[Cite as In re B.J.M., 2013-Ohio-2505.]

STATE OF OHIO ) IN THE COURT OF APPEALS OF OHIO 

) 

JEFFERSON COUNTY ) SS: SEVENTH DISTRICT 

IN RE: ) CASE NO. 12 JE 12 

) 

B.J.M. ) 

) JUDGMENT ENTRY 

 ) 

) 

For the reasons stated in the Opinion rendered herein, the assignments of 

error are overruled and it is the final judgment and order of this Court that the 

judgment of the Court of Common Pleas, Juvenile Division, of Jefferson County, 

Ohio, is affirmed. Costs to be taxed against Appellant. 

______________________________ 

______________________________ 

______________________________ 

JUDGES. 
[Cite as In re B.J.M., 2013-Ohio-2505.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

IN RE: ) CASE NO. 12 JE 12 

) 

B.J.M. ) 

) OPINION 

 ) 

) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas, Juvenile Division, of Jefferson 

County, Ohio 

Case No. 2006 PA 00005 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellant: Atty. Francesca T. Carinci 

Suite 904-911, Sinclair Building 

Steubenville, Ohio 43952 

For Defendant-Appellee: Atty. John J. Mascio 

325 North Fourth Street 

Steubenville, Ohio 43952 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: June 12, 2013
[Cite as In re B.J.M., 2013-Ohio-2505.]

WAITE, J. 

{¶1} Appellant, mother of the minor child, and Appellee, natural father of the 

minor child, were never married. Appellee was identified as the child’s father in an 

administrative paternity determination and ordered to pay child support. Although 

there was no visitation order or parenting agreement, both parents and their 

extended families were liberally involved in the child’s life. Mother married in October 

of 2011 and announced plans to relocate to Virginia. Father, who had enjoyed 

unlimited access to the child, filed a motion to allocate custody and prevent Mother 

from leaving the state with the child until a custody determination was made. The 

juvenile court granted Father’s motion, and a custody hearing was held. The court 

ultimately awarded custody to Father and Mother filed an appeal from that entry. The 

record reflects that the juvenile court properly applied the statutory requirements for 

making an initial custody determination and the decision was supported by 

competent credible evidence. Hence, the judgment of the juvenile court is affirmed. 

Factual and Procedural History

{¶2} The court originally took jurisdiction over the juvenile (“M.”), who is the 

subject of Father’s motion to allocate custody, pursuant to a January 12, 2006 

administrative paternity determination. The court recognized the paternity 

determination and resulting administrative support order and had these filed with the 

court. Apart from entering the support order, the court made no allocation of parental 

rights and the parties did not formally enter into a visitation or parenting agreement at 

that time. According to both parties, without court involvement they worked out a 

schedule that benefitted both of them and allowed M. to have time with both parents. 
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Father’s child support obligation was deducted directly from his pay. Various 

adjustments had been made to the amount of the support order when Father’s 

household income changed between 2006 and 2010. At the time of the custody 

hearing, he was current on his obligations. 

{¶3} On October 12, 2011, Father filed his motion for allocation of parental 

rights and responsibilities and an ex parte motion to prevent Mother from leaving the 

county with M. Mother opposed the ex parte motion, contending that the schedule 

proposed by the court would cause an undue hardship because she had already 

cancelled her lease in Jefferson County, enrolled M. in school in Virginia, and arguing 

that there was no existing order establishing a parenting schedule. The trial court 

granted Father’s ex parte motion and established a parenting schedule for the two to 

follow while proceedings on the motion for custody continued. According to both 

parties and the court, Mother complied with the terms of the court’s interim parenting 

schedule. It is clear that Mother’s proposed move to Norfolk, Virginia with her new 

husband was the impetus for the motion. Father alleged in his motion, and Mother 

denied, that although Mother was the custodial and residential parent, M. primarily 

lived with the paternal grandmother, who attended parent-teacher conferences, 

purchased clothing, took M. to and from school, and provided other financial support. 

