[Cite as A.L. v. K.T., 2016-Ohio-2865.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 FULTON COUNTY 

A.L. Court of Appeals Nos. F-15-002 

 F-15-003 

 Appellee 

 Trial Court No. 09DV000151 

v. 

K.T. DECISION AND JUDGMENT

Appellant Decided: May 6, 2016 

* * * * * 

 Jeffrey L. Robinson, for appellee. 

 Thomas P. Kurt, for appellant. 

* * * * * 

JENSEN, P.J. 

I. Introduction 

{¶ 1} Appellant-mother, K.T., appeals a decision by the Fulton County Court of 

Common Pleas to designate appellee-father, A.L., as the primary residential parent and 

legal custodian of the parties’ three youngest children. Because we find that the trial 

court did not abuse its discretion, we affirm. 
2.

II. Statement of Facts and Procedural History 

{¶ 2} The parties were married in 2001. At the time, mother had two children 

from a previous relationship, and father adopted them. Those children are currently aged 

18 and 16. The parties also have three biological children together, and their current ages 

are 14, 11, and 10. It is these younger children who are at the center of this appeal. 

{¶ 3} Father filed a complaint for divorce in 2009. While the case was pending, 

the trial court ordered a psychologist to examine the parties and the children. The court 

also appointed the children a guardian ad litem (“GAL”). 

{¶ 4} In 2011, the parties entered into an agreement to terminate their marriage, 

including a shared parenting plan. Until recently, the parties continued to share custody 

under a “temporary order for a shared parenting plan.” 

{¶ 5} At issue here is father’s “motion for reallocation of parental rights and 

responsibilities,” filed in October of 2012. Father requested that he be named the 

residential parent and legal custodian of “the minor children,” based on mother’s alleged 

pattern of conduct “designed to alienate the children from their father.” 

{¶ 6} Over the course of the next two and one-half years, there were four hearings 

during which the court heard testimony and observed the parties. The final hearing took 

place on March 12, 2015. Both father and mother testified that shared parenting was not 

in the best interests of the children. Mother testified that the younger children had a hard 

time acclimating between the parties’ two homes. Father testified, “I would recommend 
3.

Judge that you make a decision one way or the other. Whether it be with her or whether 

it be with me, I think these kids just need to have one home that they can call a home.” 

{¶ 7} The GAL, who began his relationship with the children in 2012, visited with 

them twice in 2015 and prepared an updated report. In it, he was deeply critical of both 

parents but ultimately recommended that shared parenting continue. 

III. The Trial Court’s Decision and Judgment Entry 

{¶ 8} In reaching its decision, the trial court characterized the parties’ relationship 

as toxic. It was particularly critical of mother and the two older children, whom the court 

faulted for “actively * * * undermining * * * Father’s relationship with his three younger 

children.” The court concluded that continuing the shared parenting plan was not in the 

best interest of the children. Instead, it designated mother as the primary residential 

parent and legal custodian of the two older children, with father the right to exercise 

reasonable visitation. It designated father as the primary residential parent and legal 

custodian with regard to the three younger children, with mother to have the right to 

exercise reasonable visitation and companionship with them. It ordered child support to 

be calculated based upon the standard work-sheet schedule. 

{¶ 9} The mother appealed. 

IV. Appellant-Mother’s Assignments of Error 

I. The trial court abused its discretion in ordering “split custody” of 

the parties’ minor children without making findings required by Ohio 

Revised Code § 3109.04(F)(2). 
4.

II. The trial court abused its discretion in removing the residential 

custody of three of appellant’s five minor children from appellant on the 

basis of a psychological report which in fact recommended that the all five 

of appellant’s five minor children remain with together [sic] and in the 

residential custody of appellant. 

III. The trial court abused its discretion in removing the residential 

custody of three of appellant’s five minor children from appellant despite 

the guardian ad litem’s two reports which recommend that all five children 

remain in the custody of appellant. 

V. Law and Analysis 

{¶ 10} An appellate court reviews a trial court’s decision regarding a child custody 

determination under an abuse of discretion standard. In re Brown, 142 Ohio App.3d 193, 

198, 755 N.E.2d 365 (12th Dist.2001). An appellate court must give such discretion to 

the trial court in these cases because of the nature and significance of the proceeding, and 

because the trial court is in a unique position to weigh the credibility of witnesses and 

evidence. Miller v. Miller, 37 Ohio St.3d 71, 73-74, 523 N.E.2d 846 (1988). To find an 

abuse of discretion, an appellate court must conclude that the lower court’s attitude was 

unreasonable, arbitrary, or unconscionable. Id. at 74. 

{¶ 11} In her first assignment of error, mother alleges that the trial court abused its 

discretion by failing to make “findings required by R.C. 3109.04(F)(2).” Although 
5.

mother makes reference to section (F)(2) of R.C. 3109.04, the argument portion of her 

brief references only section (F)(1) of the statute. 

