[Cite as In re C.K.W., 2015-Ohio-3288.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

IN THE MATTER OF: : 

 C.K.W. : CASE NO. CA2015-01-011 

 

 : O P I N I O N

 8/17/2015 

 : 

 : 

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

JUVENILE DIVISION 

Case No. 10-C01157 

John Kaspar, 130 East Mulberry Street, Lebanon, Ohio 45036, for petitioner-appellant 

S.D., 3655 Sarah Street, Franklin, Ohio 45005, respondent-appellee, pro se 

 PIPER, P.J.

{¶ 1} Petitioner-appellant, A.W. (Father) appeals a decision of the Warren County 

Court of Common Pleas, Juvenile Division, granting custody of his child to respondentappellee, S.D. (Mother). 

{¶ 2} Father and Mother were never married, but had a child together, C.K.W. 

Mother and Father had shared parenting of the child, with the child essentially spending one 

week with Father and then one week with Mother. Recently, Father married a woman who is 

enlisted in the Air Force. Father's new wife was re-stationed in Colorado and Father asked 
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Mother if he could take the child with him and his wife to Colorado, where they had bought a 

house and resided in an area with good schools. Mother agreed, believing the move to be in 

the "best interest" of the child. However, Mother later called Father and told him that she had 

changed her mind, and that she would not allow Father to take the child with him to Colorado. 

{¶ 3} Father and Mother filed alternative motions seeking to terminate shared 

parenting and each moving for custody of the child, who was five years old at the time of the 

motions. At a hearing on the matter, the magistrate heard testimony from Father, Mother, the 

child's preschool teacher, as well as maternal grandmother. The child was not interviewed. 

The magistrate terminated the shared parenting agreement and awarded custody of the child 

to Mother. Father filed objections to the magistrate's decision, which were overruled by the 

juvenile court. Father now appeals the juvenile court's decision, raising the following 

assignments of error. Because the assignments are interrelated, we will address them 

together.1

{¶ 4} Assignment of Error No. 1: 

{¶ 5} THE TRIAL COURT'S AWARD OF CUSTODY OF THE MINOR CHILD OF 

THE PARTIES CONSTITUTED AN ABUSE OF DISCRETION. 

{¶ 6} Assignment of Error No. 2: 

{¶ 7} THE TRIAL COURT'S FINDING THAT AWARDING CUSTODY OF THE 

MINOR CHILD OF THE PARTIES TO MOTHER WAS IN THE BEST INTEREST OF THE 

MINOR CHILD WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE 

PRESENTED. 

{¶ 8} Father argues in his two assignments of error that the juvenile court erred in 

 

1. Mother has not filed an appellee's brief. As such, and according to App.R. 18(C), we "may accept the 

appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably 

appears to sustain such action." 
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awarding custody of the child to Mother. 

{¶ 9} A juvenile court has discretion in custody matters, and its decision in such 

matters will not be reversed absent an abuse of that discretion. In re A.D., 12th Dist. Fayette 

No. CA2012-07-023, 2013-Ohio-1308, ¶ 15. An abuse of discretion is more than an error of 

law or judgment; it implies that the trial court acted unreasonably, arbitrarily, or 

unconscionably. Id. While the trial court has considerable discretion in fashioning a custody 

award, its discretion is not absolute and is subject to reversal upon a showing of abuse. 

Miller v. Miller, 37 Ohio St.3d 71 (1988). 

