstances and relitigate the issue of custody, we also believe that passage of time during a significant portion of a child’s life, combined with other pertinent factors, such as those presented here, supports a finding of a change of circumstances requiring further inquiry by a trial court.

Unsubstantiated allegations of sexual abuse are one factor in deciding whether circumstances have changed for a modification of parental rights and responsibilities.

Stover v. Plumley · filed 1996-08-23(E)(1)(a)

Rather, the unsubstantiated allegations of sexual abuse are only one factor that a court may consider when determining whether a change in circumstances has occurred.

Section 3109.04(E)(1)(a) requires a change of circumstances to modify a prior decree allocating parental rights and responsibilities; an initial custody award is governed by the best interest standard.

In Re Cloud, Unpublished Decision (5-19-1997) · filed 1997-05-19(E)(1)(a)

It is only where a prior decree allocates the parental rights and responsibilities for the care of children that the court must apply a change of circumstances standard in order to modify the prior decree.

Section 3109.04(E)(1)(a) requires a change in the child or residential parent to modify custody, except under a shared parenting decree; changes in a nonresidential parent alone do not suffice.

Khulenberg v. Davis, Unpublished Decision (8-25-1997) · filed 1997-08-25(E)(1)(a)

First, reasons three through seven are not valid reasons for a finding of a change of circumstances because they are changes in the nonresidential parent's circumstances (appellee). R.C. 3109.04 (E)(1)(a) requires a change of circumstances in the child or the residential parent except in a shared parenting decree.

Section 3109.04(E)(1)(a) requires a change in circumstances before a court considers whether to modify the allocation of parental rights and responsibilities.

Harter v. Harter, Unpublished Decision (2-26-1998) · filed 1998-02-26(E)(1)(a)

Accordingly, there must first be found a change in circumstances before deciding whether a change in the caretaking of the children is necessary.

Section 3109.04(E)(1)(a) requires a court considering a custody modification to address whether circumstances changed before considering the listed grounds for changing the residential parent.

Nusbaumer v. Cherry, Unpublished Decision (6-22-1998) · filed 1998-06-22(E)(1)(a)

We can assume the trial court did not find a "change of circumstances" since it denied appellant's motion for change of custody, however, we believe such an assumption is not permissible as the "change of circumstances" is one element that must be found before the court even addresses the elements set forth in R.C. 3109.04 (E)(1)(a)(i) through (iii).

Repeated interference with the other parent’s visitation can constitute the change in circumstances required to modify custody.

Clark v. Smith · filed 1998-12-08(E)(1)(a)

Based upon a review of the record, we cannot find that the trial court abused its discretion in determining that Rhonda’s repeated interference with Todd’s visitation constituted a change in circumstances under R.C. 3109.04.

Section 3109.04(E)(1)(a) permits a custody modification inquiry when a change in circumstances is substantial enough in substance to warrant considering the child’s best interest.

Jennifer M. v. John K., Unpublished Decision (1-22-1999) · filed 1999-01-22(E)(1)(a)

Upon consideration of the foregoing, this court cannot say that the trial court abused its discretion by finding, under the circumstances of this case, that a change of circumstance occurred which was of sufficient substance to warrant an inquiry into whether a change of custody is in Brandon's best interest.

A move from Ohio to Kansas can constitute a change of circumstances under § 3109.04(E)(1)(a), requiring a best-interest inquiry on a motion to modify custody.

In Re Sydney, Unpublished Decision (1-22-1999) · filed 1999-01-22(E)(1)(a)

We believe that under the facts of this case the move from Ohio to Kansas constituted a change of circumstance in Sydney's life and that it warranted a careful and thorough examination by the trial court of whether a modification of custody would be in the child's best interest.

Section 3109.04(E)(1)(a) permits a best-interest inquiry into modification of a shared parenting plan when conditions in the residential parent’s home support a finding of changed circumstances.

Dedic v. Dedic, Unpublished Decision (1-27-1999) · filed 1999-01-27(E)(1)(a)

Upon a review of the record, we do not find that the trial court abused its discretion when it found that a change in circumstances had occurred to warrant a best interest of the child inquiry as provided for by R.C. 3109.04 (E)(1)(a).

