H. B. No. 61 As Introduced

As Introduced

127th General Assembly

Regular Session

2007-2008

H. B. No. 61

Representative Ujvagi

Cosponsors: Representatives Dodd, Brown, McGregor, J., Skindell, Stebelton, Strahorn, Yuko, Koziura

A BILL

To amend sections 3109.04 and 3109.041 of the Revised 1
Code to prohibit a juvenile court from making 2
custody determinations or modifications in a case 3
in which one of the parents is called to active 4
military service with any reserve component of the 5
United States armed forces or Ohio militia. 6

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 3109.04 and 3109.041 of the Revised 7
Code be amended to read as follows: 8

       Sec. 3109.04. (A) In any divorce, legal separation, or 9
annulment proceeding and in any proceeding pertaining to the 10
allocation of parental rights and responsibilities for the care of 11
a child, upon hearing the testimony of either or both parents and 12
considering any mediation report filed pursuant to section 13
3109.052 of the Revised Code and in accordance with sections 14
3127.01 to 3127.53 of the Revised Code, the court shall allocate 15
the parental rights and responsibilities for the care of the minor 16
children of the marriage. Subject to division (D)(2) of this 17
section, the court may allocate the parental rights and 18
responsibilities for the care of the children in either of the 19
following ways: 20

       (1) If neither parent files a pleading or motion in 21
accordance with division (G) of this section, if at least one 22
parent files a pleading or motion under that division but no 23
parent who filed a pleading or motion under that division also 24
files a plan for shared parenting, or if at least one parent files 25
both a pleading or motion and a shared parenting plan under that 26
division but no plan for shared parenting is in the best interest 27
of the children, the court, in a manner consistent with the best 28
interest of the children, shall allocate the parental rights and 29
responsibilities for the care of the children primarily to one of 30
the parents, designate that parent as the residential parent and 31
the legal custodian of the child, and divide between the parents 32
the other rights and responsibilities for the care of the 33
children, including, but not limited to, the responsibility to 34
provide support for the children and the right of the parent who 35
is not the residential parent to have continuing contact with the 36
children. 37

       (2) If at least one parent files a pleading or motion in 38
accordance with division (G) of this section and a plan for shared 39
parenting pursuant to that division and if a plan for shared 40
parenting is in the best interest of the children and is approved 41
by the court in accordance with division (D)(1) of this section, 42
the court may allocate the parental rights and responsibilities 43
for the care of the children to both parents and issue a shared 44
parenting order requiring the parents to share all or some of the 45
aspects of the physical and legal care of the children in 46
accordance with the approved plan for shared parenting. If the 47
court issues a shared parenting order under this division and it 48
is necessary for the purpose of receiving public assistance, the 49
court shall designate which one of the parents' residences is to 50
serve as the child's home. The child support obligations of the 51
parents under a shared parenting order issued under this division 52
shall be determined in accordance with Chapters 3119., 3121., 53
3123., and 3125. of the Revised Code. 54

       (B)(1) When making the allocation of the parental rights and 55
responsibilities for the care of the children under this section 56
in an original proceeding or in any proceeding for modification of 57
a prior order of the court making the allocation, the court shall 58
take into account that which would be in the best interest of the 59
children. In determining the child's best interest for purposes of 60
making its allocation of the parental rights and responsibilities 61
for the care of the child and for purposes of resolving any issues 62
related to the making of that allocation, the court, in its 63
discretion, may and, upon the request of either party, shall 64
interview in chambers any or all of the involved children 65
regarding their wishes and concerns with respect to the 66
allocation. 67

       (2) If the court interviews any child pursuant to division 68
(B)(1) of this section, all of the following apply: 69

       (a) The court, in its discretion, may and, upon the motion of 70
either parent, shall appoint a guardian ad litem for the child. 71

       (b) The court first shall determine the reasoning ability of 72
the child. If the court determines that the child does not have 73
sufficient reasoning ability to express the child's wishes and 74
concern with respect to the allocation of parental rights and 75
responsibilities for the care of the child, it shall not determine 76
the child's wishes and concerns with respect to the allocation. If 77
the court determines that the child has sufficient reasoning 78
ability to express the child's wishes or concerns with respect to 79
the allocation, it then shall determine whether, because of 80
special circumstances, it would not be in the best interest of the 81
child to determine the child's wishes and concerns with respect to 82
the allocation. If the court determines that, because of special 83
circumstances, it would not be in the best interest of the child 84
to determine the child's wishes and concerns with respect to the 85
allocation, it shall not determine the child's wishes and concerns 86
with respect to the allocation and shall enter its written 87
findings of fact and opinion in the journal. If the court 88
determines that it would be in the best interests of the child to 89
determine the child's wishes and concerns with respect to the 90
allocation, it shall proceed to make that determination. 91

       (c) The interview shall be conducted in chambers, and no 92
person other than the child, the child's attorney, the judge, any 93
necessary court personnel, and, in the judge's discretion, the 94
attorney of each parent shall be permitted to be present in the 95
chambers during the interview. 96

       (3) No person shall obtain or attempt to obtain from a child 97
a written or recorded statement or affidavit setting forth the 98
child's wishes and concerns regarding the allocation of parental 99
rights and responsibilities concerning the child. No court, in 100
determining the child's best interest for purposes of making its 101
allocation of the parental rights and responsibilities for the 102
care of the child or for purposes of resolving any issues related 103
to the making of that allocation, shall accept or consider a 104
written or recorded statement or affidavit that purports to set 105
forth the child's wishes and concerns regarding those matters. 106

       (C) Prior to trial, the court may cause an investigation to 107
be made as to the character, family relations, past conduct, 108
earning ability, and financial worth of each parent and may order 109
the parents and their minor children to submit to medical, 110
psychological, and psychiatric examinations. The report of the 111
investigation and examinations shall be made available to either 112
parent or the parent's counsel of record not less than five days 113
before trial, upon written request. The report shall be signed by 114
the investigator, and the investigator shall be subject to 115
cross-examination by either parent concerning the contents of the 116
report. The court may tax as costs all or any part of the expenses 117
for each investigation. 118