At the time of the motion, Father was employed and living with his wife and two 

younger children. At the time, Mother, who also has two other children from another 

relationship, was unemployed. 
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{¶4} A hearing on the motion to allocate custody was held before the 

magistrate on November 30, 2011. The court heard testimony from both parents as 

well as Mother’s husband, the paternal grandparents, maternal aunt, kindergarten 

teacher, and a family friend from each side. The court noted that M. spent 

considerable time with the paternal grandmother, who provided child care when both 

parties were working and the child was not in school. It appears that M. generally 

slept at Mother’s house but would stay with the paternal grandmother, according to 

M.’s preference and on days when she would take M. to school in the morning. 

Mother, when she was working, would pick M. up from the child’s paternal 

grandmother after work. Father, who works a great deal, would visit M. at his 

mother’s house after work, approximately three times a week, generally for three 

hours. M. would also visit Father’s house. It appears that M.’s free time was most 

frequently spent with Mother or with the paternal grandmother. 

{¶5} Mother confirmed during the hearing that while she worked M. stayed 

with the paternal grandmother, but denied that M. spent the majority of time with the 

grandmother, as described by Father’s family witnesses. Father and his witnesses 

offered some testimony that Mother did not keep a clean house, which was disputed. 

{¶6} The court indicated that a major concern was Mother’s decision to leave 

Jefferson County, where M. had lived since birth and had a robust support system, to 

relocate to Virginia, where M. would only know Mother and her husband. Father and 

his family emphasized that Mother had dated her husband for little more than a 

month before they were married. According to Father, he learned of the marriage 
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and relocation plans via Facebook. According to Mother she and her husband first 

met seven years before, when he was 14, and the two of them kept in touch 

continually via telephone, talking once or twice a week. During this seven-year 

period, he was deployed twice by the U.S. Navy. According to Mother’s husband, he 

had very little contact with anyone, including his own mother, when he was deployed. 

He claimed his telephone contact with Mother began in 2006, rather than 2004, and 

was generally by text. The couple met in person at a wedding on August 20, 2011 

and began dating on August 27. They got engaged on October 6, 2011 and were 

married the next day. The court noted Father’s concern with the duration of the 

courtship, the lack of time spent together, and the limited interaction M. had with 

Mother’s new husband due to the newness of their relationship. 

{¶7} Mother expressed her concern with Father’s general lack of 

involvement with M. and his reliance on his mother to support M. in his absence. She 

testified that Father attended only one or two of fifteen T-ball games and did not 

attend any parent-teacher conferences during M.’s kindergarten year. 

{¶8} The December 21, 2011 magistrate’s decision explicitly lists the best 

interest factors that were considered when making the recommendation that Father 

be allocated custody. On January 4, 2012, Mother filed a timely objection to the 

magistrate’s decision and requested that she be given the option of remaining in 

Jefferson County and retaining custody because there had been no finding that she 

was unfit. The trial court overruled her objections, granted Father custody, and 
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established visitation rights in an April 13, 2012 judgment entry. Mother filed a timely 

appeal from this order on May 9, 2012. 

Argument and Law

Assignment of Error No. 1

THE MAGISTRATE ERRED BY FINDING THAT IT WAS IN THE BEST 

INTEREST OF THE CHILD TO REALLOCATE PARENTAL RIGHTS 

AND RESPONSIBILITIES, CHANGING CUSTODY FROM 

APPELLANT TO THE APPELLEE FOR THE SOLE REASON THE 

APPELLANT EXPRESSED THE DESIRE TO LEAVE THE STATE. 

Assignment of Error No. 2

THE COURT ERRED IN NOT ISSUING A CONDITIONAL ORDER 

GRANTING THE APPELLANT AN OPPORTUNITY TO MAINTAIN 

CUSTODY IF SHE WOULD NOT RELOCATE TO VIRGINIA. 

{¶9} Both of Mother’s assignments of error address alleged defects in the 

process and standard used to allocate custody of M. For this reason they will be 

considered together. Mother points out that there has been no previous allocation of 

custody of M. and that she, as an unwed mother, was both the custodial and 

residential parent by default. Mother concedes that in the absence of a prior custody 

decree it is not necessary to find change of circumstances has occurred in order to 

allocate custody. Mother contends, however, that a decision to move out of state 

does not constitute a change of circumstances if no move has yet taken place. She 

then argues that because she has not yet moved and triggered a change of 
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circumstances, the court could not reach the issue of whether a change in custody 

would be in the best interests of M. Mother also argues that prior to issuing a 

custody decision, the trial court should have given her the option to retain custody if 

she decided not to move to Virginia. Mother concludes by stating that relocation 

cannot be the sole consideration when a court considers either the best interests of 

the child or the change of circumstances. She urges that the court in this instance 

erred by relying solely on the proposed relocation as the rationale for granting Father 

custody. 

