[Cite as In re K.S., 2020-Ohio-6863.] 

Appeal From: Hamilton County Juvenile Court 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: December 23, 2020 

Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for AppellantMother, 

Berry & Karl, LLC, and Kristie A. Karl, for Appellee-Father. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: K.S. : 

: 

APPEAL NO. C-190754 

TRIAL NO. F16-2613 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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CROUSE, Judge.

{¶1} Mother appeals the decision of the Hamilton County Juvenile Court, 

adopting the shared-parenting plan proposed by father. For the reasons set forth 

below, we affirm the judgment of the juvenile court. 

I. Facts and Procedure 

{¶2} Mother and father are the parents of K.S., born on February 28, 2014. 

Mother and father were in a relationship from February 2013 to April 2016. The 

parties were never married. 

{¶3} On December 12, 2016, father filed a petition for visitation. Father 

alleged that mother had restricted his access to K.S. On January 3, 2017, mother 

filed an opposing petition for custody of K.S. Father then filed a petition for shared 

parenting in January 2017, and again in August 2017. 

{¶4} Prior to trial, the parties stipulated that shared parenting was in the 

best interest of K.S. Both parents submitted proposed shared-parenting plans. The 

parties differed on the parenting-time schedule, the right of first refusal for holiday 

time, the use of extended/vacation time, and additional parenting time for “special 

life events.” 

{¶5} Trial was conducted on nine different days, spanning over the course 

of 13 months. On June 10, 2019, the magistrate issued a written decision adopting 

the shared-parenting plan proposed by father. Mother filed timely objections to the 

decision. Following a hearing on the objections, the juvenile court adopted the 

magistrate’s decision with one modification. This timely appeal followed. 
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II. Law and Analysis 

{¶6} In her sole assignment of error, mother argues that the juvenile court 

erred in determining the parenting-time schedule and the conditions under which 

parenting time takes place. 

{¶7} “The discretion which a trial court enjoys in custody matters should be 

accorded the utmost respect, given the nature of the proceeding and the impact the 

court’s determination will have on the lives of the parties concerned. The knowledge 

a trial court gains through observing the witnesses and the parties in a custody 

proceeding cannot be conveyed to a reviewing court by a printed record.” Miller v. 

Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). Therefore, we review the 

juvenile court’s decision for an abuse of discretion. Id.; Cwik v. Cwik, 1st Dist. 

Hamilton No. C-090843, 2011-Ohio-463, ¶ 41. An abuse of discretion exists only if 

“the court's decision regarding the child’s best interests is not supported by 

competent, credible evidence.” In re D.M., 1st Dist. Hamilton No. C-140648, 2015-

Ohio-3853, ¶ 11. 

A.

{¶8} As a preliminary matter, mother challenges the juvenile court’s refusal 

to hear additional evidence related to changes in the parties’ work schedules. 

{¶9} The juvenile court generally has broad discretion in deciding whether 

to hear additional evidence. See Juv.R. 40(D)(4)(d). However, Juv.R. 40(D)(4)(d) 

limits the court’s discretion when “new evidence” arises after the magistrate’s 

decision, but before the juvenile court’s hearing on the objections. Maddox v. 

Maddox, 2016-Ohio-2908, 65 N.E.3d 88, ¶ 18-19 (1st Dist.). Juv.R. 40(D)(4)(d) 

provides: 
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In ruling on objections, the court shall undertake an independent 

review as to the objected matters to ascertain that the magistrate has 

properly determined the factual issues and appropriately applied the 

law. Before so ruling, the court may hear additional evidence but may 

refuse to do so unless the objecting party demonstrates that the party 

could not, with reasonable diligence, have produced that evidence for 

consideration by the magistrate. 

{¶10} Thus, Juv.R. 40(D)(4)(d) requires the court to accept additional 

evidence if the objecting party demonstrates that, with reasonable diligence, it could 

not have produced the evidence for the magistrate’s consideration. Maddox at ¶ 14. 

“[T]he crux of the analysis is whether the party was put on notice that they would be 

reasonably expected to introduce the evidence at the hearing before the magistrate. * 

* * If the party had notice that they would be reasonably expected to introduce 

evidence on the subject, then the trial court has discretion to accept or reject that 

evidence.” (Internal citations omitted.) Id. 