       If the court determines that either parent previously has 119
been convicted of or pleaded guilty to any criminal offense 120
involving any act that resulted in a child being a neglected 121
child, that either parent previously has been determined to be the 122
perpetrator of the neglectful act that is the basis of an 123
adjudication that a child is a neglected child, or that there is 124
reason to believe that either parent has acted in a manner 125
resulting in a child being a neglected child, the court shall 126
consider that fact against naming that parent the residential 127
parent and against granting a shared parenting decree. When the 128
court allocates parental rights and responsibilities for the care 129
of children or determines whether to grant shared parenting in any 130
proceeding, it shall consider whether either parent has been 131
convicted of or pleaded guilty to a violation of section 2919.25 132
of the Revised Code involving a victim who at the time of the 133
commission of the offense was a member of the family or household 134
that is the subject of the proceeding, has been convicted of or 135
pleaded guilty to any other offense involving a victim who at the 136
time of the commission of the offense was a member of the family 137
or household that is the subject of the proceeding and caused 138
physical harm to the victim in the commission of the offense, or 139
has been determined to be the perpetrator of the abusive act that 140
is the basis of an adjudication that a child is an abused child. 141
If the court determines that either parent has been convicted of 142
or pleaded guilty to a violation of section 2919.25 of the Revised 143
Code involving a victim who at the time of the commission of the 144
offense was a member of the family or household that is the 145
subject of the proceeding, has been convicted of or pleaded guilty 146
to any other offense involving a victim who at the time of the 147
commission of the offense was a member of the family or household 148
that is the subject of the proceeding and caused physical harm to 149
the victim in the commission of the offense, or has been 150
determined to be the perpetrator of the abusive act that is the 151
basis of an adjudication that a child is an abused child, it may 152
designate that parent as the residential parent and may issue a 153
shared parenting decree or order only if it determines that it is 154
in the best interest of the child to name that parent the 155
residential parent or to issue a shared parenting decree or order 156
and it makes specific written findings of fact to support its 157
determination. 158

       (D)(1)(a) Upon the filing of a pleading or motion by either 159
parent or both parents, in accordance with division (G) of this 160
section, requesting shared parenting and the filing of a shared 161
parenting plan in accordance with that division, the court shall 162
comply with division (D)(1)(a)(i), (ii), or (iii) of this section, 163
whichever is applicable: 164

       (i) If both parents jointly make the request in their 165
pleadings or jointly file the motion and also jointly file the 166
plan, the court shall review the parents' plan to determine if it 167
is in the best interest of the children. If the court determines 168
that the plan is in the best interest of the children, the court 169
shall approve it. If the court determines that the plan or any 170
part of the plan is not in the best interest of the children, the 171
court shall require the parents to make appropriate changes to the 172
plan to meet the court's objections to it. If changes to the plan 173
are made to meet the court's objections, and if the new plan is in 174
the best interest of the children, the court shall approve the 175
plan. If changes to the plan are not made to meet the court's 176
objections, or if the parents attempt to make changes to the plan 177
to meet the court's objections, but the court determines that the 178
new plan or any part of the new plan still is not in the best 179
interest of the children, the court may reject the portion of the 180
parents' pleadings or deny their motion requesting shared 181
parenting of the children and proceed as if the request in the 182
pleadings or the motion had not been made. The court shall not 183
approve a plan under this division unless it determines that the 184
plan is in the best interest of the children. 185

       (ii) If each parent makes a request in the parent's pleadings 186
or files a motion and each also files a separate plan, the court 187
shall review each plan filed to determine if either is in the best 188
interest of the children. If the court determines that one of the 189
filed plans is in the best interest of the children, the court may 190
approve the plan. If the court determines that neither filed plan 191
is in the best interest of the children, the court may order each 192
parent to submit appropriate changes to the parent's plan or both 193
of the filed plans to meet the court's objections, or may select 194
one of the filed plans and order each parent to submit appropriate 195
changes to the selected plan to meet the court's objections. If 196
changes to the plan or plans are submitted to meet the court's 197
objections, and if any of the filed plans with the changes is in 198
the best interest of the children, the court may approve the plan 199
with the changes. If changes to the plan or plans are not 200
submitted to meet the court's objections, or if the parents submit 201
changes to the plan or plans to meet the court's objections but 202
the court determines that none of the filed plans with the 203
submitted changes is in the best interest of the children, the 204
court may reject the portion of the parents' pleadings or deny 205
their motions requesting shared parenting of the children and 206
proceed as if the requests in the pleadings or the motions had not 207
been made. If the court approves a plan under this division, 208
either as originally filed or with submitted changes, or if the 209
court rejects the portion of the parents' pleadings or denies 210
their motions requesting shared parenting under this division and 211
proceeds as if the requests in the pleadings or the motions had 212
not been made, the court shall enter in the record of the case 213
findings of fact and conclusions of law as to the reasons for the 214
approval or the rejection or denial. Division (D)(1)(b) of this 215
section applies in relation to the approval or disapproval of a 216
plan under this division. 217

       (iii) If each parent makes a request in the parent's 218
pleadings or files a motion but only one parent files a plan, or 219
if only one parent makes a request in the parent's pleadings or 220
files a motion and also files a plan, the court in the best 221
interest of the children may order the other parent to file a plan 222
for shared parenting in accordance with division (G) of this 223
section. The court shall review each plan filed to determine if 224
any plan is in the best interest of the children. If the court 225
determines that one of the filed plans is in the best interest of 226
the children, the court may approve the plan. If the court 227
determines that no filed plan is in the best interest of the 228
children, the court may order each parent to submit appropriate 229
changes to the parent's plan or both of the filed plans to meet 230
the court's objections or may select one filed plan and order each 231
parent to submit appropriate changes to the selected plan to meet 232
the court's objections. If changes to the plan or plans are 233
submitted to meet the court's objections, and if any of the filed 234
plans with the changes is in the best interest of the children, 235
the court may approve the plan with the changes. If changes to the 236
plan or plans are not submitted to meet the court's objections, or 237
if the parents submit changes to the plan or plans to meet the 238
court's objections but the court determines that none of the filed 239
plans with the submitted changes is in the best interest of the 240
children, the court may reject the portion of the parents' 241
pleadings or deny the parents' motion or reject the portion of the 242
parents' pleadings or deny their motions requesting shared 243
parenting of the children and proceed as if the request or 244
requests or the motion or motions had not been made. If the court 245
approves a plan under this division, either as originally filed or 246
with submitted changes, or if the court rejects the portion of the 247
pleadings or denies the motion or motions requesting shared 248
parenting under this division and proceeds as if the request or 249
requests or the motion or motions had not been made, the court 250
shall enter in the record of the case findings of fact and 251
conclusions of law as to the reasons for the approval or the 252
rejection or denial. Division (D)(1)(b) of this section applies in 253
relation to the approval or disapproval of a plan under this 254
division. 255