A change of circumstances warranting custody modification under § 3109.04(E)(1)(a) must be substantive rather than slight or inconsequential; a finding of no significant change can express that standard.

Silvis v. Silvis, Unpublished Decision (3-27-1998) · filed 1998-03-27(E)(1)(a)

As previously explained, we have concluded that the trial court did not err by finding that there has been "no significant change of circumstances" since the divorce decree of July 29, 1996. Per Davis , we perceive this terminology to be equivalent to that of a "change of substance, not a slight or inconsequential change" and thus consistent with the requirement of R.C. 3109.04 (E)(1)(a).

Section 3109.04(E)(1)(a) requires a change of circumstances to modify a prior custody decree; an initial custody allocation is governed by the best interests of the child.

Matter of Sherrick v. Sherrick, Unpublished Decision (5-8-1998) · filed 1998-05-08(E)(1)(a)

Initial custody awards are governed by R.C. 3109.04 (B)(1), which requires the trial court to utilize the "best interests of the child" test. However, modifications of prior custody decrees are governed by R.C. 3109.04 (E)(1)(a), which prohibits a modification unless the trial court finds "* * * 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." ... Under the facts of this case, we conclude that the trial court did not err by failing to utilize the "change of circumstances" requirement of R.C. 3109.04 (E) when allocating the parties' parental rights.

Section 3109.04(E)(1)(a) permits evidence supporting a change in circumstances only if the facts arose after the prior custody decree or were unknown to the court when it entered that decree.

Bell v. Bell, Unpublished Decision (6-5-1998) · filed 1998-06-05(E)(1)(a)

We agree with the magistrate that the ability to present facts unknown to the court relates to the branch of R.C. 3109.04 (E)(1)(a) that forbids modification of custody unless a change in circumstances is shown. The rationale for requiring proof of changed circumstances is to give children stability and to prevent re-litigation of custody issues. See, e.g. Waggoner v. Waggoner (1996), 111 Ohio App.3d 1 , 5 , discretionary appeal not allowed, 77 Ohio St.3d 1445 , and Moyer v. Moyer (Dec. 17, 1996), Franklin App. No. 96APF05-659, unreported. The statute promotes these goals by restricting evidence to facts that were either unknown to the court at the time of the custody decree or arise thereafter.

Section 3109.04(E)(1)(a) requires a finding of changed circumstances before a court modifies a prior decree allocating parental rights and responsibilities.

In Re Carter, Unpublished Decision (7-20-1998) · filed 1998-07-20(E)(1)(a)

Thus, as there was a prior decree allocating the parental rights and responsibilities for the care of Ellie, the trial court was required to find that a change of circumstances had occurred before changing legal custody from Michael to Ketha.

Section 3109.04(E)(1)(a) requires a substantive change of circumstances for custody modification; a noncustodial parent’s improved schooling and employment alone do not satisfy that requirement.

Lashlee v. Dear, Unpublished Decision (12-11-1998) · filed 1998-12-11(E)(1)(a)

While she should be commended for her achievements, we find that these changes are not of a nature that the legislature contemplated as sufficient to interfere with the stability established by the custodial status of the child.

Section 3109.04(E)(1)(a) requires a change of circumstances before the court must weigh the likely harm of a custody change against its advantages under division (iii).

Nusbaumer v. Cherry, Unpublished Decision (4-26-1999) · filed 1999-04-26(E)(1)(a)(iii)

Our interpretation R.C. 3109.04 (E)(1) indicates the trial court does not need to address the weighing test concerning the harm versus the advantages, as a result in the change of environment, if the trial court does not first find a change of circumstances. Under R.C. 3109.04 (E)(1)(a), the trial court must first find a change of circumstances and determine that the modification is necessary to serve the best interests of the child. A trial court can only change custody when it finds such a change would be in the best interests of the child and finds the harm likely to be caused by the change of environment is outweighed by the advantages of the change of environment. Since the trial court did not find a change of circumstances, it was not necessary for the court to do the balancing test set forth in R.C. 3109.04 (E)(1)(a)(iii).