{¶ 10} According to R.C. 3109.04(E)(2)(c), a court may terminate a shared parenting 

decree upon request of one or both of the parents, or if the shared parenting plan is not in 

the best interest of the child. The decision to terminate a shared parenting plan and to then 

award custody of the child to one parent over the other is determined by a consideration and 

balancing of the factors set forth in R.C. 3109.04(F)(1) and (F)(2).2

 

{¶ 11} The factors within R.C. 3109.04(F)(1) that are relevant to the case sub judice 

include: the wishes of the child's parents regarding the child's care, the child's interaction and 

interrelationship with the child's parents, siblings, and any other person who may significantly 

affect the child's best interest, the child's adjustment to the child's home, school, and 

community, the parent more likely to honor and facilitate court-approved parenting time rights 

or visitation and companionship rights, whether the residential parent or one of the parents 

subject to a shared parenting decree has continuously and willfully denied the other parent's 

right to parenting time in accordance with an order of the court, and whether either parent 

has established a residence, or is planning to establish a residence, outside this state. 

 

2. Father does not argue that the termination of the shared parenting agreement was an abuse of discretion. 

Instead, Father argues that the juvenile court's decision to award custody to Mother was an abuse of discretion. 

As such, we will focus our analysis on the factors as set forth in R.C. 3109.04(F)(1). 
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{¶ 12} A review of the record indicates that the juvenile court abused its discretion in 

awarding custody of the child to Mother, as the juvenile court's findings were sometimes 

unsupported by the record and did not properly balance statutory factors. The record 

indicates that the reason for the custody request was predicated upon Father's move to 

Colorado. This will undoubtedly disrupt the child's life in that he will be moved from Ohio and 

leave behind family members on both Mother's and Father's sides of the family. The juvenile 

court was correct to place ample weight on that evidence. However, the child's move from 

Ohio to Colorado is but one factor for consideration, and was not properly balanced against 

equally significant factors. 

{¶ 13} Regarding the wishes of the child's parents as to the child's care, the record 

indicates that both Father and Mother desire to raise the child, and both moved for custody. 

Although Mother initially agreed that the move to Colorado was in the child's "best interest," 

she later changed her mind. When asked why she changed her mind, Mother relied solely 

on the fact that the child would miss his Ohio family. Otherwise, Mother did not express any 

concerns regarding Father's ability to raise or care for the child. 

{¶ 14} Specific to the child's interaction and interrelationship with his parents, siblings, 

and any other person who may significantly affect his best interest, as well as the child's 

adjustment to his home, school, and community, the juvenile court gave great weight to the 

fact that all of the child's family resides in Ohio. Stated once more, the court was correct to 

assign ample weight to the fact that the child's family lives in Ohio and that he has spent his 

entire life in the same community. However, the record overwhelmingly demonstrates that 

the child's interaction and interrelationship with Mother and her Ohio family is not always 

beneficial to the child, and that placement with Mother is not in the child's best interest. 

{¶ 15} Regarding the child's interaction and relationship with Mother and Father 

specifically, the record clearly indicates that Father has made the child a priority and has 
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provided consistency and structure in the child's life with an emphasis on education, while 

Mother has not. Similarly, the record demonstrates that the child's adjustment to his 

community and school is markedly different depending on who is in charge of the child's care 

for that particular week. 

{¶ 16} The child's preschool teacher testified that Father has consistently transported 

the child to school, while Mother did not, and that Father came to both parent-teacher 

conferences, while Mother did not. The teacher also testified that when the child is with 

Father, the child's attendance is consistent, but when with Mother, the child's attendance was 

"very spotty." Moreover, when the child was with Mother, the child came to school "very 

tired" and would not focus during class. The child's behavior at school was negative during 

the time that Mother had custody, while the child's behavior was better when Father was the 

custodial parent. The teacher also testified that the child completed assigned homework 

when with Father, but not with Mother. 

{¶ 17} Similarly, Father testified that he would receive calls from the child's school and 

teachers asking why the child was not in school on days that the child was with Mother. 

Father testified to his belief that the child would have a more consistent life with him, as 

Father helps the child focus on school and homework, while Mother does not. For example, 

Mother once told Father that school is not important for the child, and Mother later admitted 

during her cross-examination that education is not a priority in her family.3

 Mother did not 

have the child attend a school-camp to help the child transition from pre-school to 

kindergarten, and when asked why, she stated that the child slept too late and that he went 

fishing with his grandfather instead of going to school. 