       (b) The approval of a plan under division (D)(1)(a)(ii) or 256
(iii) of this section is discretionary with the court. The court 257
shall not approve more than one plan under either division and 258
shall not approve a plan under either division unless it 259
determines that the plan is in the best interest of the children. 260
If the court, under either division, does not determine that any 261
filed plan or any filed plan with submitted changes is in the best 262
interest of the children, the court shall not approve any plan. 263

       (c) Whenever possible, the court shall require that a shared 264
parenting plan approved under division (D)(1)(a)(i), (ii), or 265
(iii) of this section ensure the opportunity for both parents to 266
have frequent and continuing contact with the child, unless 267
frequent and continuing contact with any parent would not be in 268
the best interest of the child. 269

       (d) If a court approves a shared parenting plan under 270
division (D)(1)(a)(i), (ii), or (iii) of this section, the 271
approved plan shall be incorporated into a final shared parenting 272
decree granting the parents the shared parenting of the children. 273
Any final shared parenting decree shall be issued at the same time 274
as and shall be appended to the final decree of dissolution, 275
divorce, annulment, or legal separation arising out of the action 276
out of which the question of the allocation of parental rights and 277
responsibilities for the care of the children arose. 278

       No provisional shared parenting decree shall be issued in 279
relation to any shared parenting plan approved under division 280
(D)(1)(a)(i), (ii), or (iii) of this section. A final shared 281
parenting decree issued under this division has immediate effect 282
as a final decree on the date of its issuance, subject to 283
modification or termination as authorized by this section. 284

       (2) If the court finds, with respect to any child under 285
eighteen years of age, that it is in the best interest of the 286
child for neither parent to be designated the residential parent 287
and legal custodian of the child, it may commit the child to a 288
relative of the child or certify a copy of its findings, together 289
with as much of the record and the further information, in 290
narrative form or otherwise, that it considers necessary or as the 291
juvenile court requests, to the juvenile court for further 292
proceedings, and, upon the certification, the juvenile court has 293
exclusive jurisdiction. 294

       (E)(1)(a) The court shall not modify a prior decree 295
allocating parental rights and responsibilities for the care of 296
children unless it finds, based on facts that have arisen since 297
the prior decree or that were unknown to the court at the time of 298
the prior decree, that a change has occurred in the circumstances 299
of the child, the child's residential parent, or either of the 300
parents subject to a shared parenting decree, and that the 301
modification is necessary to serve the best interest of the child. 302
In applying these standards, the court shall retain the 303
residential parent designated by the prior decree or the prior 304
shared parenting decree, unless a modification is in the best 305
interest of the child and one of the following applies: 306

       (i) The residential parent agrees to a change in the 307
residential parent or both parents under a shared parenting decree 308
agree to a change in the designation of residential parent. 309

       (ii) The child, with the consent of the residential parent or 310
of both parents under a shared parenting decree, has been 311
integrated into the family of the person seeking to become the 312
residential parent. 313

       (iii) The harm likely to be caused by a change of environment 314
is outweighed by the advantages of the change of environment to 315
the child. 316

       (b) One or both of the parents under a prior decree 317
allocating parental rights and responsibilities for the care of 318
children that is not a shared parenting decree may file a motion 319
requesting that the prior decree be modified to give both parents 320
shared rights and responsibilities for the care of the children. 321
The motion shall include both a request for modification of the 322
prior decree and a request for a shared parenting order that 323
complies with division (G) of this section. Upon the filing of the 324
motion, if the court determines that a modification of the prior 325
decree is authorized under division (E)(1)(a) of this section, the 326
court may modify the prior decree to grant a shared parenting 327
order, provided that the court shall not modify the prior decree 328
to grant a shared parenting order unless the court complies with 329
divisions (A) and (D)(1) of this section and, in accordance with 330
those divisions, approves the submitted shared parenting plan and 331
determines that shared parenting would be in the best interest of 332
the children. 333

       (2) In addition to a modification authorized under division 334
(E)(1) of this section: 335

       (a) Both parents under a shared parenting decree jointly may 336
modify the terms of the plan for shared parenting approved by the 337
court and incorporated by it into the shared parenting decree. 338
Modifications under this division may be made at any time. The 339
modifications to the plan shall be filed jointly by both parents 340
with the court, and the court shall include them in the plan, 341
unless they are not in the best interest of the children. If the 342
modifications are not in the best interests of the children, the 343
court, in its discretion, may reject the modifications or make 344
modifications to the proposed modifications or the plan that are 345
in the best interest of the children. Modifications jointly 346
submitted by both parents under a shared parenting decree shall be 347
effective, either as originally filed or as modified by the court, 348
upon their inclusion by the court in the plan. Modifications to 349
the plan made by the court shall be effective upon their inclusion 350
by the court in the plan. 351

       (b) The court may modify the terms of the plan for shared 352
parenting approved by the court and incorporated by it into the 353
shared parenting decree upon its own motion at any time if the 354
court determines that the modifications are in the best interest 355
of the children or upon the request of one or both of the parents 356
under the decree. Modifications under this division may be made at 357
any time. The court shall not make any modification to the plan 358
under this division, unless the modification is in the best 359
interest of the children. 360

