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Braatz v. Braatz
Citations: 85 Ohio St. 3d 40; 706 N.E.2d 1218Docket: No. 97-2566
Court: Ohio Supreme Court; March 23, 1999; Ohio; State Supreme Court
The certified questions for consideration are whether a moving party must show a change of circumstances for a trial court to modify a prior visitation judgment and whether a trial court must provide findings of fact and conclusions of law upon request in such modification proceedings. R.C. 3109.04 stipulates that a court cannot modify a prior decree regarding parental rights and responsibilities without determining that changed circumstances have arisen since the prior decree and that modification serves the child's best interest. The statute lists factors to consider in assessing the child's best interest. R.C. 3109.051 mandates that in cases without an existing shared parenting decree, the court must consider mediation reports and issue visitation orders that allow non-residential parents to visit the child, unless contrary to the child's best interest, while including findings of fact and conclusions of law. The court references the 1986 case Appleby v. Appleby, which established that R.C. 3109.05 governs visitation rights, not R.C. 3109.04, despite subsequent amendments to both statutes since then. Amendments to R.C. 3109.04 have included provisions about custodial access denial and changes in terminology related to parental rights. In 1993, Ohio legislation amended R.C. 3109.04(D)(1) to include "parents" in plural terms, while in 1994, changes were made to R.C. 3109.04(E) regarding shared parenting plan modifications. The statute continues to address custody rights, now termed "parental rights and responsibilities," and delineates procedures for trial courts in child care allocation but does not address visitation rights. Visitation rights are governed by R.C. 3109.051, established in 1990, which specifically details parental visitation rights. Subsequent amendments to R.C. 3109.051 emphasized ensuring frequent contact between both parents unless contrary to the child's best interests. The distinction between custody and visitation is clarified: custody pertains to the party with ultimate control over a child, while visitation refers to the rights of a noncustodial party to visit the child. Even if a noncustodial parent temporarily gains physical control during visits, this does not equate to custody, which remains with the custodial party. Thus, while R.C. 3109.04 deals with parental rights, it does not cover visitation, which is strictly governed by R.C. 3109.051. The current legal framework follows the rationale established in Appleby, confirming that modifications to visitation rights are governed by R.C. 3109.051, distinct from the custody modification rules in R.C. 3109.04. Appellee is not required to demonstrate a change in circumstances to modify visitation rights. Under R.C. 3109.051(D), the trial court must consider fifteen specified factors to determine visitation in the child's best interest. The trial court reinstated the original visitation schedule without explaining its rationale, stating that appellee's objections were meritless while finding appellant's objections valid. This implies the court accepted appellant's argument that appellee did not prove that changing the visitation schedule served the child's best interest. The record lacks evidence that the trial court considered the statutory factors when reviewing the magistrate's recommendation. Best practices, as outlined in R.C. 3109.051(F)(1), require the trial court to issue findings of fact and conclusions of law upon request. The court of appeals' decision is affirmed, and upon remand, the trial court must provide these findings while considering the statutory factors. Alternatively, the trial court may vacate its previous order and hold a new hearing on appellee's motion for a change in visitation. Additionally, one factor to consider is whether a parent is likely to honor court-approved visitation rights, per R.C. 3109.04(F)(1)(f). R.C. 3109.051(F)(1) mandates written findings if visitation is denied upon request.