Section 3109.04(E) requires a demonstrated change in circumstances before a court may consider modifying custody.

Rodriguez v. Rodriguez, Unpublished Decision (9-1-1999) · filed 1999-09-01(E)

R.C. 3109.04 (E) requires a finding of a change in circumstances in order to modify custody.

A child’s newly identified developmental needs can constitute a change in circumstances supporting reallocation of parental rights under Section 3109.04(E)(1).

In Re Edgington, Unpublished Decision (6-10-1999) · filed 1999-06-10(E)(1)

These special needs create a different circumstance than was present when the original decree was made.

Section 3109.04(E)(1)(a) requires a change in circumstances to modify an existing parental-rights decree, but does not impose that requirement on an initial allocation where no prior decree exists.

Anthony v. Wolfram, Unpublished Decision (9-29-1999) · filed 1999-09-29(E)(1)(a)

R.C. 3109.04 (E)(1)(a), which governs modification of an existing decree allocating parental rights and responsibilities, requires a demonstration that there has been a change in circumstances brought about by facts that have changed since the date of the prior decree or which were unknown to the movant at that time. ... Although Sky resided with Ms. Anthony from birth, an allocation of parental rights and responsibilities had not been entered by the trial court. The trial court recognized that R.C. 3109.042 places unmarried parents on an "equality" in an initial allocation of parental rights, but determined that Mr. Wolfram failed to demonstrated a change in circumstances as mandated by R.C. 3109.04 (E)(1)(a). This analysis was incorrect.

Section 3109.04(E)(1)(a) permits a change-in-circumstances finding based on a residential parent’s interference with visitation and failure to comply with a shared parenting plan.

Knight v. Knight, Unpublished Decision (9-29-1999) · filed 1999-09-29(E)(1)(a)

McDonnell knowingly interfered with Knight's visitation rights by taking Summer to a baseball game, instead of being home to transfer Summer to the Knight family, on the day that Susan Knight flew to Texas to pick up Summer. McDonnell further failed to comply with the shared parenting plan by sending Summer to Ohio to visit her maternal grandparents without informing Knight. Each of the above events represents a change in circumstances since the prior decree allocating parental rights and responsibilities. We find that these facts constitute a substantial amount of competent, credible evidence supporting the trial court's determination that a change in circumstances occurred.

Section 3109.04(E)(1)(a) permits several changes in a child’s or residential parent’s circumstances to be considered together when deciding whether a change of circumstances warrants inquiry into a custody modification.

Carter v. Carter, Unpublished Decision (10-20-1999) · filed 1999-10-20(E)(1)(a)

Although any one of those factors, by itself, might not suffice to constitute a change of circumstances under which modification of custody may be considered, the cumulative impact of those factors supports a finding of a change of circumstances warranting further inquiry into whether the best interest of the children would be served by a change of custody.

Section 3109.04(E)(1)(a) treats removal of a child from the residential parent’s home to protect the child from physical abuse by a stepparent as a change in circumstances that can warrant a custody change.

In Re Carter, Unpublished Decision (11-8-1999) · filed 1999-11-08(E)(1)(a)

The court then found that a change of circumstances occurred when BCCSB removed Ellie from Michael's home to protect her from physical abuse by her stepmother. As such, we find that a change of circumstances has occurred within the meaning of R.C. 3109.04 (E)(1)(a) to warrant a change in custody.

Section 3109.04(E) treats an agreed entry modifying visitation as a prior decree allocating parental rights and responsibilities when the entry implicitly denies a pending motion to change custody.

Davis v. Elfers, Unpublished Decision (11-15-1999) · filed 1999-11-15(E)

As a result, we find that the 1996 agreed entry was a prior decree allocating parental rights and responsibilities under R.C. 3109.04 (E).

Section 3109.04(E)(1)(a) does not treat an anticipated move within the county and enrollment in new schools as a change in circumstances warranting a custody modification.

