[Cite as In re Guardianship of Elliot, 2010-Ohio-5405.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PUTNAM COUNTY 

 

IN THE MATTER OF 

THE GUARDIANSHIP OF: 

 CASE NO. 12-10-02 

 KATLYN NICHOLE ELLIOTT, 

[DAVID R. SCHUERMAN - 

 O P I N I O N 

 APPELLANT]. 

 

Appeal from Putnam County Common Pleas Court 

Probate Division 

Trial Court No. 20002014 

Judgment Reversed and Cause Remanded 

Date of Decision: November 8, 2010 

 

APPEARANCES: 

Todd C. Schroder for Appellant 

Gregory Hermiller for Appellee 
Case No. 12-10-02 

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PRESTON, J. 

{¶1} Appellant, David Schuerman (hereinafter “David”), appeals the 

judgment of the Putnam County Court of Common Pleas, Probate Division, 

granting a modification of David’s visitation with Katlyn Nichole Elliott 

(hereinafter “Katlyn”) and denying David’s motion to be appointed co-guardian 

and primary residential custodian of Katlyn. For the reasons that follow, we 

reverse. 

{¶2} David and Appellee, Amy Hipsher (fna Schuerman) (hereinafter 

“Amy”), were married on October 5, 1997. In 2000, the couple became aware that 

a family acquaintance, Elissa Elliott (hereinafter “Elissa”), was pregnant, but did 

not want to raise the child. David and Amy agreed to raise the child as their own. 

In August of 2000, Elissa gave birth to Katlyn. Both Amy and David were present 

during her birth. David was listed as Katlyn’s father on the birth certificate 

despite having full knowledge that he was not, nor could he be, Katlyn’s 

biological father as he and Elissa never had a sexual relationship. 

{¶3} Immediately thereafter, Amy filed a guardianship action to be 

appointed Katlyn’s guardian. The parties chose not to list David on the 

guardianship application because he had pled guilty to a charge of attempted 

corruption of a minor one year earlier.1

 On October 18, 2000, the court appointed 

 

1

This charge was based on a consensual sexual act between David and fifteen-year-old girl in September of 

1997 prior to David marrying Amy. It is undisputed by the parties that Amy was fully aware of the 

surrounding facts and circumstances of the incident at the time it occurred. 
Case No. 12-10-02 

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Amy as Katlyn’s guardian. David and Amy raised Katlyn as their own daughter. 

Katlyn had no relationship with Elissa and her biological father is believed to be 

dead due to a drug overdose. 

{¶4} In August of 2002, Elissa and David executed an acknowledgement 

of paternity at the Paulding County Health Department pursuant to R.C. 3111.23.2

 

(Nov. 6, 2009, Hrg. at 33). David’s acknowledgment of paternity was 

subsequently entered in the birth registry. (David’s Ex. 9). 

{¶5} Several years later, David and Amy began to experience difficulties 

in their marriage. On November 13, 2006, their marriage was dissolved. On 

December 8, 2006, David filed a motion with the Putnam County Juvenile Court 

requesting visitation rights with Katlyn. (Doc. No. 17). On January 16, 2007, the 

court granted David’s motion for visitation rights finding that it was in Katlyn’s 

best interest. (Doc. No. 20). The court named Amy as Katlyn’s residential parent 

and granted David visitation with Katlyn on every other weekend and selected 

holidays pursuant to Local Rule 28. (Id.). David was also ordered to be 

responsible for one-half of Katlyn’s school related expenses and one-half of her 

uninsured medical expenses. (Id.). 

 

2

 R.C. 3111.23 states in part that the “natural mother” and “the man acknowledging he is the natural father” 

may file an acknowledgment of paternity “acknowledging that the child is the child of the man who signed 

the acknowledgment.” 
Case No. 12-10-02 

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{¶6} On March 22, 2007, Amy filed a complaint for child support in the 

Van Wert County Juvenile Court. (David’s Ex. 9). In her complaint for child 

support, Amy alleged that David was Katlyn’s legal father pursuant to R.C. 