 

3. The juvenile court heard testimony that the only family member in Mother's family who has a high school 

diploma/GED is Mother's father, that Mother does not make the child's attendance in school and school-related 

activities a priority, and that Mother's school-age brother with whom she lives has truancy issues. 
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{¶ 18} Father also testified to the conditions in which Mother was raising the child, 

including that Mother had approximately ten addresses and different living arrangements in 

the past two years, and that sometimes when he would pick up the child for visitation, Mother 

and her other children, including C.K.W., were located at a different address than where 

Father had dropped off the child for visitation the week before. The various residences 

where Mother and her children would stay belonged to family members, friends, or boyfriends 

of Mother, but Mother did not maintain any consistent housing on her own. Mother also had 

no less than six different phone numbers in the two years preceding the hearing. 

{¶ 19} During his testimony, Father described the residence where Mother was 

currently living with her extended family and her children, including, C.K.W. The house had 

no back door, uninstalled insulation, exposed wiring, missing door knobs on the doors, and 

exposed plywood that was rotten. Also, the only room in the house that had drywall was the 

bathroom, and there was no furnace in the home. Maternal grandmother testified that there 

were holes in the flooring, but that the children who lived there, including C.K.W., knew to be 

careful around the holes, and that some windows in the home were broken. The record 

indicates, and both Mother and her mother confirmed during their testimony, that children 

services had investigated the condition of the home on multiple occasions and was engaged 

with the family to make the home more livable for the children. 

{¶ 20} Father also testified that while he takes the child to all of the child's medical 

appointments, Mother only attends some and also failed to fill the child's prescription for an 

inhaler that is required on a daily basis. Father also testified that the child is always tired 

upon the child's return from visits with Mother, but that when the child is with him, the child 

has a regulated napping schedule and consistent bed time. Father testified that the child is 

well-behaved when with him, while Mother testified the child does not behave with her. The 

child's behavioral issues when with Mother include screaming, calling her names, and 
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throwing temper tantrums. 

{¶ 21} Mother also admitted that she has not had consistent employment in her past, 

and is on food stamps. She has been in two car accidents, one of which was her fault and 

occurred when she was driving on a suspended driver's license. Mother had previously lost 

her license as a result of a DUI offense, and had not yet regained a valid driver's license. 

Mother testified that she has a pending judgment as result of the car accident against her for 

$32,000 and that she cannot get her license back until she claims bankruptcy and discharges 

the judgment. Mother had no viable transportation option, as her mother did not drive, and 

her father is a long-haul truck driver who can be gone for weeks at a time. 

{¶ 22} The fact that Mother does not have a valid driver's license or consistent 

transportation has affected the way in which she visited with the child, or did not visit with the 

child, as the case may be. Father, Mother, and Maternal grandmother all testified that 

Mother had missed visitation with the child because she lacks transportation, or that she 

would be late picking the child up because she was trying to arrange last-minute 

transportation. The record demonstrates that either Mother would be late, sometimes by 

hours, or not pick the child up at all on countless occasions.4

 For this reason, and after 

months of Mother failing to abide by the designated pickup time, Father began to deny 

Mother visitation when she was late in getting the child. 

{¶ 23} The juvenile court placed significant weight on the fact that Father had denied 

Mother some visitation, and expressed concerns that Father would deny Mother visitation in 

the future when analyzing the factors of which parent would more likely honor and facilitate 

court-approved parenting time and whether either parent continuously and willfully denied the 

other parent's right to parenting. While the juvenile court rightly indicated that Father denied 

 

4. Mother also freely admitted that she missed other periods of vitiation because she was intoxicated and could 

not pick up the child. 
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Mother's visitation when Mother was late in getting the child, the juvenile court's concern that 

Father would deny future visitation is not supported by the record. 

