[Cite as Polhamus v. Robinson, 2017-Ohio-39.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

EMILY POLHAMUS, 

 PETITIONER-APPELLEE, CASE NO. 8-16-11 

 v. 

VIOLET M. ROBINSON, 

 RESPONDENT-APPELLEE, 

 -and- O P I N I O N 

OLIVER M. GUTIERREZ, 

 RESPONDENT-APPELLANT. 

 

Appeal from Logan County Common Pleas Court 

Family Court - Juvenile Division 

Trial Court No. 10 AD 109 

Judgment Affirmed 

Date of Decision: January 9, 2017 

 

 

APPEARANCES: 

 

Miranda A. Warren for Appellant 

 Natalie J. Bahan for Appellee, Emily Polhamus 
Case No. 8-16-11 

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PRESTON, P.J. 

{¶1} Respondent-appellant, Oliver M. Gutierrez (“Oliver”), appeals the May 

11, 2016 decision of the Logan County Court of Common Pleas, Family Court—

Juvenile Division, denying his motion requesting the trial court to award him legal 

and residential custody of his daughter, M.G. For the reasons that follow, we affirm. 

{¶2} This case stems from a shared-custody agreement executed between 

Oliver, respondent-appellee, Violet M. Robinson (“Violet”), M.G.’s mother, and 

petitioner-appellee, Emily Polhamus (“Emily”), M.G.’s maternal aunt, in which 

they agreed to share legal custody of M.G. with Emily having residential custody of 

M.G. M.G. was born in 2004 to Oliver and Violet during their marriage. (Doc. No. 

1). In 2007, Violet, who had previously separated from Oliver, was diagnosed with 

Crohn’s disease. (June 5, 2015 Tr. at 7). Because of Violet’s illness and financial 

instability, Emily offered to care for M.G. (Id. at 8). Violet and Emily could not 

initially locate Oliver but eventually found him living and working under an 

assumed alias. (Id. at 83, 89, 127). Emily consulted an attorney who advised her 

that the parties could privately execute a shared-custody agreement to reflect the 

parties’ agreement regarding the care and custody of M.G. (Id. at 83-84, 126). The 

parties executed a shared-custody agreement (the “shared-custody agreement”) 

reflecting that Oliver, Violet, and Emily would share legal custody of M.G. with 
Case No. 8-16-11 

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Emily having residential custody of M.G.1

 (See id. at 10, 17, 83); (Feb. 24, 2015 

Tr. at 9-10). 

{¶3} Emily filed with the Russell County, Virginia Juvenile and Domestic 

Relations Court the out-of-court-shared-custody agreement executed by the parties, 

and that court issued on March 2, 2007 an agreed order reflecting the shared-custody 

agreement of the parties. (See Doc. Nos. 1, 3). (See also June 5, 2015 Tr. at 83). 

{¶4} On June 15, 2010, Emily filed with the Logan County Court of 

Common Pleas, Family Court—Juvenile Division, a “Petition to Register Foreign 

Custody Decree.” (Doc. No. 1). On November 15, 2010, the trial court granted 

Emily’s petition and registered the foreign custody decree. (Doc. No. 12). 

{¶5} On June 20, 2011, Oliver filed a “Notice of Submission of Order” and 

submitted to the trial court a September 7, 2010 order of the Russell County court 

modifying the March 2, 2007 order regarding Violet’s visitation time. (Doc. No. 

14). 

{¶6} On July 13, 2011, Oliver filed a motion to modify Violet’s visitation 

time with M.G. (Doc. No. 15). In that motion, Oliver did “not seek to modify the 

rights of [Emily] and believe[d] she is a stable and positive influence on [M.G.]” 

 

1

 The shared-custody agreement was executed in Russell County, Virginia where Oliver and Violet were 

residing at that time. (June 5, 2015 Tr. at 9, 12). At the time the parties executed that agreement, Emily was 

living in Bellefontaine, Ohio. (Id. at 10, 82). 
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(Id.). Violet filed on August 11, 2011 an “Objection” to Oliver’s motion. (Doc. 

No. 27). 

{¶7} On August 22, 2012, the parties entered an “Agreed Judgment Entry” 

(the “agreed-custody entry”) in which, in part, they agreed to continue to share legal 

custody of M.G. with Emily continuing to have residential custody of M.G. (Doc. 

No. 62). 

{¶8} On January 27, 2014, Oliver filed a “Motion for Reallocation of 

Parental Rights and Responsibilities” asking that the trial court grant him legal and 

residential custody of M.G. (Doc. No. 65). On February 21, 2014, Emily filed a 

memorandum in opposition to Oliver’s motion. (Doc. No. 79). On February 27, 

2014, Violet filed an “Answer and Objection” to Oliver’s motion. (Doc. No. 81). 