3111.25 because he signed an acknowledgement of paternity. (Id.). Amy also 

attached evidence documenting the acknowledgement to the complaint filed with 

the Office of Child Support. David agreed that it was in Katlyn’s best interest to 

pay child support. The court then issued an order that David pay child support to 

Amy. Since that time, David has complied with the court’s order, remaining 

current on his support obligation. 

{¶7} In March of 2009, David moved to Portage, Michigan where he lives 

with his new wife and three step-sons. Katlyn resides with Amy and her new 

husband in Lima, Ohio. David continued to diligently exercise his visitation with 

Katlyn despite the three-hour car ride between his and Amy’s residences. On 

September 29, 2009, Amy filed a motion for modification of visitation with the 

Putnam County Probate Court requesting that David’s visitation with Katlyn be 

reduced to two round-trip visits per year in accordance with Local Rule 28, Option 

2. (Doc. No. 25). Amy alleged that modifying David’s visitation would be in 

Katlyn’s best interest because David now resided over 180 miles from Amy’s 

home. (Id.). On October 2, 2009, David responded by filing a motion with the 

court requesting to be appointed co-guardian and to be named as Katlyn’s primary 

residential custodian. (Doc. No. 28). 
Case No. 12-10-02 

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{¶8} The court conducted an evidentiary hearing on October 22, 2009, 

where it heard testimony from Amy and Katlyn. David was also present at the 

hearing, but did not testify. During the hearing, Katlyn was asked to tell the court 

with whom she preferred to live. (Oct. 22, 2009 Hrg. at 31). At first, Katlyn was 

reluctant to answer the question, revealing that Amy had told her that she would 

no longer be able to see Amy if she expressed her opinion on the matter. (Id.). 

However, Katlyn eventually stated that she wanted to live with David. (Id.)

{¶9} The next day, on October 23, 2009, David filed an Emergency 

Motion stating that shortly after the evidentiary hearing, Amy left Katlyn with 

Elissa—Katlyn’s biological mother and a person who Katlyn barely knows—

apparently intending to permanently leave Katlyn with Elissa. (Doc. No. 36). 

David’s Emergency Motion requested the court to require Elissa to immediately 

return Katlyn to Amy. (Id.). The same day, the court granted David’s Emergency 

Motion ordering that Katlyn be returned to Amy’s physical custody subject to 

David’s visitation rights until further ordered. (Doc. No. 37). The court then 

appointed a guardian ad litem on Katlyn’s behalf to investigate and prepare a 

report for the court. (Doc. No. 42). 

{¶10} On November 6, 2006, a second evidentiary hearing was held. This 

time Katlyn expressed that she did not want to be the one to decide whether she 

lived with Amy or David. (Nov. 6, 2009 Hrg. at 107-108). David and his new 

wife also provided testimony at the hearing. Although the primary inquiry 
Case No. 12-10-02 

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focused on which living situation would be in Katlyn’s best interest, the parties 

also disputed the legal effect of David’s acknowledgement of paternity and 

whether David could be appointed co-guardian of Katlyn because he was not a 

resident of Ohio. After the conclusion of the evidentiary hearings, the court 

ordered the parties to submit their final written arguments by December 5, 2009. 

{¶11} On December 14, 2009, Katlyn’s guardian ad litem filed his report 

with the court. (Doc. No. 51). After conducting multiple interviews with the 

parties and Katlyn, visiting the homes of both Amy and David, and observing 

Katlyn in each environment, the guardian ad litem concluded that it would be in 

Katlyn’s best interest for David to be named Katlyn’s residential custodian. (Id.). 

{¶12} On February 9, 2010, the court issued its decision. The court 

expressed its concern with Amy’s actions during the proceedings when she left 

Katlyn with Elissa after Katlyn expressed her preference to live with David during 

the October 22, 2009 hearing. (Doc. No. 54). The court characterized Amy’s 

behavior as “vengeful, spiteful, and inexcusable.” (Id. at 5). In its decision, the 

court also touched upon several salient facts elicited from Amy’s testimony where 

it was revealed that since Amy had been Katlyn’s residential custodian, Katlyn 

was chronically absent from school resulting in a troublesome amount of missed 

days. The court noted that Katlyn suffered from significant problems with her 

teeth as a result of Amy neglecting to take Katlyn to routine dental exams. The 
Case No. 12-10-02 

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court was also concerned about Katlyn’s relationship with Amy’s husband, noting 

that the guardian ad litem reported that the relationship was strained. 

