Relocation of the Custodial Parent - What is the Trial Court Supposed to Determine?

Acus v. Acus
2010-Ohio-856
Twelfth District Court of Appeals
Madison County
-Custody: Relocation of Custodial Parent

Appellant-Mother appeals from the decision of the Madison County DR Court denying her request to relocate to Cleveland with her daughter following her divorce from Appellee-Father. Mother, as residential parent argues that pursuant to R.C. 3109.051, the DR Court erred in its decision preventing her from relocating.

The Appellate Court, after reviewing R.C. 3109.051 reversed and remanded finding that the DR Court did not comply with the required statute. In short, the statute gives the DR Court the authority to determine, at a hearing, whether it is in the best interest of the child to revise the parenting time schedule for the child. The statute does not give the DR Court the authority to prevent the residential parent from relocating with the child.

From the Opinion:

{¶12} R.C. 3109.051(G)(1), which deals with the requirements of a residential parent intending to relocate, states, in pertinent part:
{¶13} "If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. * * * Upon receipt of the notice, the court, on its own motion or the motion of the parent who is not the residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule for the child." (Emphasis added.)

{¶14} In turn, while the express terms of R.C. 3109.051(G)(1) permit the trial court to schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child," the statute "does not give the trial court the authority to prevent the residential parent from relocating with the child."[citations omitted].

{¶15} In this case, there were no prior agreements preventing Mother from relocating, nor were there any provisions in the dispositional order regarding her ability to relocate.2 See In re T.M. at ¶13, citing Williams v. Williams, Trumball App. No. 2002- T-0101, 2004-Ohio-3992; Kassavei, 2001 WL 589392 at *2; see, also, Zimmer v. Zimmer, Franklin App. No. 00AP-383, 2001-Ohio-4226, 2001 WL 185356, at *2-*4. As a result, and under the facts of this case, the trial court did not have the authority to prevent Mother from relocating to Cleveland with her minor daughter. Instead, pursuant to R.C. 3109.051(G)(1), the court could merely schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child."3 See In re Noble, 2001 WL 314889 at *2; Kassavei, 2001 WL 589392 at *2; Spain, 1995 WL 380067 at *2. Therefore, because the trial court's decision preventing Mother from relocating with her daughter outside of the "Madison County area" was contrary to law, appellant's assignments of error are sustained and this matter is remanded for further proceedings. Kassavei, 2001 WL 589392 at *2.