{¶9} On June 4, 2014, the trial court appointed a guardian ad litem (“GAL”) 

for M.G. (Doc. No. 109). The GAL filed his report on February 12, 2015. (Doc. 

No. 126). 

{¶10} On July 31, 2014, Oliver filed an addendum to his motion, clarifying 

that he was “requesting that custody of [M.G.] be allocated, not reallocated.” (Doc. 

No. 113). 

{¶11} After hearings on February 24, 2015 and June 5, 2015, the magistrate 

issued his decision on December 17, 2015, concluding that Oliver and Violet 

forfeited their paramount right to custody of M.G; that no change of circumstances 
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occurred; and that it is in M.G.’s best interest that Emily be M.G.’s “primary 

caretaker” if Emily can legally fill that role. (Doc. Nos. 137, 142). 

{¶12} On March 21, 2016, Oliver filed his objections to the magistrate’s 

decision. (Doc. No. 143). On May 11, 2016, the trial court overruled Oliver’s 

objections to the magistrate’s decision and adopted the magistrate’s decision—

namely, that Oliver and Violet forfeited their paramount right to custody of M.G. 

and that no change in circumstances occurred necessitating a modification of the 

agreed-custody entry. (Doc. No. 144). 

{¶13} Oliver filed his notice of appeal on June 6, 2016. (Doc. No. 145). He 

raises three assignments of error for our review. For ease of our discussion, we first 

address together Oliver’s first and second assignments of error, then his third 

assignment error. 

Assignment of Error No. I 

It was an Abuse of Discretion and Against the Manifest Weight of 

the Evidence When the Trial Court Found that the Appellant 

Forfeited His Paramount Right of Custody of Their [sic] Child by 

Contract (Physical Custody) and by Abandonment (Legal 

Custody). 

Assignment of Error No. II 

It was an Abuse of Discretion and Against the Manifest Weight of 

the Evidence When the Trial Court Failed to Apply All Criteria 

of In Re Perales and Denied Custody of the Minor Child to the 

Appellant. 
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{¶14} In his first and second assignments of error, Oliver argues that the trial 

court abused its discretion by concluding that he forfeited his paramount right to 

custody of M.G. Stated differently, Oliver challenges the trial court’s parentalsuitability conclusion. In particular, he argues that the trial court abused its 

discretion by concluding that he is an unsuitable parent because he forfeited his 

paramount right to custody of M.G. by executing the shared-custody agreement and 

by abandoning M.G. Oliver further argues that the trial court failed to apply the In 

re Perales criteria in its parental-suitability determination. 52 Ohio St.2d 89 (1977). 

{¶15} As an initial matter, we note that “the juvenile court has exclusive 

original jurisdiction to determine the custody of a child who is not a ward of another 

Ohio court.” Redmond v. Davis, 7th Dist. Columbiana No. 14 CO 37, 2015-Ohio1198, ¶ 33, citing R.C. 2151.23(A)(2). See also Rowell v. Smith, 10th Dist. Franklin 

No. 12AP-802, 2013-Ohio-2216, ¶ 57. A juvenile court is to exercise its jurisdiction 

in a child-custody matter in accordance with R.C. 3109.04. R.C. 2151.23(F)(1). 

{¶16} “‘Decisions concerning child custody matters rest within the sound 

discretion of the trial court.’” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-

Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9-12-15, 2013-

Ohio-1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17-10-15, 2011-

Ohio-3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “‘“Where an 

award of custody is supported by a substantial amount of credible and competent 
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evidence, such an award will not be reversed as being against the weight of the 

evidence by a reviewing court.”’” Id., quoting Walker at ¶ 46, quoting Barto v. 

Barto, 3d Dist. Hancock No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Bechtol v. Bechtol, 

49 Ohio St.3d 21 (1990), syllabus. “‘Accordingly, an abuse of discretion must be 

found in order to reverse the trial court’s award of child custody.’” Id., quoting 

Walker at ¶ 46, citing Barto at ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85 

(1994). “‘An abuse of discretion suggests the trial court’s decision is unreasonable 

or unconscionable.’” Id., quoting Brammer v. Meachem, 3d Dist. Marion No. 9-10-

43, 2011-Ohio-519, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 

(1983). 