{¶ 24} First, the juvenile court's findings do not recognize the fact that in denying 

Mother visitation, Father was in compliance with the shared parenting plan previously 

adopted by the court. According to the shared parenting plan in place, 

the transporting parent for parenting time shall have a grace 

period of fifteen minutes for pick up and delivery if both parties 

live within thirty miles of each other. * * * In the event the nonresidential parent exceeds the grace period, that period of 

parenting time is forfeited unless prior notification and 

arrangements have been made * * *. Repeated violations by 

either parent shall be cause for granting a modification of the 

parenting order. 

(Emphasis added.) The record demonstrates that on numerous occasions, Mother was more 

than 15 minutes late when picking up the child, without first making prior arrangements to 

pick up the child at a different time. Thus Father had a legitimate justification for denying 

Mother visitation on numerous occasions. 

{¶ 25} Despite the juvenile court's indication that it "finds it difficult to believe the 

Father is likely to facilitate visitation, encourage the sharing of love, affection, and contact 

between the child and the other parent," the record simply does not support a finding that 

Father wrongly denied visitation to Mother or that Father would not facilitate visitation in the 

future. Instead, Mother admitted during her testimony that Father never denied her visitation 

unless she was late, and Father testified that he would pay for the child to fly back to Ohio to 

visit with Mother. Father also testified that he would encourage the child to communicate 

with Mother by telephone and visual media, such as FaceTime. No evidence was presented 

that Father directly or indirectly obstructed, interfered with, or diminished the mother-child 

relationship. 

{¶ 26} The juvenile court's decision also relied upon there being no evidence in regard 
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to the child's relationship with Father's wife. For this reason, the juvenile court concluded that 

"a move to Colorado still presents many unknowns," and "there was no other evidence 

presented, aside from Father's mere conjectures, to substantiate that life for [the child] will be 

better in Colorado." However, this finding is not supported by the record. There is no 

indication in the record, whatsoever, that the child did not have a beneficial relationship with 

Father's new wife, and Mother never once indicated that Father's wife was a problem or that 

having the wife in the child's life was detrimental to him. Moreover, the record is replete with 

reasons why Father has provided a more stable life for the child and why his having custody 

is in the child's best interest. While the juvenile court considered the evidence as being 

"Father's mere conjectures," the evidence was deduced from uncontroverted testimony, 

including the child's teacher, Mother's own testimony, as well as the testimony from maternal 

grandmother. 

{¶ 27} We do not enter this decision lightly. We are completely aware of the broad 

discretion given to trial courts when making custody determinations. However, the two 

factors heavily relied upon by the juvenile court regarding the child missing his Ohio family 

and Father denying Mother visitation were not properly weighed against all of the other 

factors that weigh heavily in favor of Father having custody. The record does not support the 

juvenile court attributing to Father an intention to deny Mother a relationship with her son. 

And, without doubt, the child will miss family members just as he would miss the extensive, 

positive influence Father has had in the child's life thus far. Yet, when giving weight to the 

factors involved, the child's best interest is paramount. The juvenile court's decision is 

reversed as we find that pursuant to R.C. 3109.04 and App.R. 12(B), substantial justice has 

not been done the party complaining and Father is entitled to custody as a matter of law. 

See Mary B v. Zollie M., 6th Dist. Lucas No. L-96-120, 1997 WL 90612 (Feb.28, 1997) 

(granting custody of a child to its mother despite the trial court granting custody of the child to 
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its grandparents). Furthermore, given the record in this case, in conjunction with Mother's 

failure to file a brief, it is readily apparent that Father is entitled to custody. In re M.B., 9th 

Dist. Summit No. 26004, 2012-Ohio-687. We also remand the case so that the juvenile court 

can establish proper child support in light of the change of custody. 

{¶ 28} Judgment reversed and custody of the child is awarded to Father. The matter 

is remanded for further proceedings consistent with this opinion. 

S. POWELL and HENDRICKSON, JJ., concur.