The Complicated Issue of Child Custody
One Size Doesn't Fit All
Child custody cases can be the most difficult ones in Family Law court. The “best interests” standard comes before the courts in all sorts of ways. these include divorce, dissolution, legal separation, juvenile custody, post-decree modifications, and step-parent adoptions to name a few.
Emotions are sky-high, battle lines are drawn and there is no holding back.
Child custody decisions are some of the hardest ones parents will ever make. They are also among the most important.
A heated topic with many variables, each case is unique. There is no standard custody mandate, no one-size-fits-all manual. Parents owe it to themselves and their children to be as informed as possible
If you live in Ohio, marriage, state law governs divorce, and custody actions.
But the federal, state, and local (county) rules, also have a hand in Ohioan custody matters.
And, local Magistrate and Judges each have their views of what may or may not be in the child’s best interests. They all have the same “playbook” (the Ohio Revised Code and caselaw). But what is obvious to one is NOT so obvious to another.
County-specific local rules sometimes include critical procedural information, such as electronic filing requirements. If you don't adhere to the proper rules and procedures, you may face serious consequences in court.
Who Gets Parental Rights?
Under Ohio law, an unmarried mother is considered the sole residential parent and legal custodian of her child.
Unlike many other states, Ohio offers no legally enforceable rights to an unmarried father unless an Order from the Court is provided that authenticates his parentage. Although visitation rights are established through a court order, unmarried fathers can be granted visitations while they await confirmation of paternity.
Once the Court has issued an order acknowledging the father, however, the mother and father are seen by the Court as “standing upon equal ground,” when establishing the important issues surrounding custody.
In Ohio, the person with custody of a child has “the right to ultimate legal and physical control of the child.”
Legal custody in Ohio is not limited to parents or blood relatives, though, and in some instances, the Court may determine that the interests of the child are best served by giving legal custody to another, unrelated person. This can occur when issues such as addiction or abuse prevent parents from adequately demonstrating to the Court their ability to properly care for their children.
The Courts throughout Ohio retain jurisdiction over custodial matters involving children until they reach the age of eighteen. This means that during divorce proceedings when a child’s custodial circumstances may be changing, the Court must ensure the welfare of the child has been properly addressed.
When the Court’s involvement becomes necessary, it’s important to be aware of the various issues surrounding custody, parental rights, and options, and the factors the court ultimately relies upon to make its decisions.
The State of Ohio has shed the term visitation and, instead, uses the phrase parenting time to describe the non-custodial parent’s time with the child. This block of parenting time varies, but some counties provide visitation schedules according to local rules as a starting point. Consulting with your attorney or contacting your court or county’s website will be helpful.
Franklin County (Cities include Columbus, Ohio; Westerville; Upper Arlington; Worthington; Gahanna; Hilliard; New Albany)
Delaware County (Cities include Sunbury; Delaware, Ohio; Galena; Powell)
Licking County (Cities include Newark, Ohio; Granville; Heath; Johnstown)
Union County (Cities include Marysville; Dublin, Ohio; Plain City; Richwood)
Visitation isn’t always automatic and, in cases where a parent has a history of addiction or abusive behavior, a judge may deny visitation or issue limitations such as ordering supervised visits.
Determining Custody Arrangements
To decide which type of custody arrangement is the best fit for a child, the Court hears the testimony of either or both parents as well as any mediation reports or other documentation filed by the parties. All factors must be considered, including:
- the intentions of the parents regarding the child’s care;
- the child’s desires;
- the relationship the child has with his parent(s), siblings and any other person that might influence the child’s best interests;
- the child’s adjustment to his home, school, and community;
- the mental and physical health of everyone involved;
- which parent is more likely to fulfill and assist with court-approved parenting time or visitation and companionship rights;
- if either parent has failed to make court-ordered child support payments;
- whether either parent or any member of their household has been convicted or pleaded guilty to any criminal offense that resulted in a child being abused or neglected;
- whether any court—criminal or civil—has determined that either parent has abused or neglected a child or there is a reason to believe that either parent abused or neglected a child;
- if the parent or any member of their household has been convicted or pleaded guilty to domestic violence, a sexual offense, or any crime that resulted in physical harm against someone who is a member of the family or household involved in the custody case;
- if either parent has continuously and purposely denied the other parent’s right to court-ordered parenting time;
- whether either parent has or is planning to establish a residence outside of the state;
- who is the primary caretaker of the child
What Types of Custody Will be Ordered?
Courts in the state of Ohio use the “best interests of the children” standard. After A thoughtful evaluation of all oral testimony and/or written documentation, the presiding judge will allocate the parental rights and responsibilities for the primary care of the minor child (or children) by one of two custody arrangements:
Residential Parent & Legal Custodian
Sometimes the Court decides the interests of a child are best served by assigning one parent as the primary caregiver and legal custodian. When this custody arrangement is ordered, one parent is entitled to make all parenting and legal decisions on behalf of the child. The child’s main residence is with that parent. Unless special circumstances exist, there is generally a ruling regarding visitation for the other parent.
Child development experts have long-validated the quality vs. quantity ideology when it comes to parenting time.
The caveat to the concept, of course, would emphasize that quality in any relationship, is largely dependent on having a sufficient quantity of time to properly develop it. The Court tries to fairly divide parenting time between both parents.
Shared Parenting (also called joint custody) addresses all aspects of parenting time and responsibilities; all of these aspects are negotiable.