{¶11} Mother contends that she could not have produced evidence of 

changes to the parties’ work schedules for the magistrate’s consideration because the 

changes occurred after the time of trial. Mother argues that this evidence was 

relevant to the allocation of parenting time under the parenting schedule. However, 

it is clear that mother anticipated these changes and presented evidence of such 

before the magistrate. 

{¶12} In her objections, mother alleged that her work hours changed from 

12-hour day shifts (10:30 a.m. to 11:00 p.m.) to traditional day shifts (8:00 a.m. to 

5:00 p.m.). However, mother always maintained that her work schedule would 

change upon completion of her advanced education. In fact, it was mother’s position 
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at trial that her future work schedule would allow her to best provide for K.S.’s needs 

while father’s inconsistent work schedule made it difficult for him to provide 

structure and stability for K.S. 

{¶13} Although mother did not have a job offer at the time of trial, she 

adamantly insisted that the change in schedule was not speculative. Mother 

“guaranteed” that she would be offered “an office-type job Monday through Friday, 

like an eight to four-type.” Mother even fashioned her proposed parenting schedule to 

accommodate the anticipated work schedule, stating “I’ll be able to spend more time 

with him in the evening, * * * I can focus on [K.S.] and his best interest with the work 

schedule that I will be having in the future.” Therefore, the change in mother’s work 

schedule was not “new evidence” that could not have been produced for the 

magistrate’s consideration. 

{¶14} In her objections, mother also alleged that father’s work schedule 

changed to a third-shift schedule. However, at the time of trial, father was already 

working overnight shifts. A review of the record shows that father’s schedule 

alternated between 12-hour night shifts and 8-hour night shifts. Father testified that 

he predominately worked 12-hour shifts (from 6:15 p.m. to 6:45 a.m.) with one 8-

hour shift (from 10:45 p.m. to 6:45 a.m.) every other week. Therefore, the fact that 

father worked overnight hours was not “new evidence” that could not have been 

produced for the magistrate’s consideration. 

{¶15} Because mother could not demonstrate an inability to produce 

evidence related to changes in the parties’ work schedules before the magistrate, the 

juvenile court had discretion to accept or reject that evidence. Under these 

circumstances, we cannot find that the juvenile court abused its discretion when it 

refused to hear mother’s additional evidence. 
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B.

{¶16} Mother’s remaining arguments pertain to the juvenile court’s decision to 

adopt father’s proposed shared-parenting plan almost in its entirety. Mother argues 

that the allocation of parenting time and the conditions under which parenting time 

takes place, including a right of first refusal and use of extended parenting time, are 

not in the best interest of K.S. 

{¶17} R.C. 3109.04 governs the allocation of parental rights and 

responsibilities for the care of a child, including shared parenting. R.C. 3109.04 

instructs the court to consider the best interest of the child when allocating parental 

rights and responsibilities. In determining the best interest of the children, the juvenile 

court must consider all relevant factors, including, but not limited to: 

(a) “[t]he wishes of the child’s parents regarding the child's care”; 

(b) “the wishes and concerns of the child”; 

(c) “[t]he child’s interaction and interrelationship with the child’s parents, 

siblings, and any other person who may significantly affect the child’s best 

interest”; 

(d) “[t]he child’s adjustment to the child’s home, school, and 

community”; 

(e) “[t]he mental and physical health of all persons involved”; 

(f) “[t]he parent more likely to honor and facilitate court-approved 

parenting time rights”; 

(g) “[w]hether either parent has failed to make all child support 

payments”; 

(h) “[w]hether either parent or any member of the household of either 

parent previously has been convicted of or pleaded guilty to any criminal 
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offense involving any act that resulted in a child being an abused child or 

a neglected child”; 

(i) “[w]hether the residential parent or one of the parents subject to a 

shared parenting decree has continuously and willfully denied the other 

parent’s right to parenting time”; 

(j) “[w]hether either parent has established a residence, or is planning to 

establish a residence, outside this state.” 

R.C. 3109.04(F)(1). 

{¶18} Here, the juvenile court determined that both parties are loving, devoted, 

and capable parents of K.S. There were no concerns of substance abuse, criminal 

activity, or other similar issues. In addition, neither party planned to move outside the 

state. Thus, the main points of contention were the parties’ wishes and the parties’ 

inability to communicate with each other. 

{¶19} With respect to the parties’ wishes, the juvenile court found that both 

parents wanted to play a significant role in K.S.’s life. Mother wanted K.S. to spend the 

majority of his time with her. Mother claimed that K.S. was well adjusted to her home 

and was severely distraught after father’s parenting time increased. Mother’s 

proposed schedule recommended that mother have K.S. every Monday, Wednesday, 

Thursday, and Friday. 