Sullivan v. Sullivan, Unpublished Decision (12-8-1999) · filed 1999-12-08(E)(1)(a)

Furthermore, relocation of the children within the county and enrollment in new schools did not constitute changed circumstances under R.C. 3109.04 , especially, as the trial court noted, in light of the parties' anticipation of such a move in their visitation schedule.

A custodial parent’s interference with visitation may be considered as a change in circumstances and as a factor in the child’s best interest when modifying custody.

Fox v. Fox, Unpublished Decision (8-30-1999) · filed 1999-08-30(F)(1)(f),(i)

However, in Ohio, it is well settled that interference with visitation rights by the custodial parent may be considered both as a change in circumstances, and as a factor in determining the best interest of a child in modifying the allocation of parental rights.

A residential parent’s relinquishment of parental responsibilities to a grandparent and interference with the other parent’s relationship with the child can constitute changed circumstances supporting a custody modification under § 3109.04(E)(1)(a).

Smith v. Baker, Unpublished Decision (12-10-1999) · filed 1999-12-10(E)(1)(a)

As indicated by the magistrate's findings, appellant relinquished his parental responsibilities to his mother and hindered appellee's relationship with the child. Based upon these changed circumstances and the guardian ad litem's report, we find the trial court did not err in granting custody of the child to appellee.

Section 3109.04(E)(1)(a) requires a custody modification based on preexisting facts to rest on facts unknown to the court when it entered the prior decree; an expert’s later review of those facts does not suffice.

Beatley v. Block, Unpublished Decision (4-25-2000) · filed 2000-04-25(E)(1)(a)

While appellant claims that the tape recording of the girls' conversation with the judge constitutes new facts, as Dr. Virgil had not listened to the tape prior to testifying, R.C. 3109.04 requires that the facts be unknown to the court at the time of the prior decree.

Section 3109.04(E)(1)(a) requires a change of circumstances only when a court modifies a prior decree allocating parental rights and responsibilities.

In Re Nared, Unpublished Decision (1-18-2000) · filed 2000-01-18(E)(1)(a)

A change of circumstances standard must be applied only where a prior decree has allocated parental rights and responsibilities and the trial court has been asked to modify that decree.

A residential parent's drug addiction and criminal activity can be a change in circumstances warranting renewed consideration of the children's best interests.

Brandle v. Brandle, Unpublished Decision (3-10-2000) · filed 2000-03-10(E)(1)(a)

Although the trial court did not identify a specific change, we infer that the trial court viewed Cross's drug addiction and criminal activity as a change in circumstances justifying a renewed look at the best interest of the children. We agree with this assessment.

Section 3109.04(E)(1)(a) permits a court to consider a child’s wishes when deciding whether circumstances have changed enough to modify custody.

Wangugi v. Wangugi, Unpublished Decision (4-12-2000) · filed 2000-04-12(E)(1)(a)

While we do not necessarily believe that a child's preference should alone determine whether a change in circumstance has occurred, we believe a trial court may properly consider the child's wishes when determining whether a change in circumstance has occurred.

Section 3109.04(E)(1)(a) requires a change in circumstances arising after the prior decree or unknown when it was issued; a custody change caused by that decree alone does not qualify.

Price v. Price, Unpublished Decision (4-13-2000) · filed 2000-04-13(E)(1)(a)

A plain reading of this statute indicates that only changes occurring after the decree are relevant and those occurring prior to or at the time of the decree are not included, unless the changes were unknown to the court. Here, the change in custody occurred at the time the decree was issued even if Whitlee did not begin to reside with appellee immediately. Appellant is asking this Court to rule that the statute includes not only changes occurring after the decree but changes resulting from the decree. We cannot make such a finding without ignoring the unambiguous statutory language.

Section 3109.04(E)(1)(a) allows a custody modification when the trial court makes sufficient findings showing a change in circumstances, even without using the statute’s exact words.

