[Cite as In re D.K., 2023-Ohio-4148.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

IN RE: D.K. AND D.K. :

:

:

APPEAL NO. C-220587

TRIAL NO. F19-1553Z

O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 17, 2023

Eppley Legal Group and Mark C. Eppley for Appellant Mother,

Stagnaro Hannigan Koop, Co., L.P.A., and Michaela M. Stagnaro for Appellee 

Father.
OHIO FIRST DISTRICT COURT OF APPEALS

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WINKLER, Presiding Judge.

{¶1} In this legal-custody appeal, the juvenile court awarded legal custody 

of twins D.K.1 and D.K.2 (“the Twins”) to father. Mother now appeals, raising seven 

assignments of error, relating to issues including the use of an affidavit to remedy a 

recording error, purportedly tainting the juvenile court’s independent review of the 

magistrate’s decision and denying mother the due process of law. Following our 

review of the record and applicable case law, we overrule all seven assignments of error 

and affirm the judgment of the juvenile court.

Facts and Procedural History

I. Background

{¶2} This case has a long factual history1 replete with the contentiousness of 

two parents that simply cannot get along. We begin in the fall of 2017 on the dating 

app Tinder. There, mother and father matched and began a brief romance. For 

approximately a month, the couple dated, eventually resulting in mother discovering 

she was pregnant with the Twins. These children became the subject of a long-running 

custody dispute that began in 2018 and culminated in this appeal.

{¶3} The evidence around the beginning of mother’s pregnancy is unclear. 

Mother had informed father a few months after she discovered she was pregnant. At 

that time, she told father that he was not the Twins’ father. Instead, mother told her 

then-paramour that he was the Twins’ father, hoping that it would be him.

{¶4} Mother substantiated her claims by taking a DNA test while pregnant 

and claimed the results showed her then-paramour was indeed the Twins’ father. 

1 We note our task was made harder by the failure of appellant to cite to specific portions of the 

record. See 1st Dist. Loc.R. 16.1(A)(3)(c).
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Father requested the results of the test, but mother never produced them, claiming 

that she have lost the results and could not locate the company that performed the test 

to acquire a copy of the results.

{¶5} The Twins were born in June 2018, and mother initiated a childsupport proceeding as a condition of receiving government assistance. In 2019, a DNA 

test was conducted as part of that proceeding that established father’s legal paternity 

of the Twins and excluded mother’s then-paramour. By then, father had permanently 

moved to Wisconsin where his family lives and got engaged to his fiancée. Father filed 

a petition for custody of the Twins, and both parents secured counsel, beginning the 

juvenile court proceedings that are the subject of this appeal.

II. The juvenile court proceedings

{¶6} Both mother and father sought legal custody of the Twins. The juvenile 

court made efforts for mother and father to mediate and establish parenting time for 

father. The juvenile court issued an interim parenting-time order, but communication 

between the parents broke down as each parent accused the other of frustrating 

parenting the Twins.

{¶7} The proceedings became mired with discovery disputes, repeated 

recriminations, and long litigation. Mother accused father of making no effort to form 

a relationship with the Twins before his paternity was established in 2019. Father 

counters by accusing mother of frustrating his attempts to develop a relationship with 

the Twins and not responding to his requests for parenting time.

{¶8} The magistrate’s report cites a planned trip to Perfect North Slopes, a 

skiing resort in Indiana, as a representative example of the parents’ conflict. Father 

and mother agreed to meet at Perfect North Slopes for the Twins to spend the day with 
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father and his other children. Mother initially said she and the Twins were on their 

way, but after an hour, mother called and asked father to pick the Twins up. Father 

left the resort to meet mother, but she never showed up and later contacted father and 

apologized.

{¶9} After two years of litigation, the parties went before a magistrate for a 

trial on the Twins’ custody on May 17, 2021. At trial, father put on his case-in-chief, 

including testimony on direct-examination from father, father’s fiancée, and the 

Twins’ paternal aunt, and testimony from mother as if on cross-examination. After 

father’s case-in-chief, the magistrate recessed the court for lunch, pausing recording. 

When the trial resumed, mother put on her case-in-chief consisting of mother’s 

testimony only, but the magistrate did not resume the recording. Seven months later,

on January 22, 2022, the magistrate issued a decision summarizing all the testimony 

presented, granting father legal custody of the Twins and designating father as the 

residential parent. The magistrate set out a transition plan to move the Twins from 

mother’s care to father’s care.