       (c) The court may terminate a prior final shared parenting 361
decree that includes a shared parenting plan approved under 362
division (D)(1)(a)(i) of this section upon the request of one or 363
both of the parents or whenever it determines that shared 364
parenting is not in the best interest of the children. The court 365
may terminate a prior final shared parenting decree that includes 366
a shared parenting plan approved under division (D)(1)(a)(ii) or 367
(iii) of this section if it determines, upon its own motion or 368
upon the request of one or both parents, that shared parenting is 369
not in the best interest of the children. If modification of the 370
terms of the plan for shared parenting approved by the court and 371
incorporated by it into the final shared parenting decree is 372
attempted under division (E)(2)(a) of this section and the court 373
rejects the modifications, it may terminate the final shared 374
parenting decree if it determines that shared parenting is not in 375
the best interest of the children. 376

       (d) Upon the termination of a prior final shared parenting 377
decree under division (E)(2)(c) of this section, the court shall 378
proceed and issue a modified decree for the allocation of parental 379
rights and responsibilities for the care of the children under the 380
standards applicable under divisions (A), (B), and (C) of this 381
section as if no decree for shared parenting had been granted and 382
as if no request for shared parenting ever had been made. 383

       (F)(1) In determining the best interest of a child pursuant 384
to this section, whether on an original decree allocating parental 385
rights and responsibilities for the care of children or a 386
modification of a decree allocating those rights and 387
responsibilities, the court shall consider all relevant factors, 388
including, but not limited to: 389

       (a) The wishes of the child's parents regarding the child's 390
care; 391

       (b) If the court has interviewed the child in chambers 392
pursuant to division (B) of this section regarding the child's 393
wishes and concerns as to the allocation of parental rights and 394
responsibilities concerning the child, the wishes and concerns of 395
the child, as expressed to the court; 396

       (c) The child's interaction and interrelationship with the 397
child's parents, siblings, and any other person who may 398
significantly affect the child's best interest; 399

       (d) The child's adjustment to the child's home, school, and 400
community; 401

       (e) The mental and physical health of all persons involved in 402
the situation; 403

       (f) The parent more likely to honor and facilitate 404
court-approved parenting time rights or visitation and 405
companionship rights; 406

       (g) Whether either parent has failed to make all child 407
support payments, including all arrearages, that are required of 408
that parent pursuant to a child support order under which that 409
parent is an obligor; 410

       (h) Whether either parent previously has been convicted of or 411
pleaded guilty to any criminal offense involving any act that 412
resulted in a child being an abused child or a neglected child; 413
whether either parent, in a case in which a child has been 414
adjudicated an abused child or a neglected child, previously has 415
been determined to be the perpetrator of the abusive or neglectful 416
act that is the basis of an adjudication; whether either parent 417
previously has been convicted of or pleaded guilty to a violation 418
of section 2919.25 of the Revised Code involving a victim who at 419
the time of the commission of the offense was a member of the 420
family or household that is the subject of the current proceeding; 421
whether either parent previously has been convicted of or pleaded 422
guilty to any offense involving a victim who at the time of the 423
commission of the offense was a member of the family or household 424
that is the subject of the current proceeding and caused physical 425
harm to the victim in the commission of the offense; and whether 426
there is reason to believe that either parent has acted in a 427
manner resulting in a child being an abused child or a neglected 428
child; 429

       (i) Whether the residential parent or one of the parents 430
subject to a shared parenting decree has continuously and 431
willfully denied the other parent's right to parenting time in 432
accordance with an order of the court; 433

       (j) Whether either parent has established a residence, or is 434
planning to establish a residence, outside this state. 435

       (2) In determining whether shared parenting is in the best 436
interest of the children, the court shall consider all relevant 437
factors, including, but not limited to, the factors enumerated in 438
division (F)(1) of this section, the factors enumerated in section 439
3119.23 of the Revised Code, and all of the following factors: 440

       (a) The ability of the parents to cooperate and make 441
decisions jointly, with respect to the children; 442

       (b) The ability of each parent to encourage the sharing of 443
love, affection, and contact between the child and the other 444
parent; 445

       (c) Any history of, or potential for, child abuse, spouse 446
abuse, other domestic violence, or parental kidnapping by either 447
parent; 448

       (d) The geographic proximity of the parents to each other, as 449
the proximity relates to the practical considerations of shared 450
parenting; 451

       (e) The recommendation of the guardian ad litem of the child, 452
if the child has a guardian ad litem. 453

       (3) When allocating parental rights and responsibilities for 454
the care of children, the court shall not give preference to a 455
parent because of that parent's financial status or condition. 456

       (G) Either parent or both parents of any children may file a 457
pleading or motion with the court requesting the court to grant 458
both parents shared parental rights and responsibilities for the 459
care of the children in a proceeding held pursuant to division (A) 460
of this section. If a pleading or motion requesting shared 461
parenting is filed, the parent or parents filing the pleading or 462
motion also shall file with the court a plan for the exercise of 463
shared parenting by both parents. If each parent files a pleading 464
or motion requesting shared parenting but only one parent files a 465
plan or if only one parent files a pleading or motion requesting 466
shared parenting and also files a plan, the other parent as 467
ordered by the court shall file with the court a plan for the 468
exercise of shared parenting by both parents. The plan for shared 469
parenting shall be filed with the petition for dissolution of 470
marriage, if the question of parental rights and responsibilities 471
for the care of the children arises out of an action for 472
dissolution of marriage, or, in other cases, at a time at least 473
thirty days prior to the hearing on the issue of the parental 474
rights and responsibilities for the care of the children. A plan 475
for shared parenting shall include provisions covering all factors 476
that are relevant to the care of the children, including, but not 477
limited to, provisions covering factors such as physical living 478
arrangements, child support obligations, provision for the 479
children's medical and dental care, school placement, and the 480
parent with which the children will be physically located during 481
legal holidays, school holidays, and other days of special 482
importance. 483

       (H) If an appeal is taken from a decision of a court that 484
grants or modifies a decree allocating parental rights and 485
responsibilities for the care of children, the court of appeals 486
shall give the case calendar priority and handle it expeditiously. 487

