Child custody proceedings are among the most stressful and emotional of family law matters.
Hiring an attorney that can maintain objectivity and guide you through the legal process is one of the best things you can do to protect your rights as a parent.
Custody refers to the parent or individual who is responsible for making major decisions for the children. In Ohio, there are two options for custodial designation: sole custody or joint custody. Joint custody is commonly referred to as “shared parenting.” Any agreement or decision that awards joint custody to parents will be referred to as a “Shared Parenting Plan,” and will contain all terms relating to the allocation of parental rights and responsibilities (i.e., child support, parenting time, school placement parent, etc.). If parents are awarded joint custody/shared parenting, they must work together to reach an agreement regarding all major decisions for their children (e.g., healthcare and schooling).
In cases of sole custody, the parent designated as custodian may make all major decisions for the children without any discussion with the other parent. The parent who does not have custody, commonly referred to as the “non-custodial” or “non-residential” parent, though they may not make major decisions for their children, they do have the right to obtain copies of medical, school, and daycare records. Further, a non-residential parent may attend all school functions to which parents are invited.
Parenting Time vs. Visitation or Companionship Time
“Parenting time,” as it sounds, refers to court-awarded time that a parent spends with their children. “Visitation” or “companionship time” refers to court-awarded time that a non-parent individual spends with the children.
In determining what parenting time schedule to award, the court must refer to the best interest factors enumerated in Ohio Revised Code Section 3109.04(F)(1), which includes such factors as the wishes of the children’s parents, the mental and physical health of all parties involved, and whether the child support obligor is current on their payments.
Supervised Parenting Time
In some cases, significant concerns arise about the parenting abilities of one parent that necessitate a supervised parenting time schedule. In such instances, the court may order that the parenting time occur at a supervised visitation center or it may allow a family member to supervise the parenting time. If at a supervised visitation center, a supervisor will be assigned to monitor the parenting time session and will take detailed notes regarding the same. The supervisor will also ensure that any discussion topics between the parent and children remain appropriate.
Modifying Parenting Time
After a parenting time order is in place, even if the parents mutually agree to modify the schedule, nothing is binding unless it is incorporated into a subsequent court order. Therefore, it is important to memorialize any change in parenting time, especially if significant, with the court.
In cases where the parents are not in agreement on a modification of parenting time, the parent desiring the change will need to file a Motion to Modify with the court. Such a motion re-opens the case and allows the court to consider the current circumstances of the parents and children when determining if a change is warranted. In making such a determination, the court must again consider the best interest factors outlined in Ohio Revised Code Section 3109.04(F)(1).
The legal factors that must be considered in determining whether a modification of custody is warranted vary depending upon the current custodial designation. Simply put, if one parent is designated as the sole legal custodian, then the court must determine whether a change in circumstances of the custodial parent or children has occurred and, if so, whether a change in custody is in the children’s best interests.
In instances of shared parenting, the court need only consider the best interests of the children when determining whether to terminate the shared parenting decree and designate one parent as sole legal custodian.
Guardian ad Litem
In some instances, whether during a divorce, initial custody proceeding, or a post-decree modification, a Guardian ad Litem may be appointed by the court on its own or after request by a party. A Guardian ad Litem is often a licensed attorney, but some counties do allow for non-attorneys to serve as Guardians. The purpose of the Guardian is to conduct a thorough investigation and file a written recommendation with the court regarding custody and parenting time.
While a Guardian ad Litem can be an added cost, they can also be an invaluable resource for both parties as they can help resolve conflicts, regardless of size, throughout the case, thereby lessening the amount of in-court litigation.
ESTABLISHING PATERNITY IN COLUMBUS, OHIO
Presumption of Paternity
If a mother is married at the time of her child’s birth, the mother’s husband is presumed to be the natural father. Additionally, if the child is born within three hundred days of the finalization of a divorce, dissolution, annulment, or husband’s death, the former husband is still presumed to be the child’s natural father.
In instances where paternity is not presumed, or the presumptive father is not, in fact, the natural father, paternity must be established. This can be done by several methods. First, the mother and natural father can sign an Acknowledgment of Paternity, which is then eventually filed with the Ohio Department of Health, Office of Vital Statistics. If this Acknowledgment is signed at the time of the child’s birth, the natural father will be listed on the child’s birth certificate.
If either parent refuses to acknowledge the natural father’s paternity, another option is to proceed through the Child Support Enforcement Agency (“CSEA”). If services are requested through CSEA, the alleged father will be ordered to submit to a DNA test. If it is proven that the alleged father is, in fact, the natural father, paternity will be deemed to have been determined “administratively.”