{¶10} While preparing objections to the magistrate’s report, mother

discovered the magistrate’s recording error. Thus, there was no recording of mother’s 

case-in-chief or her direct-examination testimony for the juvenile court to review

when ruling on the objections while father’s case-in-chief was transcribed, including 

mother’s extensive testimony as if on cross-examination.

{¶11} When mother discovered this recording error, she moved to vacate the 

trial and requested that proceedings be reopened.2 Instead, the juvenile court ordered 

2 The magistrate who heard the trial had since left the juvenile court, so reopening proceedings 

would necessitate restarting with a new magistrate.
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that mother submit an affidavit that contained her missing testimony so as to complete 

the record. Mother did so and submitted 48 pages of testimony to support her 

objections. The juvenile court overruled mother’s objections and adopted the 

magistrate’s decision with additional analysis responding to the objections. Mother 

timely appealed the juvenile court’s judgment.

Law and Analysis

{¶12} Mother raises seven assignments of error, relating to issues arising 

from the juvenile court’s order to file an affidavit in lieu of the portion of the

proceedings that was not recorded and could not be transcribed as well as challenging 

the juvenile court’s best-interest determination, the manifest weight of the evidence, 

and requesting custody as a matter of law. For organizational clarity, we address the 

assignments of error out of order.

{¶13} As a general matter, “custody issues are some of the most difficult and 

agonizing decisions a trial judge must make. Therefore, a trial judge must have wide 

latitude in considering all the evidence before him * * * and such a decision must not 

be reversed absent an abuse of discretion.” Kane v. Hardin, 1st Dist. Hamilton No. 

C-180525, 2019-Ohio-4362, ¶ 6, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 

674 N.E.2d 1159 (1997). The term “abuse of discretion” implies that the trial court’s 

decision was unreasonable or arbitrary. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219, 450 N.E.2d 1140 (1983). “It is not sufficient for an appellate court to determine 

that a trial court abused its discretion simply because the appellate court might not 

have reached the same conclusion.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio2407, 972 N.E.2d 528, ¶ 14. Rather, an appellate court must affirm the decision below 

“unless the court has exercised its discretionary judgment over the matter in an 
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unwarranted way or committed legal error.” State v. A.S., 2022-Ohio-3833, 199 

N.E.3d 994, ¶ 5 (1st Dist.), citing Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio3304, 187 N.E.3d 463, ¶ 35.

I. The transcription error and the affidavit remedy

{¶14} In her fourth assignment of error, mother argues that the juvenile court 

erred when it required mother to submit an affidavit of the evidence presented that 

was not able to be transcribed. Juv.R. 40(D)(3)(b)(iii) and its civil analogue, 

Civ.R. 53(D)(3)(b), both require that objections to a magistrate’s factual findings be 

supported by a transcript of all the evidence submitted to the magistrate relevant to 

that finding or an affidavit of that evidence, if a transcript is not available. Mother 

argues this rule only allows a party to submit either a complete transcript or no 

transcript and an affidavit that contains the entire record. Under this interpretation, 

an affidavit cannot be used alongside an incomplete transcript to fill any holes in the 

transcript.

{¶15} Mother’s “all-or-nothing” interpretation is true where there is no 

available transcript at all. Gill v. Grafton Corr. Inst., 10th Dist. Franklin 

No. 10AP-1094, 2011-Ohio-4251, ¶ 8, 16 (holding appellant must submit an affidavit 

of evidence under analogous Civ.R. 53(D)(3)(b) where appellant’s indigency rendered 

the transcript unavailable). But mother’s interpretation falters when a partial 

transcript is available. Two appellate districts have endorsed curing recording 

malfunctions that render a transcript not available or not complete by submitting an 

affidavit that contains the missing portions. In re D.T., 9th Dist. Lorain 

No. 13CA010451, 2014-Ohio-2332, ¶ 37 (suggesting appellant should provide an 

affidavit containing portions of audiotape transcribed as “unintelligible”); Vogel v. 
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Campanaro, 2021-Ohio-4245, 180 N.E.3d 594, ¶ 31 (12th Dist.) (appellant must 

provide an affidavit detailing the events during 26-minute lapse in audio recording to 

properly object to a magistrate’s evidentiary ruling during that lapse).