{¶17} In this case, Oliver, M.G.’s parent, disputes the trial court’s decision 

granting Emily, a nonparent, custody of M.G. “It is without question that parents 

have a constitutionally protected due process right to make decisions concerning the 

care, custody, and control of their children, and the parents’ right to custody of their 

children is paramount to any custodial interest in the children asserted by 

nonparents.” Rowell at ¶ 27, citing In re Mullen, 129 Ohio St.3d 417, 2011-Ohio3361, ¶ 11, citing Troxel v. Granville, 530 U.S. 57, 66 (2000), and citing In re 

Murray, 52 Ohio St.3d 155, 157 (1990) and Clark v. Bayer, 32 Ohio St. 299, 310 

(1877). “[A] ‘suitable’ parent has a ‘paramount right’ to the custody of their minor 

child ‘unless they forfeit that right by contract, abandonment, or by becoming totally 
Case No. 8-16-11 

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unable to care for and support those children.’” Redmond at ¶ 34, quoting In re 

Perales, 52 Ohio St.2d at 97, citing Clark at 310, and citing Masitto v. Masitto, 22 

Ohio St.3d 63, 65 (1986). 

{¶18} “Equally well-settled under Ohio law is the principle that a parent may 

voluntarily share with a nonparent the care, custody, and control of his or her child 

through a valid shared-custody agreement.” Rowell at ¶ 27, citing Mullen at ¶ 11, 

citing In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, ¶ 50 and R.C. 

2151.23(A)(2), and citing State ex rel. M.L.G. v. Montgomery, 10th Dist. Franklin 

No. 12AP-13, 2012-Ohio-3591, ¶ 21. “The essence of a voluntary shared custody 

agreement between a parent and nonparent is the purposeful relinquishment of some 

portion of the parent’s right to exclusive custody of the child.” Id., citing Mullen at 

¶ 11. “‘A shared-custody agreement recognizes the general principle that a parent 

can grant custody rights to a nonparent and will be bound by the agreement.’” Id., 

quoting Mullen at ¶ 11, citing Bonfield at ¶ 48, citing Masitto at 65, and citing Clark

at paragraphs two and three of the syllabus (recognizing that a parent’s grant of 

custody to a nonparent through an agreement is lawful and enforceable). 

{¶19} In his first two assignments of error, Oliver argues that the trial court 

abused its discretion by concluding that he forfeited his paramount right to custody 

of M.G. “Whether a parent has voluntarily relinquished the right to custody is a 

factual question to be proven by a preponderance of the evidence.” Id. at ¶ 30, citing 
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Mullen at ¶ 14, citing In re Perales at syllabus and Reynolds v. Goll, 75 Ohio St.3d 

121, 123 (1996), and citing Penna v. Rowe, 11th Dist. Portage No. 2012-P-0026, 

2012-Ohio-5442, ¶ 20 (in an R.C. 2151.23(A)(2) custody proceeding between a 

parent and a nonparent, unsuitability is determined by a preponderance of the 

evidence). “The determination of whether a ‘“parent relinquishes rights to custody 

is a question of fact which, once determined, will be upheld on appeal if there is 

some reliable, credible evidence to support the finding.”’” Id., quoting Mullen at ¶ 

15, quoting Masitto at 66, and citing Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), 

syllabus (“[w]here an award of custody is supported by a substantial amount of 

credible and competent evidence, such an award will not be reversed as being 

against the weight of the evidence by a reviewing court”). “Likewise, whether a 

parent, through words and conduct, has agreed to share legal custody with a 

nonparent is also a question of fact.” Id., citing Mullen at ¶ 14. A parent does not 

surrender his or her paramount right to custody of the child to a nonparent unless he 

or she surrenders that right knowingly and intelligently. Zahler v. Batchelor, 3d 

Dist. Hancock No. 5-97-16, 1997 WL 461348, *2 (Aug. 13, 1997), quoting In re 

Custody of Carpenter, 41 Ohio App.3d 182, 185 (2d Dist.1987). 

{¶20} “‘A valid shared-custody agreement is reviewed by the juvenile court 

and is an enforceable contract subject only to the court’s determinations that the 

custodian is a “proper person to assume the care, training, and education of the 
Case No. 8-16-11 

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child” and that the shared legal-custody arrangement is in the best interests of the 

child.’” Rowell at ¶ 30, quoting Mullen at ¶ 11, quoting Bonfield at ¶ 48, 50. 

{¶21} Although the trial court applied the parental-unsuitability test in 

addressing whether Oliver forfeited his paramount right to custody of M.G., the 

parental-unsuitability test is not the applicable test in this case. Instead, “the 

applicable test in further custody proceedings between [a parent and a nonparent is] 

the child’s best interests.” Redmond, 2015-Ohio-1198, at ¶ 62. Here, the trial court 

was not faced with an original award of custody between a parent and a nonparent; 

rather, the trial court was to address a modification of an original award of custody. 

