How to Change a Custody or Parenting Time Order in Ohio

The standard for changing custody

Under R.C. 3109.04(E)(1)(a), the court may not modify a prior decree allocating parental rights and responsibilities unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time, that a change has occurred in the circumstances of the child, the residential parent, or either parent under a shared parenting decree, and that the modification is necessary to serve the best interest of the child.

Even then, the court must keep the residential parent named in the prior decree unless a modification is in the child’s best interest and one of these applies:

1. The residential parent agrees to the change, or both parents under a shared parenting decree agree to a change in the designation.
2. The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become residential parent.
3. The harm likely to be caused by a change of environment is outweighed by the advantages of the change to the child.

The best interest factors in R.C. 3109.04(F)(1) apply to modifications as well as original decrees. Active military service, past, present, or possible future, may not be treated as the change in circumstances (R.C. 3109.04(I)(2)).

Shared parenting decrees

In Fisher v. Hasenjager, 2007-Ohio-5589, the Supreme Court of Ohio held that changing the designation of residential parent and legal custodian requires a change in circumstances and a best interest finding under R.C. 3109.04(E)(1)(a). Quoting its earlier decision in Davis v. Flickinger, the Court explained that the requirement aims to spare children a constant tug of war between parents. By contrast, the terms of a shared parenting plan can be modified under R.C. 3109.04(E)(2)(b) when the change is in the children’s best interest. A parent with a sole-residential-parent decree can also ask to convert it to shared parenting, with a plan, under R.C. 3109.04(E)(1)(b); the court may do so only if a modification is authorized under R.C. 3109.04(E)(1)(a) and it approves the plan.

Changing parenting time

In Braatz v. Braatz (1999), the Supreme Court of Ohio held that modification of visitation rights is governed by R.C. 3109.051, and that the party asking for a change need make no showing that there has been a change in circumstances. The court considers the R.C. 3109.051(D) factors and decides what parenting time is in the child’s best interest.

The uniform motions

• Form 27 (Juvenile Form 6), Motion for Change of Parental Rights and Responsibilities (Custody) (amended September 21, 2020). Its instructions say it is used to request a change in a shared parenting plan, a parenting plan, or the designation of the sole residential parent and legal custodian. It asks how circumstances have changed since the existing order and what change you want.
• Form 26 (Juvenile Form 5), Motion for Change of Parenting Time (Companionship and Visitation) (amended September 21, 2020), to change the existing parenting time order.
• Both say a Request for Service (Form 31 (Juvenile Form 10)) and a Parenting Proceeding Affidavit (Affidavit 3) must be filed with the motion. Check your county’s local rules for any other forms it requires.

A parent who requests parenting time may also file a motion asking the court to waive all or part of the costs. The court may do so if it finds the parent indigent and the waiver in the child’s best interest (R.C. 3109.051(L)).

Serving the motion

After a divorce or legal separation decree, the court’s continuing jurisdiction is invoked by a motion filed in the original action, and notice must be served the way a summons is served under Civ.R. 4 to 4.6 (Civ.R. 75(J)). The service guide covers those methods. Once continuing jurisdiction is invoked, the discovery rules in Civ.R. 26 to 37 apply.

If you receive a motion

There is no statewide uniform form for responding to a motion to change custody or parenting time. Under Civ.R. 6(C)(1), responses to a written motion, other than a summary judgment motion, may be served within 14 days after service of the motion, and on a party’s motion the court may shorten or lengthen that period for good cause (Civ.R. 6(C)(3)). Local rules may address responses and hearings, so read your notice of hearing and your county’s rules.

Primary sources

Rules and forms change. Check the current version at the source before you file.

• R.C. 3109.04(E), modification
• R.C. 3109.051, parenting time
• Fisher v. Hasenjager, 2007-Ohio-5589
• Braatz v. Braatz, 1999-Ohio-203
• Ohio Civil Rules 4 to 4.6, 6, and 75(J)
• Uniform Domestic Relations Form 27 (Juvenile Form 6), Motion for Change of Parental Rights and Responsibilities (Custody)
• Uniform Domestic Relations Form 26 (Juvenile Form 5), Motion for Change of Parenting Time (Companionship and Visitation)
• Uniform Domestic Relations Affidavit 3, Parenting Proceeding Affidavit
• Uniform Domestic Relations Form 31 (Juvenile Form 10), Request for Service