{¶16} The situation here is similar to In re D.T. and Vogel. In both cases, 

recording errors rendered a transcript incomplete when parties filed objections to a 

magistrate’s order. In re D.T. at ¶ 37 (portions of the audio recording were transcribed 

as “unintelligible”); Vogel at ¶ 31 (no transcript of a 26-minute lapse in recording). 

Both appellate districts endorsed using an affidavit to supplement the incomplete 

transcript. In re D.T. at ¶ 37; Vogel at ¶ 31. The magistrate here stopped the recording 

during a recess and did not restart the recording, leaving mother’s direct-examination

testimony out of the transcript. Mother relied on that testimony to argue the 

magistrate’s decision was against the manifest weight of the evidence, like the 

appellant in In re D.T. did to make the same objection. We see no reason why we 

should not follow the interpretation of Juv.R. 40 laid out in In re D.T. and Vogel and 

permit a juvenile court to use an affidavit alongside an incomplete transcript to 

supplement the missing portion.

{¶17} Mother cites no case law where an Ohio court has prohibited this 

practice. Mother cites Bodor v. Fontanella to argue that an affidavit “cannot be used 

as a substitute for a transcript unless it refers to all the relevant evidence submitted to 

the magistrate, as compared to selected parts of the evidence” relevant to the 

objections. Bodor v. Fontanella, 11th Dist. Trumbull No. 2005-T-0091, 

2006-Ohio-3883, ¶ 22, citing Gladden v. Grafton, 10th Dist. Franklin No. 05AP-567, 

2005-Ohio-6476, and Naso-Draiss v. Peters, 9th Dist. Medina No. 03CA0086-M, 

2004-Ohio-1983. However, Bodor, as an Eleventh District opinion, is not binding on 
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this court and has the same precedential weight as In re D.T. and Vogel. Even if Bodor

was binding, Bodor is distinguishable because it analyzes the similar but repealed 

Civ.R. 53(E), and in Bodor there was no recording of the magistrate’s proceedings at 

all and thus no transcript, as opposed to the partial transcript here. Thus, In re D.T. 

and Vogel are more applicable here and we find their approach more persuasive.

{¶18} Consequently, we overrule mother’s fourth assignment of error.

II. Due-process implications of the affidavit

{¶19} In her fifth assignment of error, mother argues that the juvenile court 

deprived her of procedural due process when it required mother to submit an affidavit 

of her trial testimony that was not able to be transcribed. This assignment of error 

recasts the fourth assignment of error as a procedural-due-process violation under the 

Fifth and Fourteenth Amendments to the United States Constitution. Two other 

appellate districts have rejected similar claims.

{¶20} The Eleventh District analyzed the due-process issue in the context of 

Juv.R. 40(D)’s civil analogue, Civ.R. 53(D). Dague v. Dague, 11th Dist. Lake 

No. 2011-L-076, 2012-Ohio-1582. There, the appellant argued his due-process rights 

had been violated because “the trial court could not engage in a complete review of the 

hearing before the Magistrate and [the] Magistrate’s decision as a result of the taperecorder malfunction.” Id. at ¶ 48. The Eleventh District rejected that argument and 

held the appellant had “the opportunity to submit an affidavit of the evidence not 

recorded pursuant to Civ.R. 53(D)(3)(b)(iii).” Id. at ¶ 49. The Eleventh District noted 

that if the appellant “felt that important evidence had been lost due to the malfunction, 

he was obligated to bring that evidence to the court's attention via an affidavit. He 
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failed to do so.” Id. at ¶ 50. As a result, the Eleventh District determined there was 

“no violation of [the appellant’s] due process rights.” Id. at ¶ 49.

{¶21} The Twelfth District Court of Appeals applied the reasoning in Dague 

to reject another similar procedural-due-process claim. Vogel, 2021-Ohio-4245, 180 

N.E.3d 594. There, the appellant claimed his due-process rights were violated because 

an error resulted in his hearsay objection and the magistrate’s ruling not being 

recorded. Id. at ¶ 31. The appellant suggested the trial court erred as a matter of law 

by not reopening the proceedings. Id. at ¶ 28. Applying the Eleventh District’s 

analysis in Dague, the Twelfth District concluded the trial court was not obligated to 

reopen the proceedings, and that appellant should have submitted an affidavit 

detailing the evidence and events that transpired during the 26-minute lapse in the 

recording. Id. at 31-32, quoting Dague at ¶ 1, 48-50.