See id. at ¶ 51 (“Where there is a prior order granting shared custody to a non-parent 

by incorporating that agreement, the parent does not have a paramount right to 

custody. A finding of parental unsuitability is not required in order to refuse the 

parent’s later request for sole custody.”), citing In re DeLucia v. West, 7th Dist. 

Mahoning No. 05-MA-5, 2005-Ohio-6933, ¶ 32. 

{¶22} Indeed, the parties executed in 2007 a written shared-custody 

agreement, and the parties requested a juvenile court in Virginia to issue an agreedjudgment entry reflecting the parties’ written shared-custody agreement. (See Doc. 

No. 1). In 2010, Emily filed with the trial court the 2007 agreed-judgment entry of 

the Virginia juvenile court, which the trial court registered. (Doc. No. 12). Prior to 

the trial court’s registration of the Virginia juvenile court’s 2007 agreed-judgment 
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entry, the Virginia juvenile court modified the shared-custody agreement by 

amending Violet’s visitation with M.G. (See Doc. No. 14). The Virginia juvenile 

court did not modify the shared-custody agreement between the parties as to Emily 

sharing legal custody of M.G. with Oliver and Violet or as to Emily having 

residential custody of M.G. (See id.). Again, in 2012, the parties requested that the 

trial court issue an agreed-judgment entry, which maintained the terms of the 

original shared-custody agreement as to legal and residential custody. (Doc. No. 

62). 

{¶23} As such, the record reflects that Oliver agreed to an original award of 

custody, which was adopted by the trial court in not fewer than three judgment 

entries. Stated differently, Oliver previously relinquished his paramount right to 

custody of M.G. See Redmond at ¶ 1, 51. Because Oliver previously relinquished 

his paramount right to sole custody of M.G., the trial court did not need to consider 

Oliver’s unsuitability in the underlying modification proceeding. See id.; Purvis v. 

Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, ¶ 10 (4th Dist.) (“Thus, once a 

nonparent has acquired custody, the court need not apply the Perales unfitness 

standard to a later request for custody modification.”), citing In re Kovaleski, 4th 

Dist. Washington No. 05CA12, 2006-Ohio-317, ¶ 21, citing Bragg v. Hatfield, 152 

Ohio App.3d 174, 2003-Ohio-1441, ¶ 17-19 (4th Dist.) (concluding that the 

parental-suitability standard applies only in original-custody determinations, not in 
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later applications to regain custody of a child after the “parent contracts away rights 

for his minor child” and that contract is codified in an agreed entry), citing Masitto, 

22 Ohio St.3d at 68. See also In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 

¶ 38 (“A parent should be given only one unsuitability determination, which should 

come at the time of the legal custody hearing. After such a determination has 

established, or taken away, a parent’s fundamental custodial rights, the focus must 

shift from the rights of the parents to the rights of the child. A child’s rights are 

effectuated through the use of the best-interest-of-the-child standard for subsequent 

custodial modification requests.”). 

{¶24} Accordingly, we need not address Oliver’s arguments under his first 

and second assignments of error pertaining to the trial court’s parental-unsuitability 

determination because it was not necessary for the trial court to address that issue 

in this case. See Redmond at ¶ 1, 62 (concluding that “the applicable test in further 

custody proceedings between the parties was the child’s best interests” when a 

parent contractually relinquishes their paramount right in a shared-custody 

agreement adopted by the juvenile court). Oliver’s first and second assignments of 

error are overruled. 

Assignment of Error No. III 

It was an Abuse of Discretion and Against the Manifest Weight of 

the Evidence When the Trial Court Found that the Appellant 

Failed to Show that a Change in Circumstances of the Child Had 

Occurred in the Circumstances of the Child or the Custodian 
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Since the Last Decree or that a Modification is Necessary to Serve 

the Best Interest of the Child. 

{¶25} In his third assignment of error, Oliver argues that the trial court 

abused its discretion by concluding that Oliver failed to demonstrate a change in 

circumstances necessitating a modification of the agreed-custody entry. He also 

argues that the trial court’s conclusion that there was no change in circumstances of 

the child or the custodian since the agreed-custody entry is against the manifest 

weight of the evidence. Oliver further argues under this assignment of error that the 

trial court abused its discretion by concluding that there was no change in 

circumstances necessitating modification of the agreed-custody entry to serve 

M.G.’s best interest. 

