Background
Michael T. Swiger and Carrie A. Oliver (formerly Swiger) divorced in July 2022. Their child A.S. initially lived with Oliver as the residential parent. In December 2023, the parties agreed to a shared parenting arrangement. In September 2024, by mutual agreement, the trial court designated A.S.’s paternal aunt and uncle as the child’s residential parents and legal custodians, with both biological parents receiving parenting time.
In fall 2025, both Oliver and Swiger filed separate motions seeking to be designated as the residential parent and legal custodian, but neither party sought to vacate the existing order granting custody to the aunt and uncle. Before any hearing could occur, the trial court sua sponte (on its own motion) issued a temporary order in November 2025 designating Swiger as residential parent and simultaneously vacating the prior September 2024 agreement. Oliver appealed this temporary order, but the appeal was dismissed as premature because a hearing was still pending. When Oliver and Swiger then voluntarily dismissed their pending motions in January 2026, the trial court issued a final order stating that interim orders would remain in effect. Oliver appealed.
The Court’s Holding
The court reversed the trial court’s judgment and remanded the case, holding that the trial court acted without legal authority and violated procedural due process. The court identified multiple errors of law. First, the trial court lacked authority to issue an interim order modifying parental rights in a post-decree context. Ohio Civil Rule 75(N) and R.C. 3109.043 authorize temporary custody orders only during the pendency of a divorce action, not after a final decree has been entered. Second, the trial court lacked authority to sua sponte vacate its prior September 30, 2024 order designating the aunt and uncle as residential parents. Civil Rule 60(B) requires a party to file a motion before a court can vacate a judgment; neither parent had requested vacation of that order.
The court further held that the trial court failed to comply with R.C. 3109.04(E)(1)(a), which requires any modification of a prior custody decree to be based on findings that (1) a change of circumstances has occurred, and (2) modification serves the child’s best interest. The trial court made no such findings. Most significantly, the trial court issued its order without holding an evidentiary hearing, violating fundamental procedural due process and preventing Oliver and Swiger from cross-examining evidence—here, a guardian ad litem report—on which the court relied. Without a hearing and factual development, the trial court also failed to consider the ten statutory factors required by R.C. 3109.04(F) for determining the child’s best interest.
Key Takeaways
- Trial courts lack authority to issue interim custody orders in post-decree modification proceedings; such orders are available only during pending divorce actions.
- A trial court cannot sua sponte vacate a prior final judgment without a motion from one of the parties, regardless of its discretion in custody matters.
- Post-decree custody modifications require explicit findings of changed circumstances and a determination that the change serves the child’s best interest.
- Procedural due process requires an evidentiary hearing with opportunity for cross-examination before a trial court modifies custody, even when the court relies on a guardian ad litem report.
- Trial courts must apply the statutory best-interest factors under R.C. 3109.04(F) with a factual record; issuing orders without a hearing violates both statutory requirements and due process.
Why It Matters
This decision provides critical guidance on the procedural safeguards governing post-decree custody modifications. Although trial courts retain broad discretion in custody matters, that discretion has firm limits—they cannot commit errors of law, and they must follow statutory procedures. The decision clarifies that practitioners cannot rely on temporary orders during post-decree proceedings and that trial courts must hold hearings before modifying custody, even when proceeding sua sponte. Importantly, the court reinforced that procedural due process—the right to notice and an opportunity to be heard—is not waivable in custody cases and is fundamental to the integrity of custody determinations.
For practitioners, the ruling underscores that parties must affirmatively move to vacate a prior order if they seek its elimination; modification motions do not implicitly request vacation. It also reaffirms that R.C. 3109.04(E)(1)(a)’s “change of circumstances” requirement is substantive, not procedural—trial courts cannot sidestep it even in agreed cases or when acting in the perceived best interest of the child. The reversal and remand for “further proceedings consistent with this opinion” leaves open the possibility that Swiger could ultimately prevail, but only if the trial court follows the proper statutory and procedural framework.