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In re M.S.

Court of Appeals of Ohio, Eighth District

September 19, 2013

IN RE: M.S., JR. Minor Child [Appeal by M.S., Sr., Father]

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU 12120496

FOR APPELLANT M.S., Sr., pro se

FOR APPELLEE L.W., pro se

BEFORE: McCormack, J., Stewart, A.J., and Jones, J.

JOURNAL ENTRY AND OPINION

TIM McCORMACK, J.

(¶ 1} M.S., Sr., ("Father") appeals from a judgment of the Cuyahoga County Juvenile Court that allocated parental rights and responsibilities regarding his child and gave sole legal custody of the child to the child's mother, L.W. ("Mother"). Because the trial court should have held a hearing pursuant to the requirement of R.C. 3109.04(A) under the circumstances of this case, we reverse and remand the matter for further proceedings consistent with this opinion.

Substantive Facts and Procedural History

(¶2} Father and Mother have a child together, M.S., Jr., who was born in September 2010. They resided together until December 2012. Anticipating an imminent change in the couple's relationship, Father, pro se, filed an application on December 12, 2012, in the juvenile court for a determination of the custody of their child. In his affidavit, Father stated he has been a part of his son's daily life since he was born. However, the situation between him and the child's mother has changed, but he wishes to remain a part of his son's life regardless of what the future holds for him and the child's mother. Father also indicated he pays $602.15 in child support per month pursuant to a June 2011 administrative order.

(¶ 3} Shortly after Father filed the application, both Father and Mother moved out of the residence they had shared. The court set a mediation hearing for the custody matter. On January 10, 2013, a mediation took place and both Father and Mother signed a mediation agreement. Four days later, the mediation agreement was filed with the court.

(¶ 4} The mediation agreement provides that Mother has possession of the child on Monday and Tuesday, and Father, on Thursday and Friday. They rotate the possession of the child for Wednesday and the weekend. Mother and Father also rotate the possession of the child for all the holidays and special days, the exception being the child's birthday, which he spends with Father.

(¶ 5} Notably, although Mother and Father share the possession of the child equally, the agreement states Mother shall have sole legal custody, without any explanations.

(¶6} Three days after the mediation agreement was filed, on January 17, 2013, the juvenile court journalized a "Mediation Entry, " which adopted the agreement as the court's order. The entry stated that the terms of the mediation agreement are in the best interest of the child and it designated Mother to be the custodial and residential parent.

(¶7} Father filed, pro se, filed a timely appeal from the judgment.[[1]] His assignment of error states: "The error lies in the mediation agreement upon which the court order was based. The error in the mediation agreement was that it did not express the appellant's desire for equal residential and legal custody of [M.S. Jr.] ...


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