{¶10} Both parties correctly note that the trial court has issued no prior 

custody decree and that the mother therefore retained the custodial and residential 

status conferred on her by statute. R.C. 3109.042. (“An unmarried female who gives 

birth to a child is the sole residential parent and legal custodian of the child until a 

court of competent jurisdiction issues an order designating another person as the 

residential parent and legal custodian.”) The second portion of R.C. 3109.042 

instructs the court “designating the residential parent and legal custodian of a child” 

to “treat the mother and father as standing upon an equality.” Both parents also 

recognize that when a court is making an initial custody determination, the decision is 

to be made “in a manner consistent with the best interest of the [child].” R.C. 

3109.04(A)(1). This is not the same standard applied if a court is modifying “a prior 

decree allocating parental rights and responsibilities for the care of children.” R.C. 

3109.04(E)(1)(a). If a court is modifying a prior decree, in addition to the best 

interests of the child the court must first determine whether, “based on facts that have 
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arisen since the prior decree or that were unknown to the court at the time of the prior 

decree, * * * 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.” R.C. 

3109.04(E)(1)(a). Under either standard, when determining the best interest of the 

child, the court is required to consider “all relevant factors” which include, but are not 

limited to: 

(a) The wishes of the child’s parents regarding the child’s care; 

(b) If the court has interviewed the child in chambers pursuant to 

division (B) of this section regarding the child’s wishes and concerns as 

to the allocation of parental rights and responsibilities concerning the 

child, the wishes and concerns of the child, as expressed to the court; 

(c) 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; 

(d) The child’s adjustment to the child’s home, school, and community; 

(e) The mental and physical health of all persons involved in the 

situation; 

(f) The parent most likely to honor and facilitate court-approved 

parenting time rights or visitation and companionship rights; 
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(g) Whether either parent has failed to make all child support 

payments, including all arrearages, that are required of the that parent 

pursuant to a child support order under which that parent is an obligor; 

(h) Whether either parent or any member of the household of either 

parent previously has been convicted of or pleaded guilty to any 

criminal offense involving any act that resulted in a child being an 

abused child or a neglected child; * * * [involving any] * * * sexually 

oriented offense involving a victim who at the time of the commission of 

the offense was a member of the family or household that is the subject 

of the current proceeding; * * * any offense involving a victim who at the 

time of the commission of the offense was a member of the family or 

household that is the subject of the current proceeding and caused 

physical harm to the victim in the commission of the offense; and 

whether there is reason to believe that either parent has acted in a 

manner resulting in a child being an abused child or a neglected child; 

(i) 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; 

(j) Whether either parent has established a residence, or is planning to 

establish a residence, outside this state. 
-9-

R.C. 3109.04 (F)(1)(a)-(j). When allocating parental rights and responsibilities, courts 

are also instructed to “not give preference to a parent because of that parent’s 

financial status or condition.” R.C. 3109.04(F)(3). A trial court is given broad 

discretion to do what is equitable based on the facts and circumstances of each case 

and in its determination of parental custody rights. Booth v. Booth, 44 Ohio St.3d 

142, 144, 541 N.E.2d 1028 (1989). 

{¶11} The Ohio Supreme Court considers custody determinations critical to 

the life of the child, due to the far greater influence a custodial parent has over the life 

of the child. Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 

546, ¶36. For this reason, the legislature has designed the provisions guiding 

custody determinations and modifications to ensure the greatest measure of stability 

practicable under the circumstances. Id. at ¶34-36, also In re Brayden James, 113 

Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶28. “The clear intent of [R.C. 

3109.04(E)(1)(a)] is to spare children from a constant tug of war between their 

parents who would file a motion for change of custody each time the parent out of 

custody thought he or she could provide the child a ‘better’ environment.” Fisher at 

¶34. 