Alternatively, paternity may be determined through court action. In such instances, the alleged father will be ordered to submit to a DNA test. If, at any point the parents wish to acknowledge paternity, they may do so provided they also acknowledge waiver of their right to a DNA test.
Changing the Birth Certificate
In the event that the natural father is not on the child’s birth certificate, upon paternity being established through a court action, the court may order that a new birth certificate is prepared. In instances where paternity is established administratively through the Child Support Enforcement Agency or via Acknowledgement filed with the Ohio Department of Health, Office of Vital Statistics, a new birth certificate will automatically be issued.
In the event the presumed father is not the natural father, or in cases where paternity has been acknowledged by a man who is not the natural father, an action to rescind the acknowledgement may be filed. Such actions may be brought on the grounds of mistake of fact, duress, or fraud. The timeframe within which a man can rescind an acknowledgement varies, so it is important that you speak with an attorney as soon as possible if you believe you have wrongly or mistakenly acknowledged paternity of a child.
Once a custody and parenting time order is in place, the court’s role as a supervisor terminates. So, what happens if the other parent fails to abide by the court order? In order to enforce the court order, the parent alleging that the other has not upheld their end of the agreement must file a Motion for Contempt (also known as a Motion to Show Cause). The other parent will need to be served with the contempt motion, and the matter is eventually brought before the court for hearing. If the court determines that a parent is indeed in violation of a court order and there is no defense to said violation, then that parent will be found in contempt.
If found in contempt, a parent can be fined or even sentenced to jail time, among other penalties that may be imposed. Oftentimes, however, even if a parent is fined or sentenced to jail time, the fine/sentence may be suspended to allow the offending parent to “purge” the contempt. If the offending parent does not purge within the required timeframe, then the fine/sentence can be enforced. In addition to a fine or sentence, the offending parent will also be ordered to pay the attorney’s fees for the parent who brought the contempt motion.
Step-parents may adopt their step-children if their spouse consents to the adoption and the other biological parent consents or if his/her consent is not required. Consent is not required if the other parent has had de minimal contact with the child or if they have failed to provide financial support for the child for one year prior to the filing of the petition to adopt.
A custodial adoption is when a person has custody of the minor child and files a petition to adopt the minor child. Again, the adoption can go forward if the parents consent or if it can be proven that the consent is not required as described above.
With both step-parent and custodial adoptions, placement is not required. Placement is when the probate court authorizes the minor child to be placed with a person or family. After the child has been placed with the person or family for 6 months, the adopting individual(s) can then file the petition for adoption.
A private adoption is where the birth mother and the adopting party or parties arrange for the adoption among themselves. Once the child is born, the adopting parents seek placement of the child through the probate court with the consent of the birth parent(s). Once placement has been established and the child has resided with the adopting parent(s) for six (6) months, then the adoption can be filed and processed through the probate court.
An agency adoption is where the adopting parent(s) works with an adoption agency or with children services to connect with a child that is up for adoption or with a birth parent that is seeking to provide their baby for adoption. Another option for individuals or couples seeking to adopt is to become a foster parent and work with children services to adopt children that you foster through abuse, neglect, and dependency cases brought by children services in juvenile court.
In any case, the person who adopts a child becomes the legal parent of the child for all purposes including the obligation to care and provide for the child, and the child’s right to inherit from the adoptive parents. The adoptive child is treated as a biological child by the law. If you are interested in adopting a child, Trolinger Law Offices, LLC can assist you with this process. Contact us to schedule your consultation.
Non-Parent Custody / Grandparent Custody
Ohio has been impacted by the opioid crisis as much as, if not more than, the rest of the country. This has resulted in the need for nonparents and/or grandparents to obtain custody of an addict’s children. When parents are unable or unwilling to provide the proper care for their children, then non-parents can file their complaint for custody to obtain custody of the minor children. Grandparents, family members, or other individuals who know such affected children can request custody without the need for Child Protective Services (CPS) to get involved. Private custody actions between non-parents/grandparents and the parents of the child are best to be initiated before CPS gets involved. Once that happens, the paradigm shifts. Child Protective Services seeks to take custody of the children, and, further, works to reunite the family. Non-parent custody actions only seek to protect the best interests of the child, which is why this is the preferred method of familial intervention in the custodial issues between the child and parent.
If you have a legal matter relating to your family or business, you can count on the legal team at Trolinger Law Offices, LLC to tailor a winning strategy to fit your circumstances and protect your interests. Contact us today to request a consultation.
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