{¶22} Applying the Eleventh and Twelfth Districts’ rationale in Dague and 

Vogel to the case here, the juvenile court did not violate mother’s procedural-dueprocess rights by requiring mother to submit an affidavit to fill the holes in the 

transcript. Mother submitted uncontroverted evidence in a 48-page affidavit where 

mother’s counsel asked mother questions as if on direct-examination and without 

opposing counsel present to potentially object or cross-examine mother. Mother’s 

testimony was transcribed and then submitted to the juvenile court to review 

alongside the transcript of the trial before the magistrate. Mother had the opportunity 

to use the incomplete transcript and the magistrate’s decision to rebut father’s case 

and advance her objections. Father did not object to using the affidavit.

{¶23} Mother argues that the juvenile court ought to have permitted mother

to file an affidavit containing all the evidence presented at trial or to have permitted 
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both parties to submit dueling affidavits of all the evidence. But if any error occurred, 

it was invited. Under the invited-error doctrine, a party may not take advantage of an 

error that the party invited or induced the trial court to make. Blair v. McDonagh, 177 

Ohio App.3d 262, 2008-Ohio-3698, 894 N.E.2d 377, ¶ 39 (1st Dist.), citing Hal Artz 

Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986),

paragraph one of the syllabus.

{¶24} Mother gained the benefit of submitting an affidavit without being 

subject to evidentiary objections or cross-examination from father. Mother cannot

now claim the juvenile court erred by failing to require father to submit a dueling 

affidavit when mother did not raise that issue in the juvenile court during oral 

argument, and father did not object. Mother also cannot claim that the affidavit was 

defective because it did not contain the entire transcript because mother was the party 

that prepared the affidavit and could have submitted whatever she wanted. If mother

believed the affidavit must contain the entire record, mother could have added the 

transcript to her already 48-page affidavit. Any error in drafting the affidavit lies with 

mother.

{¶25} Consequently, we overrule mother’s fifth assignment of error.

III. Independent review of the magistrate’s decision

{¶26} In her first, second, and third assignments of error, mother argues that 

the juvenile court’s independent review process was faulty, in part because of the use 

of the affidavit to supplement the missing portions of the transcript. Mother argues 

that the juvenile court did not conduct an independent review because it adopted the 

magistrate’s decision in whole or, in the alternative, if it did conduct a proper

independent review, the juvenile court would necessarily rely on the affidavit and thus 
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decide the case on a different set of facts from the magistrate. Mother argues further 

that the juvenile court cannot defer to the magistrate’s credibility determinations 

insofar as it relies on evidence that was not before the magistrate.

{¶27} In her first assignment of error, mother argues that the juvenile court 

erred by failing to undertake an independent review of mother’s objections to the 

magistrate’s decision. Juv.R. 40(D)(4)(d) provides, in ruling on objections, the 

juvenile 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.” See In re C, 1st Dist. Hamilton Nos. C-200003 and C200004, 2020-Ohio-4206, ¶ 15.

{¶28} Mother argues that the juvenile court does not conduct an independent 

review of the factual issues where the juvenile court simply recites the magistrate’s 

findings. However, this is expressly permitted under Juv.R. 40(D)(4)(b), which 

authorizes the juvenile court to adopt or reject the magistrate’s decision “in whole or 

in part, with or without modification” after conducting an independent review. A 

juvenile court reviewing a magistrate’s decision does not function like an appellate 

court issuing an opinion separate from a trial court’s judgment. See In re P.S., 10th 

Dist. Franklin No. 07AP-516, 2007-Ohio-6644, ¶ 23, citing Sweeney v. Sweeney, 10th 

Dist. Franklin No. 06AP-251, 2006-Ohio-6988, ¶ 14. Under the plain language of 

Juv.R. 40, a juvenile court may properly decide to adopt the magistrate’s decision “in 

whole” and “without modification” so long as the juvenile court’s independent review 

shows the magistrate properly determined the facts and applied the appropriate law.