{¶12} On review, a trial court’s custody determination will not be disturbed 

unless it involves an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 

550 N.E.2d 178 (1990). An abuse of discretion connotes that the trial court’s 

decision was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1982). Where a trial court does not abuse its 
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discretion, its decision will not be reversed if it is supported by competent and 

credible evidence. Bechtol, supra, at 23. The Ohio Supreme Court states: 

[I]t is inappropriate in most cases for a court of appeals to 

independently weigh evidence[.] * * * The discretion which a trial court 

enjoys in custody matters should be accorded the utmost respect, given 

the nature of the proceeding and the impact the court’s determination 

will have on the lives of the parties concerned. The knowledge a trial 

court gains through observing the witnesses and the parties in a 

custody proceeding cannot be conveyed to a reviewing court by a 

printed record. In this regard, the reviewing court in such proceedings 

should be guided by the presumption that the trial court’s findings were 

indeed correct. (Internal citation omitted.) 

Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). A reviewing court is not 

entitled to substitute its judgment for the trial court’s broad discretion. Id. Even if the 

reviewing court might, given the same facts, reach a different conclusion, the trial 

court’s perception of the testimony takes precedence, within statutory limitations. 

{¶13} As noted, no prior order regarding custody existed in this instance. 

Because the trial court was not modifying a custody order, and was instead making 

an initial determination, no threshold finding concerning a change in circumstances 

was necessary. Father’s decision to seek custody was sufficient to invoke the trial 

court’s jurisdiction in the matter. The magistrate listed the factors the court is 

required to consider pursuant to R.C. 3109.04(F)(1)(a)-(j). According to the 
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magistrate, in addition to the concerns of the parents as expressed during the 

hearing, the court also considered: M.’s interactions with both parties; M.’s 

adjustment to home, school and the community; the mental and physical health of all 

involved; the parent most likely to comply with the court-ordered parenting time 

schedule; support payments; previous convictions for abuse or neglect or sexual 

misconduct; and whether a parent was establishing a residence out of state. The 

court did not interview M. for input into the decision due to the child’s young age. 

Violation of a shared parenting order was not an issue before the court. According to 

the decision, the court found that M. interacted well with both parents and that they 

were equally capable of parenting M, but the court was concerned about M.’s ability 

to interact well with “other individuals who may significantly affect the child’s best 

interests.” (12/21/11 Mag. Decision.) 

{¶14} The court noted that M. had been exclusively raised in Jefferson County 

and had adjusted to those surroundings. M. had a robust support network on both 

sides of the family within the county. Although M. had some difficulty with reading, 

Mother and the paternal grandmother were able to cooperate with the kindergarten 

teacher and there had been significant improvement. All individuals concerned were 

in reasonably good health according to the court; both parents appeared willing to 

comply with court-ordered parenting time schedules; Father was current on support 

payments; neither parent and none of the individuals in either parent’s household had 

been convicted of abuse, neglect or sexual misconduct, but the court did note that 
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Mother had a theft conviction. The final factor the court considered was Mother’s 

intention to establish a residence outside the state. 

{¶15} The trial court adopted and incorporated the magistrate’s decision in its 

entirety, overruled Mother’s objections, and named Father the custodial and 

residential parent. The trial court awarded long distance visitation and attached a 

schedule allocating holiday time between the parents. As discussed, by law both 

parents had equal rights to custody of M. and there was no existing presumption in 

favor of either parent. The record reflects that the court applied the required factors. 

Nothing in the record reflects a misapplication of the statutory requirements or that 

the trial court gave undue weight to any individual factor. Under these 

circumstances, bearing in mind that “knowledge a trial court gains through observing 

the witnesses and the parties in a custody proceeding cannot be conveyed to a 

reviewing court by a printed record,” we must defer to the juvenile court’s decision. 

Miller, supra, at 74. Mother’s first assignment of error is overruled. Mother’s second 

assignment of error is without merit because there is no requirement or even a 

mechanism for a court to issue a conditional custody order and to do so would 

expressly disregard the clear policy preference for finality and stability in custody 

determinations. Mother’s second assignment of error is likewise overruled. 

Conclusion

{¶16} The juvenile court identified and applied the proper statutory law when 

making an initial custody determination between unmarried parents. The record 

contained substantial competent, credible, evidence supporting the juvenile court’s 
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decision. The juvenile court was best placed to observe the parties and weigh 

testimony. The judgment of the juvenile court is affirmed. 

Donofrio, J., concurs. 

Vukovich, J., concurs.