       (I)(1) The court shall stay any proceeding pertaining to the 488
allocation or modification of parental rights and responsibilities 489
pursuant to this section if a parent who is a subject of the 490
allocation or modification proceeding is called to active military 491
service in the uniformed services. The court shall stay any 492
proceeding pertaining to the allocation or modification of 493
parental rights and responsibilities pursuant to this section 494
until receipt of written notice of the termination of the parent's 495
active military service provided pursuant to division (I)(2) of 496
this section. Nothing in this division shall prevent a court from 497
issuing an order temporarily allocating or modifying parental 498
rights and responsibilities prior to staying proceedings in 499
accordance with this division. 500

       (2) A parent who is called to active military service in the 501
uniformed services and is a subject of any proceeding pertaining 502
to the allocation or modification of parental rights and 503
responsibilities pursuant to this section shall provide written 504
notice of the date of termination of the parent's active military 505
service to the court not later than the last day of the month in 506
which the service ends. 507

       (3) The court shall not find active military service in the 508
uniformed services to constitute a change in circumstances 509
justifying modification of a prior decree pursuant to division (E) 510
of this section. 511

       (J) As used in this section~~, "abused~~: 512

       (1) "Abused child" has the same meaning as in section 513
2151.031 of the Revised Code~~, and "neglected~~. 514

       (2) "Active military service" means the performance of active 515
military duty by a member of the uniformed services for a period 516
of more than thirty days. 517

       (3) "Neglected child" has the same meaning as in section 518
2151.03 of the Revised Code. 519

       (4) "Uniformed services" means the Ohio organized militia 520
when engaged in full-time national guard duty or any reserve 521
component of the armed forces of the United States. 522

       ~~(J)~~(K) As used in the Revised Code, "shared parenting" means 523
that the parents share, in the manner set forth in the plan for 524
shared parenting that is approved by the court under division 525
(D)(1) and described in division ~~(K)~~(L)(6) of this section, all or 526
some of the aspects of physical and legal care of their children. 527

       ~~(K)~~(L) For purposes of the Revised Code: 528

       (1) A parent who is granted the care, custody, and control of 529
a child under an order that was issued pursuant to this section 530
prior to April 11, 1991, and that does not provide for shared 531
parenting has "custody of the child" and "care, custody, and 532
control of the child" under the order, and is the "residential 533
parent," the "residential parent and legal custodian," or the 534
"custodial parent" of the child under the order. 535

       (2) A parent who primarily is allocated the parental rights 536
and responsibilities for the care of a child and who is designated 537
as the residential parent and legal custodian of the child under 538
an order that is issued pursuant to this section on or after April 539
11, 1991, and that does not provide for shared parenting has 540
"custody of the child" and "care, custody, and control of the 541
child" under the order, and is the "residential parent," the 542
"residential parent and legal custodian," or the "custodial 543
parent" of the child under the order. 544

       (3) A parent who is not granted custody of a child under an 545
order that was issued pursuant to this section prior to April 11, 546
1991, and that does not provide for shared parenting is the 547
"parent who is not the residential parent," the "parent who is not 548
the residential parent and legal custodian," or the "noncustodial 549
parent" of the child under the order. 550

       (4) A parent who is not primarily allocated the parental 551
rights and responsibilities for the care of a child and who is not 552
designated as the residential parent and legal custodian of the 553
child under an order that is issued pursuant to this section on or 554
after April 11, 1991, and that does not provide for shared 555
parenting is the "parent who is not the residential parent," the 556
"parent who is not the residential parent and legal custodian," or 557
the "noncustodial parent" of the child under the order. 558

       (5) Unless the context clearly requires otherwise, if an 559
order is issued by a court pursuant to this section and the order 560
provides for shared parenting of a child, both parents have 561
"custody of the child" or "care, custody, and control of the 562
child" under the order, to the extent and in the manner specified 563
in the order. 564

       (6) Unless the context clearly requires otherwise and except 565
as otherwise provided in the order, if an order is issued by a 566
court pursuant to this section and the order provides for shared 567
parenting of a child, each parent, regardless of where the child 568
is physically located or with whom the child is residing at a 569
particular point in time, as specified in the order, is the 570
"residential parent," the "residential parent and legal 571
custodian," or the "custodial parent" of the child. 572

       (7) Unless the context clearly requires otherwise and except 573
as otherwise provided in the order, a designation in the order of 574
a parent as the residential parent for the purpose of determining 575
the school the child attends, as the custodial parent for purposes 576
of claiming the child as a dependent pursuant to section 152(e) of 577
the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C.A. 578
1, as amended, or as the residential parent for purposes of 579
receiving public assistance pursuant to division (A)(2) of this 580
section, does not affect the designation pursuant to division 581
~~(K)~~(L)(6) of this section of each parent as the "residential 582
parent," the "residential parent and legal custodian," or the 583
"custodial parent" of the child. 584

       Sec. 3109.041. (A) Parties to any custody decree issued 585
pursuant to section 3109.04 of the Revised Code prior to ~~the~~ 586
~~effective date of this amendment~~April 11, 1991, may file a motion 587
with the court that issued the decree requesting the issuance of a 588
shared parenting decree in accordance with division (G) of section 589
3109.04 of the Revised Code. Upon the filing of the motion, the 590
court shall determine whether to grant the parents shared rights 591
and responsibilities for the care of the children in accordance 592
with divisions (A), (D)(1), ~~and~~ (E)(1), and (I) of section 3109.04 593
of the Revised Code. 594

       (B) A custody decree issued pursuant to section 3109.04 of 595
the Revised Code prior to ~~the effective date of this amendment~~ 596
April 11, 1991, that granted joint care, custody, and control of 597
the children to the parents shall not be affected or invalidated 598
by, and shall not be construed as being affected or invalidated 599
by, the provisions of section 3109.04 of the Revised Code relative 600
to the granting of a shared parenting decree or a decree 601
allocating parental rights and responsibilities for the care of 602
children on and after ~~the effective date of this amendment~~April 603
11, 1991. The decree issued prior to ~~the effective date of this~~ 604
~~amendment~~April 11, 1991 shall remain in full force and effect, 605
subject to modification or termination pursuant to section 3109.04 606
of the Revised Code as that section exists on and after ~~the~~ 607
~~effective date of this amendment~~April 11, 1991. 608

       (C) As used in this section, "joint custody" and "joint care, 609
custody, and control" have the same meaning as "shared parenting." 610

