Lee v. Lee, Unpublished Decision (7-3-2002)

I concur in judgment only because I believe the trial court chose the right test but applied it incorrectly. R.C. 3109.04 must, out of necessity, include a parental suitability element in its best interest test. In fairness to the trial court, I must acknowledge that the case law in this area has been inconsistent to say the least. Thus, I am not critical of the trial judge's analytical and thoughtful approach to this case.

We are not asked to assess R.C. 3109.04's constitutionality here, and I do not profess to do so. But, see, Esch v. Esch (Feb. 23, 2001), Montgomery App. No. 18489, which…