Lyle v. Kersey, Unpublished Decision (6-30-2000) · filed 2000-06-30(E)(1)(a)

Where, in a case such as this, the trial court makes sufficient factual findings that reflect a change of circumstances supporting its decision, we will not reverse the trial court for failure to use the exact words of the statute. Under R.C. 3109.04 (E)(1)(a), nomenclature is not the key issue.

A parent’s desire to move out of state, by itself, is not a substantial change in circumstances permitting modification of a shared parenting plan under § 3109.04(E)(1).

Lockom v. Lockom, Unpublished Decision (8-18-2000) · filed 2000-08-18(E)(1)

Reviewing the facts of this case in light of the applicable law, the lower court first held that because appellant's proposed move to Chicago was not a substantial change in circumstances, the court could not modify the shared parenting plan pursuant to R.C. 3109.04 (E)(1). We agree. It is well-settled that "[t]he filing of a motion to remove the child from Ohio that merely reflects the mother's `desire' to leave the state does not on its own constitute a substantial change in circumstances under * * * R.C. 3109.04 ." Masters v. Masters (1994), 69 Ohio St.3d 83 , 86 .

A change of circumstances for modifying parental rights is measured from the prior order allocating parental rights and responsibilities, even if the court later denied a motion to change custody.

Pathan v. Pathan, Unpublished Decision (9-15-2000) · filed 2000-09-15(E)(1)(a)

R.C. 3109.04 (E)(1)(a), however, requires a change of circumstances since the prior order allocating parental rights and responsibilities . In this case, the prior order allocating parental rights and responsibilities was the 1993 divorce decree.

Unfounded allegations of sexual abuse may amount to a change of circumstances supporting a custody modification, but do not establish one automatically.

Wheeler v. Wheeler, Unpublished Decision (10-20-2000) · filed 2000-10-20(E)(1)(a)

We agree with Lori Wheeler that both concurring judges in Beekman made clear that Judge Grey's statement in the lead opinion "that unsubstantiated allegations of sexual abuse are a change of circumstances and may be grounds on which to modify a prior custody award" should not take on the status of a per se rule. Nevertheless, there can be little doubt that unfounded allegations of sexual conduct may arise to the level of a change of circumstances, and we find no abuse of discretion on the part of the magistrate in so concluding in this case.

A residential parent’s refusal to let a child associate with relatives with whom the child previously had a good relationship can constitute a change in circumstances under § 3109.04(E)(1)(a).

Doskoch v. Giffin, Unpublished Decision (12-21-2000) · filed 2000-12-21(E)(1)(a)

Thus, appellant's subsequent refusal to allow Melissa to associate with her grandparents and her aunt was clearly a change in circumstances. pursuant to R.C. 3109.04 (E)(1)(a).

When a shared-parenting decree designates a residential parent, a court considering a change in primary custody must determine whether circumstances changed since the prior decree.

Patton v. Patton · filed 2001-03-06(E)(1)(a)

In the case herein, the record reveals that the appellee was the residential parent and legal custodian of Caitlyn at the time of the hearing. Therefore, the trial court was required to consider whether a change in circumstances of the child, his residential parent, or either of the parents had occurred since the time of the prior decree.

Section 3109.04(E)(1)(a) permits a finding of changed circumstances when a residential parent unilaterally and inexcusably excludes the other parent from contact with the children.

Headley v. Headley, Unpublished Decision (9-29-2000) · filed 2000-09-29(E)(1)(a)

When the residential parent, unilaterally and inexcusably, seeks to cut out and exclude the other from contact with the minor children, a change of circumstance has taken place.

A proposed out-of-state move does not warrant modifying custody under § 3109.04 without a change in circumstances affecting the child.

Hetterich v. Hetterich, Unpublished Decision (4-9-2001) · filed 2001-04-09(E)(1)(a)

Considering the evidence presented, we find that the trial court did not abuse its discretion by finding that the proposed move did not amount to a change of circumstances warranting further inquiry into the motion to modify custody.

Speculative future health care expenses do not establish the change in circumstances required to modify a shared parenting decree.

Cooper v. Cooper, Unpublished Decision (4-18-2001) · filed 2001-04-18(E)(1)(a)

Therefore, while Appellant may hypothesize about costs which may arise in the future, such speculation does not constitute a change in circumstances.