{¶13} The court expressed concern with David’s previous conviction of 

attempted corruption of a minor. However, the court was encouraged by the fact 

that David was now in a stable marriage, gainfully employed and maintained “a 

healthy lifestyle.” (Id. at 5). Moreover, the court noted that David’s actions were 

focused on his family and that the guardian ad litem acknowledged that Katlyn 

was a different person, in a positive manner, when she was in David’s household. 

After making these findings, the court concluded that “it would be in [Katlyn’s] 

best interest to be in the custody of [David] if it were permissible.” (Id. at 6) 

(Emphasis Added). 

{¶14} Despite finding that it was in Katlyn’s best interest to reside with 

David, the court concluded that under the current statutory law it was without the 

authority to appoint David as co-guardian because he is not a resident of Ohio. 

Furthermore, the court determined that it would not recognize David as Katlyn’s 

legal father because he had signed the affidavit of paternity knowing that he was 

not her biological father. Based on this reasoning, the court concluded that it had 

no choice but to grant Amy’s motion to modify David’s visitation with Katlyn. 

However, the court ordered David to be given visitation with Katlyn pursuant to 

Local Rule 28, Option 1, which provided David with more visitation time than 
Case No. 12-10-02 

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requested by Amy by allowing David to have three annual round-trip visits in even 

years and four in odd years. 

{¶15} On March 12, 2010, David filed his notice of appeal. (Doc. No. 60). 

David now appeals raising two assignments of error for our review. 

ASSIGNMENT OF ERROR NO. I 

THE PROBATE COURT MADE AN ERROR OF LAW 

AND/OR ABUSED ITS DISCRETION WHEN OVERRULING 

APPELLANT’S MOTION TO BE APPOINTED AS COGUARDIAN AFTER FINDING IT WAS IN THE CHILD’S 

BEST INTEREST TO RESIDE WITH HIM BUT NOT 

FINDING THAT HE WAS THE CHILD’S LEGAL FATHER 

WHICH WOULD HAVE PERMITTED HIM TO BE AN OUTOF-STATE GUARDIAN. 

{¶16} In his first assignment of error, David argues that the trial court erred 

in determining that it could not appoint David as Katlyn’s guardian because he is 

not a resident of Ohio. David maintains that the trial court’s decision was contrary 

to the current statutory law because the residency requirements for guardians 

permit a parent who resides out-of-state to be a guardian of their child. 

Accordingly, David’s primary contention under this assignment of error is that the 

trial court erred when it refused to recognize David as Katlyn’s legal father. 

{¶17} Generally, a determination regarding a guardianship is within the 

sound discretion of the trial court subject to reversal only for an abuse of 

discretion. In the Matter of the Guardianship of Grant, 3rd Dist. No. 1-02-99, 

2003-Ohio-4234, ¶ 6; In re Termination of Guardianship of Hendrickson, 152 
Case No. 12-10-02 

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Ohio App.3d 116, 786 N.E.2d 937, 2003-Ohio-1220, ¶ 11. However, the primary 

question in this assignment of error concerns a question of law. Specifically, 

whether the trial court erred in its determination that the legal effect of David’s 

acknowledgement of paternity was negated by David signing an affidavit that he 

knew to be false. Questions of law are reviewed de novo, an independent review, 

without deference to the lower court’s decision. Ohio Bell Tel. Co. v. Pub. Util. 

Comm. of Ohio (1992), 64 Ohio St.3d 145, 147, 593 N.E.2d 286. 

