The Shared Parenting Paradox

I would like to discuss and provide some insight into a topic that a growing number of people are dealing with, this of course being Shared Parenting Plans. It’s no secret a growing number of Americans are getting divorced, and when children are involved this typically means a Shared Parenting Plan, or “SPP.” But in particular, I want to discuss how and when they can be modified or terminated, as for many people changing circumstances in their lives means their previous SPP simply will not work. I will outline the relevant Ohio statutes that apply to SPPs, and how they’ve been interpreted by the Ohio Appellate Courts.

First, I would like to discuss when and how a SPP can be modified. Ohio Revised Code 3109.04 allows for the modification of a SPP by a trial court. The court must find “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.” This is critical, as will be discussed later. The statute also states that the facts that dictate a change in circumstances must have been unknown at the time of the divorce decree and formulation of the SPP. Therefore, the changes in circumstances must have been unforeseen at the time of the decree. If the facts used as a basis for the modification were at all known, or considered, at the time of the decree, they therefore cannot be relied upon to modify the SPP. But further, to achieve a modification the proposed modification must be in the best interest of the child. The trial court is to consider “all relevant factors” of the child’s situation with these factors outlined by statute in R.C. 3109.04 to reach its conclusion of “best interest.” This then establishes a relatively difficult standard for the party wishing to modify a SPP. However, if a change of circumstances does in fact occur and a modification would serve the best interest of a child, a modification of the SPP would indeed be warranted.

Next, the standard to terminate a SPP are different than the standard to modify. Such was the issue of In re K.R., A Minor Child (2011) Ohio 1454; 2011 Ohio App. LEXIS 1267. This case, decided in the Eleventh District Court of Appeals (which includes Portage County) hinged on the mother of the child arguing the termination of her and her husband’s SPP was unlawful because the trial court did not find a change in circumstances had occurred. However, the Court outlined that finding a change in circumstances to terminate a SPP is not necessary, as the language of R.C. 3109.04 states “[t]he court may terminate a prior final shared parenting decree that includes a shared parenting plan upon the request of one of both of the parents or whenever it determines that shared parenting is not in the best interest of the child” (emphasis from the opinion). The Court then follows precedent from Williamson v. Williamson (2003), a 2nd District Court of Appeals case that distinguished a modification from a termination of a SPP. That is, precedent dictated a distinction between modifying and terminating a SPP. Thus, the standard to terminate a SPP is seemingly less difficult to reach than the standard for a modification, as a termination need only meet the “best interest” test.

Taking all of this, the courts have distinguished a modification from a termination of a SPP. A modification requires a change in circumstances not contemplated at the time of the decree while a termination may be made at the request of one of the parents and need only meet the best interest of the child standard. So, if you are considering modifying or terminating your SPP, these respective standards are things you will certainly want to keep in mind.