Dissenting:
The parties hereto entered into a separation agreement which was approved by the court and made a part of the decree of divorce. The initial custodial order was made without the court hearing the testimony of either or both parties as contemplated by R.C. 3109.04(A).
There is nothing in the record to indicate that the original award of custody was made by the court after determining the child's best interest and after considering all the relevant factors set forth in R.C. 3109.04(C).
One would presume that parents would reach a custodial agreement which would be to their child's best interest, but such presumption should not deprive the child or the parties from having a judicial finding of the child's best interest in the first instance.
While I do not take issue with the majority's rendition of the law regarding change of custody subsequent to a judicial determination, I must dissent in its adoption of the standard for a change of custody as set forth in R.C. 3901.04(B) when the facts indicate an initial judicial custody determination did not occur.
The majority relies upon Pryer, supra. As in this cause, the Pryer court failed to address the provisions of R.C. 3901.04(A) in its consideration.
The polestar of any custody matter is the best interest of the child be it an original award of custody or a modification of the original custody award. Here, the trial court concluded that the child's best interest would be served by a change of custody. This decision was reached after hearing the testimony of both parties for the first time.
To require a finding a endangerment to make such a change would place the court in a position of concluding that parties' agreement of custody may not be in the child's best interest but it is not so bad as to allow a change of the custodian. Accordingly, I dissent.