{¶20} Contrary to mother’s allegations, the juvenile court found “no objective 

reasons to limit the child’s contact with his father.” Instead, the court found that 

K.S. was “well adjusted to the homes of both parents.” A review of the record shows 

competent, credible evidence supports the court’s finding. K.S.’s paternal aunt and 

paternal grandmother testified that K.S. was “a happy little boy” during father’s 

parenting time. The guardian ad litem also testified that K.S. was very relaxed and 
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comfortable at father’s home. In addition, K.S.’s daily school reports did not detail 

any behavioral issues after father’s parenting time increased. In light of the 

credibility of the witnesses and corroborating evidence from the school, the court 

determined that mother’s allegations against father were not supported by credible 

evidence. 

{¶21} On the other hand, father wanted K.S. to spend equal time with both 

parents. Father’s proposed schedule (and the one adopted by the court) was a two-week 

rotating schedule based on the parties’ work schedules. Father’s schedule recommended 

that father have K.S. on Monday, Tuesday, Wednesday, Saturday and Sunday in week 

one, and on Thursday and Friday in week two. However, mother took issue with father 

working during his parenting time. 

{¶22} Father testified that if he had to work during parenting time, then his 

mother would care for K.S. The juvenile court found that K.S. was very involved with the 

members of his paternal family. The record shows that K.S. was bonded with his 

paternal grandmother. The record also shows that K.S. was bonded with father’s two 

older children, his paternal siblings. According to father, K.S. is “pretty much attached” 

to his brother. Based on these circumstances, the juvenile court determined that it was 

in K.S.’s best interest to spend as much time as possible with both families. 

{¶23} With respect to the parties’ ability to communicate, the juvenile court 

found that mother had “a palpable hatred” toward father. The court described mother’s 

communications as “nasty and disrespectful.” The court continued, “She addresses 

[father] as though he is her child rather than a co-parent.” At trial, mother admitted that 

she did not like father and did not want to communicate with father. The testimony 

showed that the parties had engaged in settlement negotiations, participated in 
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mediation, attended therapy sessions, and tried to address concerns through Our Family 

Wizard—all to no avail. 

{¶24} Based on the lack of effective communication, the juvenile court required 

parenting time to take place under conditions with the least potential for conflict, i.e., 

the least amount of communication. Mother wanted a right of first refusal for 

holidays, a requirement that the parent take time off work to exercise extended 

parenting time, and a requirement that both parents agree to vacation days divided 

into less than one-week blocks. However, the court determined that such conditions 

required extensive communication between the parties and “may cause unnecessary 

conflict * * * that would not be in the best interest of the child.” 

{¶25} For the same reasons, the court adopted father’s “special life event” 

language with some modification. The “special life event” clause provided: “A 

Special Life Event shall override the ‘weekly’ and ‘holiday’ time allocation in this 

Plan[.] * * * ‘Special Life Event’ is defined as the wedding, funeral or graduation of 

the child’s parent, sibling, grandparent, aunt, uncle or first cousin.” 

{¶26} The court believed this provision would “allow [K.S.] to participate in 

important events in both families’ lives without causing conflict between the parties.” 

The court found no evidence that mother would facilitate a relationship between K.S. 

and father on her own volition. Rather, the court found that mother had “gone to 

extensive lengths to alienate [K.S.] from his father.” For example, the record shows that 

mother did not want K.S. to attend his paternal sister’s elementary school graduation 

because it conflicted with his weekly swimming lessons. Consequently, the juvenile 

court tailored and limited the “special life events” language to avoid unnecessary 

conflicts between the parties. 
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{¶27} Based on the evidence presented, the juvenile court determined that it 

was in K.S.’s best interest to spend as much time as possible with both parents. The 

court also determined that it was in K.S.’s best interest to have minimal conflict 

between the parties. The court appropriately considered and applied the factors 

listed in R.C. 3109.04(F)(1) in making those determinations. Under these 

circumstances, we cannot hold that the juvenile court’s decision constitutes an abuse 

of discretion. 

{¶28} We accordingly overrule mother’s sole assignment of error. 

III. Conclusion 

{¶29} Because we find that the juvenile court did not abuse its discretion in 

adopting father’s shared-parenting plan, we affirm. 

 Judgment affirmed. 

MYERS, P.J., and WINKLER, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.