{¶26} As an initial matter, we note that Oliver argues that the change-incircumstances test under R.C. 3109.04(E)(1)(a) does not apply in a custody dispute 

between a parent and nonparent.2

 Oliver is wrong. The Supreme Court of Ohio 

squarely addressed this argument in In re Brayden James. 113 Ohio St.3d 420, 

2007-Ohio-2335. See also Thomas v. Moothart, 3d Dist. Hancock No. 5-02-56, 

2003-Ohio-3724, ¶ 11 (“Once an original custody award has been made, the general 

rule is that the award will not be modified unless, pursuant to R.C. 3109.04(E)(1)(a), 

 

2

 The majority of Oliver’s argument stems from his erroneous assumption that this case involves an originalcustody determination. In an original-custody-determination case, Oliver is correct that the change-ofcircumstances test under R.C. 3109.04 is inapplicable. Instead, in that instance, as we addressed in Oliver’s 

first and second assignments of error, the trial court applies the parental-unsuitability test. See In re Perales, 

52 Ohio St.2d at 97. 
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a change of circumstances is demonstrated.”), citing Masitto, 22 Ohio St.3d at 68. 

Because we determined in Oliver’s first and second assignments of error that this 

case does not involve an original-custody determination, the trial court properly 

considered the change-of-circumstances test under R.C. 3109.04(E)(1)(a). 

{¶27} R.C. 3109.04(E)(1)(a) provides: 

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, or either 

of the parents subject to a shared parenting decree, and that the 

modification is necessary to serve the best interest of the child. In 

applying these standards, the court shall retain the residential parent 

designated by the prior decree or the prior shared parenting decree, 

unless a modification is in the best interest of the child and one of the 

following applies: 

(i) The residential parent agrees to a change in the residential parent 

or both parents under a shared parenting decree agree to a change in 

the designation of residential parent. 
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(ii) The child, with the consent of the residential parent or of both 

parents under a shared parenting decree, has been integrated into the 

family of the person seeking to become the residential parent. 

(iii) The harm likely to be caused by a change of environment is 

outweighed by the advantages of the change of environment to the 

child. 

R.C. 3109.04(E)(1)(a). 

The statute creates a strong presumption in favor of retaining the 

residential parent designation and precludes a trial court from 

modifying a prior parental rights and responsibilities decree unless the 

court finds all of the following: (1) a change occurred in the 

circumstances of the child, the child’s residential parent, or a parent 

subject to a shared-parenting decree; (2) the change in circumstances 

is based upon facts that arose since the court entered the prior decree 

or that were unknown to the court at the time of the prior decree; (3) 

the child’s best interest necessitates modifying the prior custody 

decree; and (4) one of the circumstances specified in R.C. 

3109.04(E)(1)(a)(i)-(iii) applies. 
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Rohrbach v. Rohrbach, 3d Dist. Seneca No. 13-15-14, 2015-Ohio-4728, ¶ 15, citing 

In re Brayden James at ¶ 14.3

 As such, the threshold question in a custodymodification case involving a parent and a nonparent is whether a change occurred 

in the circumstances of the child or the child’s residential custodian. See In re 

Brayden James at ¶ 14 (applying the R.C. 3109.04(E)(1)(a) framework to a parentalrights-and-responsibility-modification case and noting that the threshold question in 

that type of case is whether a change in circumstances occurred). 

{¶28} “‘In determining whether a change in circumstances has occurred so 

as to warrant a change in custody, a trial judge, as the trier of fact, must be given 

wide latitude to consider all issues which support such a change.’” Rohrbach at ¶ 

16, quoting Davis v. Flickinger, 77 Ohio St.3d 415 (1997), paragraph two of the 

syllabus. Where the trial court’s change-in-circumstances determination is 

supported by competent, credible evidence, its decision will not be reversed on 

appeal as being against the manifest weight of the evidence. Bracy v. Bracy, 3d 

Dist. Allen No. 1-08-15, 2008-Ohio-3888, ¶ 9, citing Duer v. Moonshower, 3d Dist. 

Van Wert No. 15-03-15, 2004-Ohio-4025, ¶ 15, citing Hoitt v. Siefer, 105 Ohio 

App.3d 104, 107 (3d Dist.1995). “‘Additionally, in custody modification cases, an 

appellate court must give the trial court the “utmost respect” because it has the best 

 

