I fully concur in the majority's analysis and disposition of appellant's first, second and third assignments of error. I write separately only because I believe the majority has failed to address the issue raised by appellant in her fourth assignment of error.
The majority properly notes the best interest test found in R.C. 3109.04(F), which test applies whether the case involves an original decree allocating parental rights and responsibilities, or a modification thereof. However, the majority ignores the preceding subsection upon which appellant bases her argument. R.C. 3109.04(E)(1)(a) provides, in pertinent part:
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, his 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.
(Emphasis added).
If, as appellant argues, the earlier paternity order was a prior decree allocating parental rights and responsibilities, the trial court must make a finding regarding both change of circumstances and best interests of the child. The trial court did not make a finding of change of circumstances in this case.
Because the evidence in the case sub judice established the child lived with both his parents most of his life, I agree with the trial court the initial parenting decree and support order in Case No. JU94436 was not a decree allocating parental rights and the trial court properly considered the Complaint for Custody as an initial custody determination.
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______________________________ JUDGE WILLIAM B. HOFFMAN
JUDGMENT ENTRY
CASE NO. 1998-CA-00248
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas, Juvenile Division, of Stark County, Ohio, is affirmed. Costs to appellant.
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______________________________ JUDGES