       Section 2. That existing sections 3109.04 and 3109.041 of the 611
Revised Code are hereby repealed. 612

Section 1. That sections 3109.04 and 3109.041 of the Revised	7
Code be amended to read as follows:	8

Sec. 3109.04. (A) In any divorce, legal separation, or	9
annulment proceeding and in any proceeding pertaining to the	10
allocation of parental rights and responsibilities for the care of	11
a child, upon hearing the testimony of either or both parents and	12
considering any mediation report filed pursuant to section	13
3109.052 of the Revised Code and in accordance with sections	14
3127.01 to 3127.53 of the Revised Code, the court shall allocate	15
the parental rights and responsibilities for the care of the minor	16
children of the marriage. Subject to division (D)(2) of this	17
section, the court may allocate the parental rights and	18
responsibilities for the care of the children in either of the	19
following ways:	20

(1) If neither parent files a pleading or motion in	21
accordance with division (G) of this section, if at least one	22
parent files a pleading or motion under that division but no	23
parent who filed a pleading or motion under that division also	24
files a plan for shared parenting, or if at least one parent files	25
both a pleading or motion and a shared parenting plan under that	26
division but no plan for shared parenting is in the best interest	27
of the children, the court, in a manner consistent with the best	28
interest of the children, shall allocate the parental rights and	29
responsibilities for the care of the children primarily to one of	30
the parents, designate that parent as the residential parent and	31
the legal custodian of the child, and divide between the parents	32
the other rights and responsibilities for the care of the	33
children, including, but not limited to, the responsibility to	34
provide support for the children and the right of the parent who	35
is not the residential parent to have continuing contact with the	36
children.	37

(2) If at least one parent files a pleading or motion in	38
accordance with division (G) of this section and a plan for shared	39
parenting pursuant to that division and if a plan for shared	40
parenting is in the best interest of the children and is approved	41
by the court in accordance with division (D)(1) of this section,	42
the court may allocate the parental rights and responsibilities	43
for the care of the children to both parents and issue a shared	44
parenting order requiring the parents to share all or some of the	45
aspects of the physical and legal care of the children in	46
accordance with the approved plan for shared parenting. If the	47
court issues a shared parenting order under this division and it	48
is necessary for the purpose of receiving public assistance, the	49
court shall designate which one of the parents' residences is to	50
serve as the child's home. The child support obligations of the	51
parents under a shared parenting order issued under this division	52
shall be determined in accordance with Chapters 3119., 3121.,	53
3123., and 3125. of the Revised Code.	54

(B)(1) When making the allocation of the parental rights and	55
responsibilities for the care of the children under this section	56
in an original proceeding or in any proceeding for modification of	57
a prior order of the court making the allocation, the court shall	58
take into account that which would be in the best interest of the	59
children. In determining the child's best interest for purposes of	60
making its allocation of the parental rights and responsibilities	61
for the care of the child and for purposes of resolving any issues	62
related to the making of that allocation, the court, in its	63
discretion, may and, upon the request of either party, shall	64
interview in chambers any or all of the involved children	65
regarding their wishes and concerns with respect to the	66
allocation.	67

(2) If the court interviews any child pursuant to division	68
(B)(1) of this section, all of the following apply:	69

(a) The court, in its discretion, may and, upon the motion of	70
either parent, shall appoint a guardian ad litem for the child.	71

(b) The court first shall determine the reasoning ability of	72
the child. If the court determines that the child does not have	73
sufficient reasoning ability to express the child's wishes and	74
concern with respect to the allocation of parental rights and	75
responsibilities for the care of the child, it shall not determine	76
the child's wishes and concerns with respect to the allocation. If	77
the court determines that the child has sufficient reasoning	78
ability to express the child's wishes or concerns with respect to	79
the allocation, it then shall determine whether, because of	80
special circumstances, it would not be in the best interest of the	81
child to determine the child's wishes and concerns with respect to	82
the allocation. If the court determines that, because of special	83
circumstances, it would not be in the best interest of the child	84
to determine the child's wishes and concerns with respect to the	85
allocation, it shall not determine the child's wishes and concerns	86
with respect to the allocation and shall enter its written	87
findings of fact and opinion in the journal. If the court	88
determines that it would be in the best interests of the child to	89
determine the child's wishes and concerns with respect to the	90
allocation, it shall proceed to make that determination.	91

(c) The interview shall be conducted in chambers, and no	92
person other than the child, the child's attorney, the judge, any	93
necessary court personnel, and, in the judge's discretion, the	94
attorney of each parent shall be permitted to be present in the	95
chambers during the interview.	96

(3) No person shall obtain or attempt to obtain from a child	97
a written or recorded statement or affidavit setting forth the	98
child's wishes and concerns regarding the allocation of parental	99
rights and responsibilities concerning the child. No court, in	100
determining the child's best interest for purposes of making its	101
allocation of the parental rights and responsibilities for the	102
care of the child or for purposes of resolving any issues related	103
to the making of that allocation, shall accept or consider a	104
written or recorded statement or affidavit that purports to set	105
forth the child's wishes and concerns regarding those matters.	106

(C) Prior to trial, the court may cause an investigation to	107
be made as to the character, family relations, past conduct,	108
earning ability, and financial worth of each parent and may order	109
the parents and their minor children to submit to medical,	110
psychological, and psychiatric examinations. The report of the	111
investigation and examinations shall be made available to either	112
parent or the parent's counsel of record not less than five days	113
before trial, upon written request. The report shall be signed by	114
the investigator, and the investigator shall be subject to	115
cross-examination by either parent concerning the contents of the	116
report. The court may tax as costs all or any part of the expenses	117
for each investigation.	118