3

 “Ohio does not recognize a parent’s attempt to enter into a statutory ‘shared parenting’ arrangement with a 

nonparent * * * because the nonparent does not fall within the definition of ‘parent’ under the current 

statutes.” In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, ¶ 11. Here, we have a shared-custody 

agreement. 
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opportunity to gauge the credibility, attitude, and demeanor of each witness.’” Id., 

quoting Duer at ¶ 15, citing Miller, 37 Ohio St.3d at 74 and Davis at 418. As such, 

a trial court’s change-in-circumstances determination under R.C. 3109.04 “‘should 

not be disturbed, absent an abuse of discretion.’” Rohrbach at ¶ 15, quoting Davis

at paragraph one of the syllabus. As we noted above, an abuse of discretion suggests 

the trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore, 

5 Ohio St.3d at 219. 

{¶29} In this case, the parties last executed a custody decree in 2012 when 

they executed the agreed-custody entry. As such, Oliver was required to 

demonstrate that a change in M.G.’s or Emily’s circumstances occurred from the 

time of the agreed-custody entry by way of facts that arose since that entry, or by 

way of facts that were unknown to the trial court at the time of the agreed-custody 

entry. The magistrate concluded, “Neither party showed that a change has occurred 

in the circumstances of the child or the custodian since the last decree or that a 

modification is necessary to serve the best interests of the child.” (Doc. No. 137). 

More specifically, the magistrate found that “no change in the circumstances of 

[M.G.], Emily, Violet or Oliver, has changed since the previous Entry was filed” in 

2012. (Id.). After independently reviewing the case in light of Oliver’s objections 

to the magistrate’s decision, the trial court overruled Oliver’s objections and 

adopted the magistrate’s decision. (Doc. No. 144). 
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{¶30} On appeal, Oliver argues that the trial court abused its discretion by 

concluding that there was no change in circumstances necessitating a modification 

of the agreed-custody entry. In particular, he argues that the trial court’s conclusion 

that there was no change in circumstances necessitating a modification of the 

agreed-custody entry is against the manifest weight of the evidence because (1) the 

record reflects a communication breakdown between Emily and Oliver necessitating 

a modification of the agreed-custody entry; (2) Emily “has threatened to withhold 

the agreed upon visitation with the minor child”; and (3) Emily recanted “on the 

oral agreement between the parties that the minor child be transitioned back to her 

parents’ custody.” (Appellant’s Brief at 16). 

{¶31} A change in circumstances can include a breakdown in 

communication between the parents—or in this case a parent and a nonparent 

custodian—and their inability to communicate and cooperate. Eatherton v. 

Behringer, 3d Dist. Seneca No. 13-12-23, 2012-Ohio-5229, ¶ 43, citing Milner v. 

Milner, 10th Dist. Franklin No. 99AP-13, 1999 WL 1139965, *3 (Dec. 14, 1999). 

Also, “[a] custodial parent’s interference with a child’s visitation by the 

noncustodial parent may be considered in determining whether a change of 

circumstances has occurred.” McLaughlin v. McLaughlin-Breznenick, 3d Dist. 

Logan No. 8-06-06, 2007-Ohio-1087, ¶ 31, citing Clark v. Smith, 130 Ohio App.3d 

648, 654 (3d Dist.1998), citing Holm v. Smilowitz, 83 Ohio App.3d 757, 773 (4th 
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Dist.1992), and citing Mitchell v. Mitchell, 126 Ohio App.3d 500, 505 (2d 

Dist.1998). 

{¶32} However, “[i]n reviewing whether the evidence presented in this case 

demonstrates that a change in circumstances occurred, we are reminded that the 

change must be of substance, not slight or inconsequential.” Eatherton at ¶ 40, 

citing Davis at 415. “In addition, R.C. 3109.04(E)(1)(a) does not require that the 

change be ‘substantial,’ nor does ‘the change * * * have to be quantitatively large, 

but rather, must have a material effect on the child.’” Id., quoting McLaughlin at ¶ 

16, citing Tolbert v. McDonald, 3d Dist. Allen No. 1-05-47, 2006-Ohio-2377, ¶ 31. 

{¶33} In his decision, regarding the parties’ communication issues, the 

magistrate found: 

 Oliver believes that he and Emily used to co-parent very well 

together, but since he filed for custody things have not gone as well. 

He testified that there is a lot of tension between Brittany [Gutierrez, 

Oliver’s current wife,] and Emily. In October 2013 Brittany was upset 

with both he [sic] and Emily because they made a deal about 

additional visitation, but they forgot to tell her. 

* * * 

 Brittany acknowledged that she once told Oliver that he needed 

to deal with Emily himself. She admitted being upset because Oliver 
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and Emily came to an agreement about visitation with [M.G.] but did 

not tell her. 

* * * 

 Emily believes that Oliver and Brittany don’t always act in 

[M.G.’s] best interest. After visitations with Violet, if [M.G.] returns 

with clothing or other items from Violet’s residence, Brittany 

immediately throws these items away. On one occasion, Oliver and 

Brittany objected when Emily gave Violet a little extra visitation time. 

They objected and said that they needed to approve any changes in 

[M.G.’s] schedule. On another occasion Violet wanted to switch 

summer visitation so [M.G.] could attend a horse camp. Oliver and 

Brittany refused. Additionally, Brittany and Oliver always claim they 

have plans if she or Violet want to switch visitation periods. 