{¶18} In August of 2002, Katlyn’s biological mother and David executed 

an acknowledgement of paternity pursuant to R.C. 3111.23. The information of 

the acknowledgment was subsequently entered into the birth registry. As 

discussed above, in March of 2007, after Amy and David divorced, Amy filed a 

complaint for child support with Van Wert County Office of Child Support 

alleging that David was Katlyn’s father. Amy attached the acknowledgment of 

paternity executed by David to her complaint for child support. Section 3111.25 

of the Revised Code states: 

An acknowledgment of paternity is final and enforceable 

without ratification by a court when the acknowledgment has 

been filed with the office of child support, the information on the 

acknowledgment has been entered in the birth registry, and the 

acknowledgment has not been rescinded and is not subject to 

possible recission [sic] pursuant to section 3111.27 of the Revised 

Code. 

{¶19} Once the acknowledgement of paternity has been filed with the child 

support office, R.C. 3111.27 permits the person who signed the acknowledgement 
Case No. 12-10-02 

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of paternity to rescind the acknowledgment. In addition, the statute expressly 

requires that in order for the rescission to take effect certain requirements must be 

fulfilled “[n]ot later than sixty days after the date of the latest signature on the 

acknowledgment.” See R.C. 3111.27. At the time of the hearings, neither David 

nor Katlyn’s birth mother had sought to rescind David’s acknowledgment of 

paternity. 

{¶20} Section R.C. 3111.26 of the revised code provides that “[a]fter an 

acknowledgment of paternity becomes final and enforceable, the child is the child 

of the man who signed the acknowledgment of paternity, as though born to him in 

lawful wedlock.” (Emphasis Added). Consequently, courts have held that a 

formal acknowledgement of paternity, once final and enforceable, cannot be 

rebutted—even by the results of genetic testing—unless rescinded pursuant to 

R.C. 3111.28. See Galan v. Holbert, Greene App. No. 2007-CA-75, 2008-Ohio1586¶ 17; see also Thomas v. Cruz, Lorain App. No. 03CA0008247, 2003-Ohio6011¶ 14. 

{¶21} We are mindful that the trial court’s decision in this matter was 

based upon its belief that David should not be permitted “to use his own 

wrongdoing to his advantage”—namely signing an affidavit that he knew to be 

false. (Doc No. 54 at 4). However, the legislature has accounted for a scenario 

such as this one by drafting R.C. 3111.28 which permits either the person who 

signed the acknowledgment, or a guardian or legal custodian of the child to bring 
Case No. 12-10-02 

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an action to rescind on the basis of fraud. See R.C. 3111.28. The action to rescind 

must be brought “no later than one year after the acknowledgement becomes 

final.” We believe that this one-year timeframe for bringing a rescission action 

based on fraud implicitly addresses two competing, yet equally critical interests. 

The first is to prevent a person from filing a false affidavit of paternity, and the 

second is to give the child at the center of the matter a sense of stability and 

finality with regard to the identity of his or her father. Consequently, once the 

timeframe for filing a rescission action has lapsed, the man who signed the 

affidavit of paternity is deemed to be the child’s father. 

{¶22} While we recognize the unique circumstances of this case placed the 

trial court in a somewhat difficult position, we believe that the statutory law is 

clear regarding the legal effect of David’s acknowledgment of paternity. Based on 

the facts of this case, David’s acknowledgement of paternity became final when 

Amy filed for child support in March of 2007. Furthermore, no action was 

brought by either party or Katlyn’s biological mother to rescind David’s 

acknowledgment within the relative timeframes. Therefore, we find the statutory 

authority cited above mandates a finding that David is Katlyn’s legal father. 

{¶23} Having determined that David is Katlyn’s legal father, we must next 

examine whether the trial court had the authority to appoint David as Katlyn’s 

guardian even though he is an out of state resident. 
Case No. 12-10-02 

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{¶24} The trial court relied on R.C. 2109.21(C) in reaching its conclusion 

that it was without the authority to appoint David as Katlyn’s guardian because he 

is not a resident of Ohio. Section 2109.21(C) governs the residency requirements 

for fiduciaries and provides, in relevant part: 

(C)(1) A guardian shall be a resident of this state, except that the 

court may appoint a nonresident of this state as a guardian if 

any of the following applies: 

(a) The nonresident is named in a will by a parent of a minor. 