If the court determines that either parent previously has	119
been convicted of or pleaded guilty to any criminal offense	120
involving any act that resulted in a child being a neglected	121
child, that either parent previously has been determined to be the	122
perpetrator of the neglectful act that is the basis of an	123
adjudication that a child is a neglected child, or that there is	124
reason to believe that either parent has acted in a manner	125
resulting in a child being a neglected child, the court shall	126
consider that fact against naming that parent the residential	127
parent and against granting a shared parenting decree. When the	128
court allocates parental rights and responsibilities for the care	129
of children or determines whether to grant shared parenting in any	130
proceeding, it shall consider whether either parent has been	131
convicted of or pleaded guilty to a violation of section 2919.25	132
of the Revised Code involving a victim who at the time of the	133
commission of the offense was a member of the family or household	134
that is the subject of the proceeding, has been convicted of or	135
pleaded guilty to any other offense involving a victim who at the	136
time of the commission of the offense was a member of the family	137
or household that is the subject of the proceeding and caused	138
physical harm to the victim in the commission of the offense, or	139
has been determined to be the perpetrator of the abusive act that	140
is the basis of an adjudication that a child is an abused child.	141
If the court determines that either parent has been convicted of	142
or pleaded guilty to a violation of section 2919.25 of the Revised	143
Code involving a victim who at the time of the commission of the	144
offense was a member of the family or household that is the	145
subject of the proceeding, has been convicted of or pleaded guilty	146
to any other offense involving a victim who at the time of the	147
commission of the offense was a member of the family or household	148
that is the subject of the proceeding and caused physical harm to	149
the victim in the commission of the offense, or has been	150
determined to be the perpetrator of the abusive act that is the	151
basis of an adjudication that a child is an abused child, it may	152
designate that parent as the residential parent and may issue a	153
shared parenting decree or order only if it determines that it is	154
in the best interest of the child to name that parent the	155
residential parent or to issue a shared parenting decree or order	156
and it makes specific written findings of fact to support its	157
determination.	158

(D)(1)(a) Upon the filing of a pleading or motion by either	159
parent or both parents, in accordance with division (G) of this	160
section, requesting shared parenting and the filing of a shared	161
parenting plan in accordance with that division, the court shall	162
comply with division (D)(1)(a)(i), (ii), or (iii) of this section,	163
whichever is applicable:	164

(i) If both parents jointly make the request in their	165
pleadings or jointly file the motion and also jointly file the	166
plan, the court shall review the parents' plan to determine if it	167
is in the best interest of the children. If the court determines	168
that the plan is in the best interest of the children, the court	169
shall approve it. If the court determines that the plan or any	170
part of the plan is not in the best interest of the children, the	171
court shall require the parents to make appropriate changes to the	172
plan to meet the court's objections to it. If changes to the plan	173
are made to meet the court's objections, and if the new plan is in	174
the best interest of the children, the court shall approve the	175
plan. If changes to the plan are not made to meet the court's	176
objections, or if the parents attempt to make changes to the plan	177
to meet the court's objections, but the court determines that the	178
new plan or any part of the new plan still is not in the best	179
interest of the children, the court may reject the portion of the	180
parents' pleadings or deny their motion requesting shared	181
parenting of the children and proceed as if the request in the	182
pleadings or the motion had not been made. The court shall not	183
approve a plan under this division unless it determines that the	184
plan is in the best interest of the children.	185

(ii) If each parent makes a request in the parent's pleadings	186
or files a motion and each also files a separate plan, the court	187
shall review each plan filed to determine if either is in the best	188
interest of the children. If the court determines that one of the	189
filed plans is in the best interest of the children, the court may	190
approve the plan. If the court determines that neither filed plan	191
is in the best interest of the children, the court may order each	192
parent to submit appropriate changes to the parent's plan or both	193
of the filed plans to meet the court's objections, or may select	194
one of the filed plans and order each parent to submit appropriate	195
changes to the selected plan to meet the court's objections. If	196
changes to the plan or plans are submitted to meet the court's	197
objections, and if any of the filed plans with the changes is in	198
the best interest of the children, the court may approve the plan	199
with the changes. If changes to the plan or plans are not	200
submitted to meet the court's objections, or if the parents submit	201
changes to the plan or plans to meet the court's objections but	202
the court determines that none of the filed plans with the	203
submitted changes is in the best interest of the children, the	204
court may reject the portion of the parents' pleadings or deny	205
their motions requesting shared parenting of the children and	206
proceed as if the requests in the pleadings or the motions had not	207
been made. If the court approves a plan under this division,	208
either as originally filed or with submitted changes, or if the	209
court rejects the portion of the parents' pleadings or denies	210
their motions requesting shared parenting under this division and	211
proceeds as if the requests in the pleadings or the motions had	212
not been made, the court shall enter in the record of the case	213
findings of fact and conclusions of law as to the reasons for the	214
approval or the rejection or denial. Division (D)(1)(b) of this	215
section applies in relation to the approval or disapproval of a	216
plan under this division.	217

(iii) If each parent makes a request in the parent's	218
pleadings or files a motion but only one parent files a plan, or	219
if only one parent makes a request in the parent's pleadings or	220
files a motion and also files a plan, the court in the best	221
interest of the children may order the other parent to file a plan	222
for shared parenting in accordance with division (G) of this	223
section. The court shall review each plan filed to determine if	224
any plan is in the best interest of the children. If the court	225
determines that one of the filed plans is in the best interest of	226
the children, the court may approve the plan. If the court	227
determines that no filed plan is in the best interest of the	228
children, the court may order each parent to submit appropriate	229
changes to the parent's plan or both of the filed plans to meet	230
the court's objections or may select one filed plan and order each	231
parent to submit appropriate changes to the selected plan to meet	232
the court's objections. If changes to the plan or plans are	233
submitted to meet the court's objections, and if any of the filed	234
plans with the changes is in the best interest of the children,	235
the court may approve the plan with the changes. If changes to the	236
plan or plans are not submitted to meet the court's objections, or	237
if the parents submit changes to the plan or plans to meet the	238
court's objections but the court determines that none of the filed	239
plans with the submitted changes is in the best interest of the	240
children, the court may reject the portion of the parents'	241
pleadings or deny the parents' motion or reject the portion of the	242
parents' pleadings or deny their motions requesting shared	243
parenting of the children and proceed as if the request or	244
requests or the motion or motions had not been made. If the court	245
approves a plan under this division, either as originally filed or	246
with submitted changes, or if the court rejects the portion of the	247
pleadings or denies the motion or motions requesting shared	248
parenting under this division and proceeds as if the request or	249
requests or the motion or motions had not been made, the court	250
shall enter in the record of the case findings of fact and	251
conclusions of law as to the reasons for the approval or the	252
rejection or denial. Division (D)(1)(b) of this section applies in	253
relation to the approval or disapproval of a plan under this	254
division.	255