{¶29} Here, the record shows the juvenile court undertook an independent 

review. The juvenile court discussed the facts of the case and applied each of the 
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statutory best-interest factors in four pages of analysis. The juvenile court provided 

additional legal reasoning specifically addressing two of mother’s objections regarding 

the submission of an affidavit in lieu of unrecorded testimony and that a grant of legal 

custody of the Twins to father would violate mother’s due-process rights. The juvenile 

court found the law cited by mother applied to permanent-custody and terminationof-parental-rights cases only and not to the legal-custody determination. Thus, the 

juvenile court’s decision demonstrated that it undertook an independent review of the 

magistrate’s decision.

{¶30} Consequently, we overrule mother’s first assignment of error.

{¶31} In her second assignment of error, mother argues that if there was an 

independent review conducted by the juvenile court, then the juvenile court relied on 

a different record than what the magistrate relied on when making his decision. Again, 

mother asserts error in conduct expressly authorized by the Rules of Juvenile 

Procedure, which authorize the juvenile court to take new evidence not presented to 

the magistrate. Juv.R. 40(D)(4)(b) provides that when the juvenile court acts on a 

magistrate’s decision, it “may hear a previously-referred matter, take additional 

evidence, or return a matter to a magistrate.” Juv.R. 40(D)(4)(d) goes on to restrict 

when a juvenile court may take additional evidence when acting on objections. That 

rule provides, in relevant part, “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.” (Emphasis added.) Juv.R. 40(D)(4)(d). Thus, a juvenile court can go 

beyond the evidence presented to the magistrate when it conducts its independent 

review.
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{¶32} Indeed, this court has endorsed a juvenile court taking additional 

evidence to correct problems encountered at the objections hearing. In re M/W 

Children, 1st Dist. Hamilton No. C-180623, 2019-Ohio-948, ¶ 38. There, we 

instructed that the juvenile court “could have conserved substantial judicial resources 

while causing little inconvenience to the parties or the court” by permitting additional 

testimony at the objections hearing. Id. The same is true for the juvenile court here. 

By having mother submit an affidavit of her testimony, the juvenile court conserved 

substantial judicial resources while causing little inconvenience to the parties or the 

court. All of mother’s alternative solutions, submitting an affidavit containing the 

entire record, both parties submitting dueling affidavits, or an entirely new trial before 

the magistrate, would inconvenience the court, strain its judicial resources, and cause 

substantial expense to both parties, who have already spent years litigating.

{¶33} Consequently, we overrule mother’s second assignment of error.

{¶34} In her third assignment of error, mother argues that the juvenile court 

may not rely on the affidavit of mother’s testimony while also deferring to the 

magistrate’s assessment of the witnesses’ credibility and weighing of the evidence. 

Mother argues the juvenile court cannot have it both ways, deferring to the magistrate 

on credibility while relying on evidence that was not before the magistrate.

{¶35} Specifically, mother takes issue with the juvenile court making 

independent factual determinations and deferring to the fact “[t]he magistrate was 

able to view the demeanor of the witnesses judge the credibility of the testimony and 

the weight of the evidence presented to the court.” It is not clear whether the court 

deferred to the magistrate regarding all the testimony or deferred regarding only the 

transcribed testimony. Regardless, this ambiguity is inconsequential. 
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{¶36} If the juvenile court deferred as to all the testimony, there should be no 

material differences between all the testimony presented and the testimony 

transcribed plus the affidavit. The juvenile court ordered mother to submit “an 

affidavit of the evidence presented that was not able to be transcribed.” Presuming 

that mother followed the juvenile court’s order, the transcript would contain only 

evidence that the magistrate heard and thus be subject to the magistrate’s credibility 

determinations, even with the inevitable differences between the testimony presented 

at trial and the affidavit submitted months later.

{¶37} If the juvenile court deferred to the magistrate only on evidence that 

was transcribed and made an independent credibility determination on the affidavit, 

the court may do so. See In re A.S., 1st Dist. Hamilton No. C-180056, 2019-Ohio-2359, 

¶ 19 (“although it may, a juvenile court is not required to defer to a magistrate's 

credibility determination when ruling on objections.”) The juvenile court must be 

mindful when reviewing any factual finding based on witness credibility that the 

magistrate “is in the best position to judge the credibility of the witnesses and the 

weight to be given to the evidence presented.” In re S.D., 1st Dist. Hamilton Nos. C200045 and C-200084, 2020-Ohio-3379, ¶ 18, quoting State v. Carson, 1st Dist. 

Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16. The juvenile court judge does not 

have the advantage of being present in the courtroom as the witnesses testified and 

observing the witnesses’ demeanor. Id. Here, the magistrate was still in the better 

position to assess mother’s overall credibility as a witness because the magistrate 

actually heard the testimony in the courtroom and observed mother’s demeanor.

{¶38} Mother’s arguments to the contrary are unconvincing. Mother cites 

cases analyzing the role of appellate courts to argue the juvenile court cannot both 
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defer to a magistrate’s credibility determination and independently determine other 

facts. But mother’s cited cases are inapplicable because a juvenile court conducting an 

independent review of a magistrate’s decision is “the ultimate trier of fact,” unlike an 

appellate court conducting appellate review. See In re A.S. at ¶ 20, quoting State ex 

rel. DeWine v. Ashworth, 4th Dist. Lawrence No. 11CA16, 2012-Ohio-5632, ¶ 37, and 

Hurricane Dev., L.L.C. v. Fourtounis, 2017-Ohio-927, 86 N.E.3d 857, ¶ 27 (8th Dist.). 

Similarly, mother’s comparison between a juvenile court referring a matter to a 

magistrate and a trial court overseeing a jury is inapplicable because 

Juv.R. 40(D)(4)(d) requires the juvenile judge to usurp a magistrate when he or she

has erred, even on factual issues, where a trial judge cannot improperly usurp the 

jury’s role. 

{¶39} Accordingly, we overrule mother’s third assignment of error.

IV. Manifest weight of the evidence

{¶40} In her sixth assignment of error, mother argues that the juvenile court 

erred because the manifest weight of the evidence clearly favored mother. While 

mother invokes App.R. 12(C) and the civil weight-of-the-evidence standard, we have 

previously applied the abuse-of-discretion standard and determined whether the 

juvenile court’s best-interest determination is supported by competent and credible 

evidence. In re D.Z.F., 1st Dist. Hamilton No. C-200260, 2020-Ohio-5246, ¶ 19-20, 

citing In re E.B., 1st Dist. Hamilton No. C-190050, 2019-Ohio-3943, ¶ 13; In re F.B.D., 

1st Dist. Hamilton No. C-180356, 2019-Ohio-2562, ¶ 11. Mother advances no 

argument for why this court should deviate from its ordinary practice here.

{¶41} A juvenile court’s determination of legal custody must be based on the 

best interest of the children. See In re Allah, 1st Dist. Hamilton No. C-040239, 
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2005-Ohio-1182, ¶ 10. R.C. 3109.04(F)(1) lays out the ten applicable factors that may 

guide juvenile court when determining the best interest of the child. No single factor 

controls and the weight to be given to any factor lies within the trial court's discretion. 

See In re M., R., & H. Children, 1st Dist. Hamilton No. C-170008, 2017-Ohio-1431, ¶ 

34. The juvenile court’s judgment shows that it considered the statutory best-interest 

factors and supported each determination with competent and credible evidence.

{¶42} Mother argues that the juvenile court (1) failed to consider that mother 

was the “100% involved parent” and the only caretaker of the Twins; (2) went out of 

its way to hold mother accountable for the initial confusion regarding paternity, 

miscommunications regarding visitation, and not being a perfect parent while 

ignoring father’s faults; and (3) ignored the wishes of the Twins. These arguments are 

unconvincing.

{¶43} First, while mother was the sole caretaker of the Twins prior to the 

juvenile court’s grant of custody to father, that is not a statutory best-interest factor 

except insofar as the children have adjusted to their home, school, and community 

while under mother’s care. See R.C. 3109.04(F)(1)(d). The juvenile court has the 

discretion to weigh this against all the other statutory factors and the testimony that 

mother exhibited a pattern of frustrating father’s involvement with the Twins. 

Moreover, the juvenile court considered mother’s role in ensuring she remains the sole 

caretaker by engaging in a persistent effort to frustrate father’s parenting time, 

refusing to provide the Twins’ school and medical records, and resisting developing 

communication channels between mother and father.

{¶44} Second, mother’s conduct and miscommunications regarding 

visitation and paternity are relevant to the best-interest inquiry. Which parent is more 
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likely to honor and facilitate court-approved parenting time and whether a parent has 

violated a shared-parenting decree are two of the statutory best-interest factors. R.C.