* * * 

 For example, on one weekend there was 10 inches of snow in 

Kentucky, and Oliver and Brittany refused to reschedule Violet’s 

companionship week and because they had “prior plans” to clean 

house that weekend. 

(Doc. No. 137). The magistrate’s decision was reviewed and adopted by the trial 

court. (Doc. No. 144). 
Case No. 8-16-11 

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{¶34} There is competent, credible evidence supporting the trial court’s 

findings. The purpose of the change-in-circumstances test is to “provide stability in 

the life of a child” and “‘spare children from a constant tug of war.’” In re Brayden 

James, 2007-Ohio-2335, at ¶ 15, quoting Davis, 77 Ohio St.3d at 418. In this case, 

the trial court executed the agreed-custody entry in 2012. Less than two years after 

that entry, Oliver filed his motion requesting a modification of the prior custody 

order. Because the trial court was in the best position to assess the credibility, 

attitude, and demeanor of the witnesses, this court will defer to the trial court’s 

conclusions when they are supported by competent, credible evidence. In re S.B., 

11th Dist. Ashtabula No. 2010-A-0019, 2011-Ohio-1162, ¶ 92 (“It is not this court’s 

role to construe the facts de novo and render an independent judgment. We must 

defer to the juvenile court’s conclusions where, as here, they are fairly based on the 

evidence and record before the court.”), citing Hinton v. Hinton, 4th Dist. 

Washington No. 02CA54, 2003-Ohio-2785, at ¶ 14-29. 

{¶35} Contrary to Oliver’s argument on appeal, there is competent, credible 

evidence that Oliver and Brittany instigated the communication breakdown. Indeed, 

the record reflects an incident in October 2013 in which Brittany became upset 

regarding an agreement between Oliver and Emily about visitation, which incited 

the communication breakdown between the parties. (See Feb. 24, 2015 Tr. at 14-

15, 47-48, 91); (June 5, 2015 Tr. at 96-99). Shortly after that incident, Oliver filed 
Case No. 8-16-11 

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his motion requesting the custody modification in January 2014. (Id. at 99). Emily 

testified that she was hopeful that the parties could resolve the issues through 

mediation; however, Oliver and Brittany cancelled a scheduled mediation session 

between the parties. (Id. at 116). A party cannot rush into court and request a 

change in custody based on a change in circumstance resulting from a situation of 

their own creation. In re S.B. at ¶ 89 (“A juvenile court does not abuse its discretion 

in failing to find a change in circumstances where the moving party has helped to 

create or is responsible for the allegedly changed circumstances on which the 

motion to change custody is based.”). Accordingly, we conclude that the trial court 

did not abuse its discretion by concluding that no change in circumstances occurred 

based on a communication breakdown between the parties. See Kager v. Kager, 5th 

Dist. Stark No. 2001CA00316, 2002 WL 1343266, *2 (June 17, 2002) (concluding 

that the trial court did not abuse its discretion by concluding that no change had 

occurred in the circumstances of the children despite the father-appellant’s 

“examples of a general breakdown of communication between the parents”). 

{¶36} Yet, Oliver points to portions of Emily’s testimony that he argues 

demonstrates a breakdown in communication between the parties and their inability 

to communicate and cooperate warranting a modification. However, when read in 

context, the portions of the record to which Oliver directs us do not reflect conduct 

constituting a change in circumstances. Indeed, the portions of the record to which 
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Oliver directs us reflect the struggle between three parties sharing legal custody of 

a minor child—namely, their attempts to schedule vacation and visitation time to 

accommodate the schedules of all of the parties. (See June 5, 2015 Tr. at 111, 115, 

121, 138, 165). Illustrative of the tenuous situation between the parties is Emily’s 

response to her trial counsel’s prompt to “talk a little bit about this go-between 

situation you have been put in”: 

 Yeah. I, since Brittany came into the relationship, honestly, 

Oliver and Violet, to my knowledge have never really communicated 

the best. I have kind of played the go between, between the two of 

them. I am not saying it’s the greatest position to be put in. But for 

the sake of [M.G.], I have tried to make where I am coming from 

known to both parties. She deserves a relationship with her father. 

She deserves a relationship with her mother. There’s been plenty 

instances [sic] they have not agreed. I have had to make a decision. 

They still not agreed [sic]. 

 But even as recently as a month ago, I am trying to get questions 

answered that Violet had sent to Oliver. He is not responding. I like, 

a couple of times said, Hey, can you answer this? I would say since 

last year, even air [sic] communication has broke down. So I have 

only been dealing with Oliver. Brittany has not communicated with 
Case No. 8-16-11 

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me at all. But even then, Oliver is not wanting to communicate as 

well. If he does, it’s like, You are threatening me. You are being a 

bully. 