(b) The nonresident is selected by a minor over the age of 

fourteen years as provided by section 2111.12 of the Revised 

Code. 

(c) The nonresident is nominated in or pursuant to a durable 

power of attorney as described in division (D) of section 1337.09 

of the Revised Code or a writing as described in division (A) of 

section 2111.121 of the Revised Code. 

The trial court correctly noted that none of these exceptions to the residency 

requirement applied to David. However, as this Court has previously held when 

the person seeking appointment as a guardian is the parent of the ward, R.C. 

2111.08 controls over the residency restrictions listed in R.C. 2109.21(C). See In 

the matter of the Guardianship of Grant, 3rd Dist. No. 1-02-99, 2003-Ohio-4234, 

¶ 10. Section 2111.08 of the revised code provides for the natural guardianship 

rights and obligations of parent and states, in part: 
Case No. 12-10-02 

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The wife and husband3

 are the joint natural guardians of their 

minor children and are equally charged with their care, nurture, 

welfare, and education and the care and management of their 

estates. * * * 

If the wife and husband live apart, the court may award the 

guardianship of a minor to either parent, and the state in which 

the parent who is the residential parent and legal custodian or 

who otherwise has the lawful custody of the minor resides has 

jurisdiction to determine questions concerning the minor's 

guardianship. 

{¶25} Based on the language contained in R.C. 2111.08, we held that a 

probate court was not limited by the residency restrictions stated in R.C. 

2109.21(C) and was in fact authorized to award a nonresident father guardianship 

of his child if it found the facts warranted the appointment of the guardian. In the 

matter of the Guardianship of Grant, 3rd Dist. No. 1-02-99, 2003-Ohio-4234, ¶ 

13. 

{¶26} In the instant case, the trial court found that it would be in Katlyn’s 

best interest to award co-guardianship to David and name him as her primary 

residential custodian. The only impediment to the trial court’s appointment of 

David as co-guardian was its finding that David was not Katlyn’s legal father. 

However, as previously discussed, we find that David is Katlyn’s legal father 

under the current statutory law and R.C. 2111.08 expressly permits the court to 

 

3

 Keeping in line with other courts, this Court in Grant construed the term ‘husband and wife,’ in the 

context of R.C. 2111.08 to mean ‘parents,’—i.e. mother and father. See also, In re Guardianship of Moyer

(1941), 68 Ohio App. 319, 40 N.E.2d 695; In the matter of Guardianship of Warner, (September 2, 1987), 

Medina App. No. 1600. 
Case No. 12-10-02 

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appoint a non-resident parent as their child’s guardian. Therefore, we conclude 

that the trial court erred when it found that it had no authority to appoint David as 

Katlyn’s guardian. 

{¶27} David’s first assignment of error is, therefore, sustained. 

ASSIGNMENT OF ERROR NO. II 

THE PROBATE COURT’S CONCLUSION THAT 

APPELLANT COULD NOT BE APPOINTED AS GUARDIAN 

WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE AFTER FINDING IT WAS IN THE CHILD’S 

BEST INTEREST TO RESIDE WITH HIM BUT NOT 

FINDING THAT HE WAS THE CHILD’S LEGAL FATHER 

WHICH WOULD HAVE PERMITTED THE APPOINTMENT 

OF AN OUT-OF-STATE GUARDIAN. 

{¶28} In his second assignment of error, David argues that the trial court’s 

decision was against the manifest weight of the evidence. As the basis for this 

contention, David argues that despite its finding that was in Katlyn’s best interest 

to appoint David as her residential custodian, the trial court erroneously concluded 

it could not appoint David as guardian because it refused to recognize him as 

Katlyn’s legal father. However, as we found in the first assignment of error, 

David is Katlyn’s legal father under the current law. Therefore, we find David’s 

second assignment of error is rendered moot. 

{¶29} Accordingly, David’s second assignment of error is overruled. 
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{¶30} Having found error prejudicial to the appellant herein in the 

particulars assigned and argued, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI, P.J., and ROGERS, J., concur. 

/jlr