3109.04(F)(1)(f), (i). This is important in legal-custody cases such as this where the 

nonresidential parent retains significant parental rights. Thus, mother’s reluctance to 

follow court orders, failed visitation plans, and misstatements of paternity are all 

relevant to assessing whether mother or father is more likely to respect the other 

parent’s residual parental rights. See In re L.L., 1st Dist. Hamilton No. C-200058, 

2020-Ohio-5609, ¶ 11 (finding mother’s misconduct relevant to determination that 

father was more likely to honor parenting-time decrees). Thus, the juvenile court did 

not go out of its way to consider mother’s faults, but it was instructed to consider both 

mother’s and father’s merits and faults by R.C. 3109.04(F).

{¶45} Mother’s argument that the juvenile court ignored father’s faults is 

similarly unconvincing. The juvenile court expressly considered father’s move from 

Ohio to Wisconsin as instructed by R.C. 3109.04(F)(1)(j). The court also did not 

overlook father’s own stubborn and uncooperative actions in coordinating parenting 

time. But the court had to decide between two imperfect parents who was the more 

likely one to honor the court’s orders. The juvenile court also considered father’s 

failure to make all child-support payments as instructed by R.C. 3109.04(F)(1)(g) and 

noted as part of its analysis that father owed $900. 

{¶46} Third, the juvenile court properly determined that the Twins, at age 

three, were too young to express their wishes. We have no reason to doubt this 

determination, and mother does not argue that the juvenile court erred in that

determination. Instead, mother argues only that removing the children from their 
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mother would be harmful, which the juvenile court addressed in multiple places 

elsewhere in its analysis.

{¶47} Even if the juvenile court erred in that determination, any error would 

be invited by mother. Under the invited-error doctrine, a party may not take 

advantage of an error that the party invited or induced the trial court to make. 

McDonagh, 177 Ohio App.3d 262, 2008-Ohio-3698, 894 N.E.2d 377, at ¶ 39. If 

mother believed the wishes of the Twins were necessary to the custody determination, 

mother should have moved under R.C. 3901.04(B) for the court to interview the Twins, 

determine where their interests lie, and appoint a guardian ad litem to advance their 

interests. Instead, mother proceeded to trial without evidence of the Twins’ wishes. 

Mother cannot now argue on appeal that the juvenile court erred by failing to consider 

the wishes of the Twins when mother had the opportunity to raise that issue in the 

juvenile court but chose not to.

{¶48} Ultimately, there was a substantial amount of competent and credible 

evidence to support the juvenile court’s determination that granting legal custody to 

father was in the best interest of the Twins.

{¶49} Consequently, we overrule mother’s sixth assignment of error.

V. Custody as a matter of law

{¶50} In her seventh and final assignment of error, mother argues that she 

should be awarded custodial rights over the Twins and be designated their residential 

parent as a matter of law. Here, mother restates her arguments about the manifest 

weight of the evidence but recast as an argument under App.R. 12(B). But mother fails 

to cite any authority or explain why those arguments justify a grant of legal custody as 

a matter of law.
OHIO FIRST DISTRICT COURT OF APPEALS

19

{¶51} Generally, “it is inappropriate in most cases for a court of appeals to 

independently weigh evidence and grant a change of custody” under App.R. 12. Miller 

v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988); Teufel v. Teufel, 1st Dist. 

Hamilton No. C-160673, 2017-Ohio-5732, ¶ 15, quoting id. This principle is 

particularly true in custody matters. The Supreme Court of Ohio instructs appellate 

courts to respect the juvenile court’s discretion in custody matters and be mindful that 

an appellate court lacks the knowledge a juvenile court gains by observing the 

witnesses and the parties during proceedings. See Miller at 74, citing Trickey v. 

Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). Accordingly, it would be 

inappropriate for an appellate court to use App.R. 12(B) in this situation to dictate 

legal custody as a matter of law contrary to the juvenile court’s determination where 

the juvenile court has the advantage of observing the witnesses and the parties over 

five years of proceedings.

{¶52} Consequently, we overrule mother’s seventh assignment of error.

Conclusion

{¶53} In light of the foregoing analysis, we overrule mother’s seven

assignments of error and affirm the judgment of the juvenile court.

Judgment affirmed.

BOCK and KINSLEY, JJ., concur.

Please note:

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