{¶ 12} By way of clarification, R.C. 3109.04(F)(1) provides criteria to a court 

when it is assessing the best interests of the child for purposes of allocating parental 

rights and responsibilities, whether in an original decree or modification thereof. By 

contrast, section (F)(2) applies when a court is deliberating over “whether shared 

parenting is in the best interests of the child.” Both sections require a court to consider 

“all relevant factors,” and both include their own list of specific factors that the court 

“shall” also consider, including the recommendation of a guardian ad litem. R.C. 

3109.04(F)(2)(e). 

{¶ 13} Irrespective of which section mother intended to cite, the essence of her 

argument is that the trial court failed to articulate its findings or provide details when it 

allocated parental rights and responsibilities. 

{¶ 14} The residential parent and legal custodian is the person with the primary 

allocation of parental rights and responsibilities. R.C. 3109.04(A)(1); Fisher v. 

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 23. 

{¶ 15} We disagree with mother that the trial court failed to articulate its rationale 

when designating father as the residential parent and legal custodian of the three youngest 

children. Clearly, the court was troubled by the presence of “parental alienation.” The 

court found that the two older children were “actively involved in undermining” their 
6.

younger siblings’ relationship with their dad. The court opined that the situation “cannot 

be countenanced, nor will it be allowed to continue.” 

{¶ 16} The court also observed that the three youngest children were “in the 

middle of a very stressful situation” which it likened to walking a “very tight ‘high wire’” 

with little by way of a safety net. 

{¶ 17} Finally, the trial court lamented that the concerns expressed by the 

psychologist back in 2010 had not only worsened but had proven to be prophetic in that 

the mother vilifies the father, overstates problems, and implies that father poses a threat 

to them. 

{¶ 18} The court also cited with approval the observations made by the 

psychologist that “[father] has a genuine interest in and concern about the children * * * 

He does and would take a more traditional, structured, and limit setting relationship and 

role with the children.” Based on all these findings, the court concluded that shared 

parenting “has not worked” and that the children should be separated. 

{¶ 19} A review of the record indicates that the lower court engaged in a thorough 

evaluation of the relevant factors, before designating father as the primary residential 

parent and legal custodian of the three younger children. We see no evidence that the 

trial court acted arbitrarily, unreasonably or unconscionably. Therefore, we find that 

mother’s first assignment of error is not well-taken. 
7.

{¶ 20} We consider mother’s second and third assignments of error together. In 

them, mother alleges that the trial court abused its discretion in failing to follow the 

opinion of the psychologist and guardian ad litem, respectively. 

{¶ 21} The psychologist prepared a 52-page report on October 1, 2010. At that 

time, mother, father, and all five children were evaluated and observed. The psychologist 

recommended that the children remain together and that mother have the primary 

parenting responsibility with father having liberal visitation. The psychologist made the 

recommendation “with some tentativeness because I am not convinced that mother, who 

has been acting in a fashion that is somewhat alienating in order to assure her relationship 

with her children * * * will be able to contain her style of denigration of him to them.” 

{¶ 22} More recently, the GAL recommended that the “present parenting time 

schedule” continue. Nonetheless, the GAL also observed the older children’s display of 

animosity toward their father was causing anxiety for the three younger children. 

{¶ 23} “A trial court is not bound to follow a guardian ad litem’s recommendation.” 

(Citation omitted.) Lumley v. Lumley, 10th Dist. Franklin No. 09AP-556, 2009-Ohio-6992, 

¶ 46. “As the fact finder, the trial court determines the guardian ad litem’s credibility and 

the weight to be given to the guardian ad litem’s recommendation. Because assessment of 

the credibility and weight of the evidence is reserved for the trial court, we will not second 

guess the court’s decision to disregard the guardian ad litem’s recommendation.” (Citation 

omitted.) Id., citing Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). 

See also Bomberger-Cronin v. Cronin, 2d Dist. Greene No. 2014-CA-4, 2014-Ohio-2302, 
8.

¶ 27, and MacDonald v. MacDonald, 8th Dist. Cuyahoga No. 96099, 2011-Ohio-5389, 

¶ 16-17. 

{¶ 24} The opinions of the psychologist and guardian ad litem were just two of the 

many factors the court considered when allocating parental rights. Further, the trial court 

concurred in large part with their observations, even if it ultimately disagreed with their 

recommendation. We find that the trial court sufficiently articulated its decision to 

deviate from that recommendation, and we will not second guess the court’s judgment, 

absent evidence that the court abused its discretion. Appellant’s second and third 

assignments of error are not well-taken. 

{¶ 25} We have reviewed the entire record in the matter. We find no abuse of 

discretion in the trial court’s decision (1) to designate appellant-mother as the primary 

residential parent and legal custodian of the two older children or (2) to designate 

appellee-father as the primary residential parent and legal custodian as to the three 

younger children. Appellant’s three assignments of error are not well-taken. 

{¶ 26} The judgment of the Fulton County Court of Common Pleas is hereby 

affirmed. Costs are assessed to appellant in accordance with App.R. 24. 

Judgment affirmed. 
9.

 A.L. v. K.T. 

 C.A. Nos. F-15-002 

 F-15-003 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Thomas J. Osowik, J. _______________________________ 

JUDGE 

Stephen A. Yarbrough, J. 

_______________________________ 

James D. Jensen, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.