Repeated interference by a custodial parent with the other parent’s visitation can constitute a change in circumstances under § 3109.04(E)(1)(a).

Sabins v. Sabins, Unpublished Decision (04-27-2001) · filed 2001-04-27(E)(1)(a)

In the instant case, Jeffrey presented sufficient evidence of Holly's repeated interference with his visitation with Dustin for the court to determine that this amounted to a change of circumstances. As stated above repeated interference by a custodial parent, Holly, with a non-custodial parent, Jeffrey's, visitation with the child amounts to a change of circumstances.

A change in circumstances supporting modification of a prior custody decree must be consequential and relate to the child’s welfare.

Beaver v. Weaver · filed 2001-05-25(E)(1)(a)

Thus, not only must the change of circumstances be of consequence, but it also must relate to the child’s welfare.

Section 3109.04(E)(1)(a) permits a finding of changed circumstances when one parent will not cooperate with the other in a shared parenting plan.

In the Matter of Powell, Unpublished Decision (6-8-2001) · filed 2001-06-08(E)(1)(a)

A trial court is justified in finding a change of circumstance has taken place when one parent will not cooperate with the other.

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

Wilburn v. Wilburn · filed 2001-06-15(E)(1)(a)

Because the trial court did not err in finding no change of circumstances, it did not need to consider Kaitlyn’s best interests before overruling Kenneth’s motion for a change of custody.

Changes in family structure, parental distance, visitation, and the child can collectively satisfy the material change in circumstances required for custody modification.

Given v. Sanzone, Unpublished Decision (7-25-2001) · filed 2001-07-25(E)(1)(a)

The record establishes that there had been changes in the family structure, the geographical proximity of the parties, in visitations, and in Brian, which, when viewed collectively, constitute a material change, or a "change in substance."

A substantial passage of time during a child’s life, combined with other factors, can establish the change in circumstances required to modify parental rights; passage of time alone cannot.

Noble v. Noble, Unpublished Decision (9-20-2001) · filed 2001-09-20(E)(1)(a)

We have previously held that a passage of time, alone, is not enough to justify a finding of a change in circumstances; however, a passage of time during a significant portion of a child's life, combined with other factors, such as the ones listed above, supports a finding that a change has occurred.

Section 3109.04(E)(1)(a) permits consideration of facts predating the prior decree when those facts were unknown to the court at the time of that decree.

Wallace v. Taylor, Unpublished Decision (04-16-2001) · filed 2001-04-16(E)(1)(a)

Further, the record contains no mediation report or other record of hearings in which the challenged facts were presented to the trial court. Therefore, we find that the trial court did not commit reversible error when it found that the challenged facts were not before the trial court and relied upon those facts in determining whether a "change of circumstances" occurred.

Section 3109.04(E)(1)(a) requires a change in circumstances of sufficient magnitude before a court considers the remaining requirements for modifying custody.

Feasel v. Stetler, Unpublished Decision (6-4-2001) · filed 2001-06-04(E)(1)(a)

The trial court, in its entry of judgment, found that there was no "substantial change of circumstances which would effect [sic] the prior parenting decree," and we agree that there was not a change of circumstances sufficient in magnitude to require the trial court to consider the second and third prongs of the test provided in R.C. 3109.04 (E)(1)(a).

When both parents are residential parents under a shared parenting order, Section 3109.04 requires a change in circumstances before the plan may be modified.

Heitkamp v. Heitkamp, Unpublished Decision (8-1-2001) · filed 2001-08-01(E)(1)(a)

According to R.C. 3109.04 (K)(6), unless the context clearly requires otherwise and except as otherwise provided in the order, each parent under a shared parenting order is considered the "residential parent and legal custodian" of the child. Thus, in the case herein, the record reflects that both parents are considered residential parents, and consequently, the trial court was required to determine whether a change in circumstances has occurred.

Section 3109.04(E)(1)(a) requires a threshold finding of changed circumstances before a court modifies a shared parenting plan based on the child’s best interests.