 And I am just trying to honestly mediate between them and say 

this is what she is asking for. Can this work out? And it’s just...I 

been [sic] playing mediator for a year. 

(Emphasis sic.) (Id. at 115-116). (See also id. at 150-151). 

{¶37} Second, Oliver argues that the trial court’s conclusion that there was 

no change in circumstances necessitating a modification of the agreed-custody entry 

is against the manifest weight of the evidence because the record reflects that Emily 

interfered with or withheld visitation time. Oliver directs us to Emily’s testimony 

regarding hiring a babysitter that he argues demonstrates a change in circumstances. 

The magistrate found that Emily “began using a babysitter instead of calling [Oliver 

and Brittany] for child care duties.” (Doc. No. 137). Emily testified that she hires 

a babysitter instead of asking Oliver and Brittany to care for M.G. because Oliver 

“is not available during those times,” and it provides M.G. the opportunity to spend 

time with Emily’s children, whom Emily considers to be M.G.’s siblings. (June 5, 

2015 Tr. at 165). Notwithstanding Oliver’s argument that Emily has interfered with 

or withheld visitation time, we conclude that the record demonstrates that Emily 

encouraged M.G.’s relationship with Oliver. See McLaughlin, 2007-Ohio-1087, at 
Case No. 8-16-11 

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¶ 35 (concluding that there was “insufficient evidence to find a change of 

circumstances based upon interference with visitation, interference with 

communication, or a parent negatively discussing the nonresidential parent”). 

Indeed, Emily testified, for instance, that she does not prohibit M.G. from 

communicating with Oliver and Brittany and that she tries to accommodate 

additional visitation time between Oliver and M.G. (See id. at 140-142, 146, 149-

150, 164). 

{¶38} Third, Oliver argues that the trial court’s conclusion that there was no 

change in circumstances necessitating a modification of the agreed-custody entry is 

against the manifest weight of the evidence because the record reflects that Emily 

“recanted” the parties’ “oral agreement” to transition M.G. “back into her parents’ 

custody.” (Appellant’s Brief at 16). Based on our discussion in Oliver’s first and 

second assignments of error regarding the shared-custody agreement executed by 

the parties, which was executed by the trial court not fewer than three times, 

including the agreed-custody entry issued in 2012, Oliver’s argument is erroneous. 

Oliver agreed to the 2012 entry reflecting the shared-custody agreement between 

the parties because it was convenient for him at the time. Advancing his argument 

about an oral agreement between the parties now is not only self-serving but also 

flies in the face of the intent of a judicially recognized shared-custody agreement 

and the purpose of the change-in-circumstances test under R.C. 3109.04(E), which, 
Case No. 8-16-11 

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as we noted above, is to “provide stability in the life of a child” and “‘spare children 

from a constant tug of war.’” In re Brayden James, 2007-Ohio-2335, at ¶ 15, 

quoting Davis, 77 Ohio St.3d at 418. 

{¶39} For these reasons, we conclude that the trial court’s conclusion that 

there was no change in circumstances necessitating a custody modification is 

supported by competent, credible evidence and is not against the manifest weight of 

the evidence. As such, the trial court did not abuse its discretion by concluding 

there was no change in circumstances necessitating a custody modification. 

McLaughlin, 2007-Ohio-1087, at ¶ 38. (“After reviewing the entire record, we hold 

that the trial court did not abuse its discretion in finding no change of circumstances 

had occurred. The facts and circumstances in this case, even when considered 

together, do not constitute a change of circumstances to warrant [a modification of 

the custody order.”). 

{¶40} Because the trial court concluded that there was no change in 

circumstances, it did not need to inquire into M.G.’s best interest. Kenney v. 

Kenney, 12th Dist. Warren No. CA2003-07-078, 2004-Ohio-3912, ¶ 22, citing 

Bauer v. Bauer, 12th Dist. Clermont No. CA2002-10-083, 2003-Ohio-2552, ¶ 27 

and Wilburn v. Wilburn, 144 Ohio App.3d 279, 288 (2d Dist.2001). See also 

Eatherton, 2012-Ohio-5229, at ¶ 39 (noting that the change-in-circumstances 

“finding should be made prior to weighing the child’s best interest”). As such, we 
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decline to address any argument Oliver advances regarding M.G.’s best interest 

under his third assignment of error. Oliver’s third assignment of error is overruled. 

{¶41} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

 Judgment Affirmed 

WILLAMOWSKI and SHAW, J.J., concur. 

/jlr