It should come as no surprise that cooperative households where both parents equally share custodial and caregiver responsibilities produce more well-adjusted children–and parents. It makes sense then that Shared Parenting is the custodial arrangement generally encouraged throughout Ohio’s Court Systems.
When deciding whether shared parenting is in the child’s best interests, the judge will consider all of the aforementioned factors as well as:
- the ability of each parent to work together in making decisions about their children;
- how well the parent encourages love and affection between the child and another parent;
- a history or potential for child abuse, domestic violence or parental kidnapping by either parent;
- how far apart both parents live from each other (to see if shared parenting would be practical);
- the recommendation of the guardian ad litem (a representative appointed by the court that investigates what solutions would be best for the child).
The Court’s ruling must be gender-neutrally based, and the Court is unable to favor a mother over a father. The judge is also not allowed to give preference to a parent because of that parent’s financial status.
More About Shared Parenting
At least one parent has to file a parenting plan to request Shared Parenting. The plan must conform to all state and local court rules. The court will review the plan, and approve it only if it is in the best interest of the child or children.
The written Shared Parenting Plan should detail. It must include how parents will share rights and responsibilities. But it doesn’t need to be split into 50-50 terms. The point is for the plan to make sense. It should take into account siblings, work schedules, etc., to make the transition easy for the child.
A strong parenting plan should be ready for the judge to approve. A well-thought-out plan will include a Residential Schedule (where a child is during the week); a Holiday Schedule (where a child will be for holidays); and a Summer Break Schedule (where your child plans to be in between school years). If there is any confusion surrounding the time split, check out the county standard as a good place to start. A standard or model schedule guideline is available for each county a
What if One Parent Lives in Another State?
Visitation and even custodial parentage can be impacted by a move.
One factor that may impact a judge’s decision regarding custody is a parent’s location. If a parent has relocated out-of-state or has immediate plans to do so, custody is generally not shared. Rather, a Residential Parent & Legal Custodian may be ordered, with visitation ordered for the out-of-state parent.
It’s very important to note that a Notice of Intent to Relocate must be filed with the jurisdictional court. This is the court your custody order was issued from. This must be done before moving out of state. If the other parent is supportive of the move, an agreed entry can be filed informing the court. If not, that parent may object to the move and, if the objection is properly filed, the court will conduct a hearing on the matter. Be sure to check your county’s local rules with regards to guidelines for serving the notice.
If testimony is provided causing the judge to conclude that relocation is not in the best interest of the child, or there is no valid reason for the move, the relocation request can be denied.
Enter the Experts
Parents should do all they can to come to an amicable agreement on as many issues as possible before enlisting assistance from the court. If a divorce is hotly contested, or a relationship is particularly volatile, however, the court may not feel it has enough objective information to make its custody decision based solely on the interviews of the parents. In this case, the Court may order a custody evaluation.
During a custody evaluation (the cost of which is typically split between the parties), a group of professionals is appointed by the judge to gather additional material to aid the Judge in his or her decision process.
The professional team may include
- A psychologist to provide a psychological assessment
- An investigator to research background information;
- A guardian ad litem to represent the interests of the child (or children)
- Various interviews with individuals, such as teachers, neighbors, health care providers, etc.
The guardian ad litem can also recommend substance abuse evaluations or mental health assessments to obtain a more complete picture of each parent’s attributes and, in particular, a parent’s ability to meet the child’s needs.
What Does the Child Want?
Any child exhibiting maturity may state an opinion as to who should be his legal custodian. The Court evaluates a child’s age, aptitude, and level of cognitive reasoning; if sufficient, a private interview may be scheduled.
Although Ohio law does not specify an age at which a child’s preferences are duly considered, current statutes allow for consideration of a child’s wishes on a case-by-case basis.
The Court is permitted by statute to interview with the minor child (children) if either parent requests it. This meeting is generally quite informal, usually taking place in the judge’s chambers (office), rather than in the intimidating atmosphere of open court. The Judge may also initiate the interview, should s/he believe it will support the court’s objectives in determining the best interests of the child. A child’s preference is only one of many factors in the criteria the Court may use to come to its decision.
If, after custody has been decided there is a change in circumstances that impacts the custody order, a parent may file a motion to request the court modify its order. Keep in mind that a modification is not a certainty, and the court will generally only modify its order if new facts, unknown at the time the order was made, are introduced.
If the court decides there was a change of circumstances warranting a modification, a new order will be made. The court may also move for a modification on its own. Seeking the advice of your attorney before filing modification paperwork is a good idea to ensure the series of events is significant enough for the Court to grant a modification.
After a decade of activity about custody law reform, current trends emphasize parent-determined arrangements, with the courts taking more of a back seat role. This means that more than ever, parents should always stay informed when it comes to the issue of child custody in Ohio.
No standard schedule will meet the needs of every parent-child relationship, so a couple is always encouraged to come up with their agreement that will meet both their needs and their children’s specific circumstances.
Need more information on child custody? Have questions about your shared parenting agreement? Contact Jack’s Law Office at (740) 369-7567.
Jack W. Carney-DeBord is licensed and admitted to the practice law in the State of Ohio-ONLY. Jack has no intention of soliciting clients in any state other than Ohio and nothing posted on this website should be viewed as an attempt to solicit or do business in ANY state other than the State of Ohio.
The content on this website is provided as general information only and is not legal advice. You should not act or refrain from acting based upon information provided on this site without first consulting legal counsel.
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