(b) The approval of a plan under division (D)(1)(a)(ii) or	256
(iii) of this section is discretionary with the court. The court	257
shall not approve more than one plan under either division and	258
shall not approve a plan under either division unless it	259
determines that the plan is in the best interest of the children.	260
If the court, under either division, does not determine that any	261
filed plan or any filed plan with submitted changes is in the best	262
interest of the children, the court shall not approve any plan.	263

(c) Whenever possible, the court shall require that a shared	264
parenting plan approved under division (D)(1)(a)(i), (ii), or	265
(iii) of this section ensure the opportunity for both parents to	266
have frequent and continuing contact with the child, unless	267
frequent and continuing contact with any parent would not be in	268
the best interest of the child.	269

(d) If a court approves a shared parenting plan under	270
division (D)(1)(a)(i), (ii), or (iii) of this section, the	271
approved plan shall be incorporated into a final shared parenting	272
decree granting the parents the shared parenting of the children.	273
Any final shared parenting decree shall be issued at the same time	274
as and shall be appended to the final decree of dissolution,	275
divorce, annulment, or legal separation arising out of the action	276
out of which the question of the allocation of parental rights and	277
responsibilities for the care of the children arose.	278

No provisional shared parenting decree shall be issued in	279
relation to any shared parenting plan approved under division	280
(D)(1)(a)(i), (ii), or (iii) of this section. A final shared	281
parenting decree issued under this division has immediate effect	282
as a final decree on the date of its issuance, subject to	283
modification or termination as authorized by this section.	284

(2) If the court finds, with respect to any child under	285
eighteen years of age, that it is in the best interest of the	286
child for neither parent to be designated the residential parent	287
and legal custodian of the child, it may commit the child to a	288
relative of the child or certify a copy of its findings, together	289
with as much of the record and the further information, in	290
narrative form or otherwise, that it considers necessary or as the	291
juvenile court requests, to the juvenile court for further	292
proceedings, and, upon the certification, the juvenile court has	293
exclusive jurisdiction.	294

(E)(1)(a) The court shall not modify a prior decree	295
allocating parental rights and responsibilities for the care of	296
children unless it finds, based on facts that have arisen since	297
the prior decree or that were unknown to the court at the time of	298
the prior decree, that a change has occurred in the circumstances	299
of the child, the child's residential parent, or either of the	300
parents subject to a shared parenting decree, and that the	301
modification is necessary to serve the best interest of the child.	302
In applying these standards, the court shall retain the	303
residential parent designated by the prior decree or the prior	304
shared parenting decree, unless a modification is in the best	305
interest of the child and one of the following applies:	306

(i) The residential parent agrees to a change in the	307
residential parent or both parents under a shared parenting decree	308
agree to a change in the designation of residential parent.	309

(ii) The child, with the consent of the residential parent or	310
of both parents under a shared parenting decree, has been	311
integrated into the family of the person seeking to become the	312
residential parent.	313

(iii) The harm likely to be caused by a change of environment	314
is outweighed by the advantages of the change of environment to	315
the child.	316

(b) One or both of the parents under a prior decree	317
allocating parental rights and responsibilities for the care of	318
children that is not a shared parenting decree may file a motion	319
requesting that the prior decree be modified to give both parents	320
shared rights and responsibilities for the care of the children.	321
The motion shall include both a request for modification of the	322
prior decree and a request for a shared parenting order that	323
complies with division (G) of this section. Upon the filing of the	324
motion, if the court determines that a modification of the prior	325
decree is authorized under division (E)(1)(a) of this section, the	326
court may modify the prior decree to grant a shared parenting	327
order, provided that the court shall not modify the prior decree	328
to grant a shared parenting order unless the court complies with	329
divisions (A) and (D)(1) of this section and, in accordance with	330
those divisions, approves the submitted shared parenting plan and	331
determines that shared parenting would be in the best interest of	332
the children.	333

(2) In addition to a modification authorized under division	334
(E)(1) of this section:	335

(a) Both parents under a shared parenting decree jointly may	336
modify the terms of the plan for shared parenting approved by the	337
court and incorporated by it into the shared parenting decree.	338
Modifications under this division may be made at any time. The	339
modifications to the plan shall be filed jointly by both parents	340
with the court, and the court shall include them in the plan,	341
unless they are not in the best interest of the children. If the	342
modifications are not in the best interests of the children, the	343
court, in its discretion, may reject the modifications or make	344
modifications to the proposed modifications or the plan that are	345
in the best interest of the children. Modifications jointly	346
submitted by both parents under a shared parenting decree shall be	347
effective, either as originally filed or as modified by the court,	348
upon their inclusion by the court in the plan. Modifications to	349
the plan made by the court shall be effective upon their inclusion	350
by the court in the plan.	351

(b) The court may modify the terms of the plan for shared	352
parenting approved by the court and incorporated by it into the	353
shared parenting decree upon its own motion at any time if the	354
court determines that the modifications are in the best interest	355
of the children or upon the request of one or both of the parents	356
under the decree. Modifications under this division may be made at	357
any time. The court shall not make any modification to the plan	358
under this division, unless the modification is in the best	359
interest of the children.	360

(c) The court may terminate a prior final shared parenting	361
decree that includes a shared parenting plan approved under	362
division (D)(1)(a)(i) of this section upon the request of one or	363
both of the parents or whenever it determines that shared	364
parenting is not in the best interest of the children. The court	365
may terminate a prior final shared parenting decree that includes	366
a shared parenting plan approved under division (D)(1)(a)(ii) or	367
(iii) of this section if it determines, upon its own motion or	368
upon the request of one or both parents, that shared parenting is	369
not in the best interest of the children. If modification of the	370
terms of the plan for shared parenting approved by the court and	371
incorporated by it into the final shared parenting decree is	372
attempted under division (E)(2)(a) of this section and the court	373
rejects the modifications, it may terminate the final shared	374
parenting decree if it determines that shared parenting is not in	375
the best interest of the children.	376