Court of Appeals of Ohio, First District, Hamilton
From: Hamilton County Juvenile Court Trial No. F15-441X
& Associates, LLC, and B. Bradley Berry, for Appellee.
Legal Service, LLC, and Jamie L. Turner, for Appellant.
CUNNINGHAM, PRESIDING JUDGE.
Appellant father challenges the judgment of the Hamilton
County Juvenile Court adopting the magistrate's decision
awarding legal custody of his minor child, V.B., to the
V.B. was born on October 18, 2009. While his parents were not
married at the time of his birth, they lived together and
raised V.B. for the next five years. V.B. suffers from
microcephaly and related developmental delays. He requires
frequent medical care and therapy. Mother often attended
these appointments. Father was the principal earner for the
After the couple separated, father filed a petition in
juvenile court seeking sole custody of V.B. The matter was
referred to a magistrate. During an extensive pretrial
period, father filed a proposed, but unsigned,
shared-parenting plan. Though she sought sole custody, in
response, mother filed her own proposed, unsigned
shared-parenting plan. But neither party separately filed a
pleading or motion seeking shared parenting as required under
R.C. 3109.04(G). V.B.'s guardian ad litem
("GAL") also filed a written report recommending
that shared parenting would be in V.B.'s best interests,
and expressing concern about whether mother would fully
involve father in major decisions were she to be awarded
Following a three-day trial at which both parties and the GAL
testified, the magistrate issued a detailed written decision.
The magistrate noted that she was without authority to
consider the appropriateness of a shared-parenting plan
because neither parent had filed a pleading or motion
requesting shared parenting. After reviewing the relevant
statutory factors, the magistrate allocated the parental
rights and responsibilities for V.B.'s care to mother.
The magistrate also ordered that father have substantial time
with V.B. and included a detailed visitation plan in her
Father timely filed objections to the decision, challenging
whether the magistrate was precluded from issuing a
shared-parenting plan, and whether she had properly
considered the GAL's recommendations. The juvenile court
reviewed the complete record of the proceeding, overruled the
objections, adopted the magistrate's decision without
taking additional evidence, and entered judgment.
The two issues raised in father's objections form the
basis of the two assignments of error raised in this appeal.
Father first argues that despite his failure to file a
pleading or motion requesting shared parenting, under Ohio
common law the juvenile court retained full discretion to
adopt a shared-parenting plan and erred in failing to do so.
We must disagree.
The General Assembly has provided that the juvenile court
shall exercise its jurisdiction in child-custody matters not
under the common law but in accordance with R.C. 3109.04.
See R.C. 2151.23(F)(1); see also In re
Poling, 64 Ohio St.3d 211, 216, 594 N.E.2d 589 (1992);
In re M., R., & H. Children, 1st Dist. Hamilton
No. C-170008, 2017-Ohio-1431, ¶ 31.
Here, neither parent "file[d] a pleading or motion,
" as required under R.C. 3109.04(G), requesting the
court to grant both parents shared parental rights and
responsibilities for the care of V.B. Therefore, shared
parenting was not an issue before the court. See Rymers
v. Rymers, 11th Dist. Lake No. 2009-L-160,
2010-Ohio-6439, ¶ 24; see also Cuvar v. Cuvar,
2d Dist. Greene No. 08CA0056, 2009-Ohio-4114, ¶ 7. In
the absence of a shared-parenting pleading or motion, the
magistrate and the juvenile court were required to
"allocate the parental rights and responsibilities for
the care of the child to one of the parents." R.C.
the juvenile court did not err in refusing to award shared
parenting. The first assignment of error is overruled.
Father next contends that the magistrate and the juvenile
court failed to give full consideration to the GAL's
recommendations. In light of our resolution of the first
assignment of error, we cannot say that the magistrate and
juvenile court erred in failing to follow the GAL's
shared-parenting recommendation. But father also ...