Snyder v. Snyder, Unpublished Decision (8-6-2001) · filed 2001-08-06(E)(1)(a)

A change of circumstances should have been shown before the trial court considered the best interest factors of R.C. 3109.04 3 and weighed whether the advantages of the change of environment outweighed the harm likely to be caused thereby. We must sustain the first assignment of error and reverse the trial court's decision to grant a modification of the shared parenting plan due to the failure to make a threshold finding of a change of circumstances.

Section 3109.04(E)(1)(a) requires a change in circumstances before parental rights can be modified, even when a parent proposes a shared parenting plan.

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

One parent cannot circumvent the threshold change of circumstances requirement by filing a proposed shared parenting plan.

Section 3109.04(E)(1)(a)'s change-of-circumstances test looks to the children and residential parent; a new spouse's conduct toward the spouse's own child does not itself qualify.

Saal v. Saal, Unpublished Decision (10-17-2001) · filed 2001-10-17(E)(1)(a)

In determining whether a change of circumstance has occurred, R.C. 3109.04 requires the court to look at the children and the residential parent. Nussbaum's actions with regard to his own child do not fall within the statute, as he is not the residential parent.

Section 3109.04(E)(1)(a) requires a change in circumstances before custody may be modified; allegations concerning problems already litigated did not require an evidentiary hearing merely because they identified later incidents.

Bebout v. Vittling, Unpublished Decision (11-19-2001) · filed 2001-11-19(E)(1)(a)

As a threshold issue, it is the trial court's duty to determine if in fact a change of circumstances has occurred. ... Although appellant's March 27, 2001 affidavit does allege incidents which occurred after any other hearings, it does in fact still center on Justin's unruliness and Ashley's dubious credibility. Based upon these facts and the difficult choices the trial court made, we find no abuse of discretion in denying an evidentiary hearing and finding no changed circumstances.

For an order outside shared parenting, § 3109.04(E)(1)(a) requires a change in the circumstances of the child or residential parent before custody may be modified; a change only in the nonresidential parent’s plans does not require an evidentiary hearing.

Wysong v. Wysong, Unpublished Decision (2-11-2002) · filed 2002-02-11(E)(1)(a)

The change of circumstance alleged by appellant is that she decided not to move out of state. This change of circumstance does not relate to either the residential parent, appellee, or the parties' children. Because appellant failed to allege a change of circumstances which would permit a modification of parental rights and responsibilities under R.C. 3109.04 , we find that the trial court did not abuse its discretion by finding no change of circumstances and denying an evidentiary hearing on the matter.

A change of circumstances supporting modification must relate to the child or residential parent; changes in the other parent’s living arrangement or work schedule do not suffice.

Lewis v. Lewis, Unpublished Decision (4-8-2002) · filed 2002-04-08(E)(1)(a)

We initially note that the change in circumstance must relate to the children or the children's residential parent. R.C. 3109.04 (E)(1)(a); Wysong v. Wysong (Feb. 11, 2002), Preble App. No. CA2001-06-011, unreported. The change in appellant's living arrangement and work schedule are not changes which relate to either the children or appellee, the residential parent, and thus do not constitute a change of circumstance warranting a modification of the prior allocation of parental rights and responsibilities.

Section 3109.04(E)(1)(a) requires a change in circumstances arising after the prior decree before a court may change the designated residential parent.

Decker v. Benedetto, Unpublished Decision (4-26-2002) · filed 2002-04-26(E)(1)(a)

We must conclude that the evidence in the transcript does not support a finding that a change in circumstances has occurred subsequent to the dissolution decree which warranted a change in the residential parent status as agreed to by appellee and therefore the requirement of R.C. § 3109.04 (E)(1)(a) has not been met and an abuse of discretion has occurred.

Section 3109.04(E)(1)(a) requires a material change in circumstances before a custody decree may be modified.

Saal v. Saal · filed 2001-10-17(E)(1)(a)

A “change of circumstances” is not defined by R.C. 3109.04; however, this court requires a material “change of circumstances.”