In Ohio, the only people who have a right to custody of a child are the biological parents. In general, when a child is born to a married couple, both parents are presumed the legal custodians of the child. If a child is born to a single mother, the mother will be presumed the sole legal custodian until the father establishes paternity and petitions the court for parental rights. Non-parent custody is difficult to establish, regardless of whether they are related to a child. There are, however, several situations where a non-parent may be designated the legal custodian through a court order.
Let’s start with some definitions to lay a foundation.
Legal Custody, in Ohio, is when a person has the right to have actual physical care and control of a minor child, which means making decisions for the child on a day-to-day basis and on matters such as education, residency, medical decisions, and religion.
For Legal Custody, the Courts will generally appoint one person as the Legal Custodian of the child, or two people in the case of Joint Custody, which is called Shared Parenting.
Shared Parenting is when both parents have the same right to make decisions for the child, which usually requires open communication and cooperation. If the parents can’t agree, mediation or other dispute resolution may need to be involved. While both parents in shared parenting situations also have a right to physical custody, they don’t necessarily have to have equal 50/50 Parenting Time with the child, and sometimes depending on the situation, one parent may only see the child for a few weeks out of the year.
Parenting Time is the time one parent gets to spend with the child.
Visitation or Companionship Time These are terms used when someone who does not have Legal Custody is granted a right to spend some amount of time with the child. Regardless of how much Visitation or Companionship Time a non-custodial person may be granted, they still will not have the right to make decisions on matters involving the child.
Visitation is granted to a parent who is not the Legal Custodian, and
Companionship Time is granted to a grandparent or other non-parent who has a close relationship with the child.
There are cases where a biological parent may be deemed unsuitable.
Biological parents have a constitutionally protected right to custody of their children. In order to be stripped of that right involuntarily, the biological parent(s) must first be found unsuitable.
Parental suitability is determined on a case-by-case basis. Generally, the Courts are going to look at multiple factors such as:
- Is the child being provided with necessities such as food, clothing, and stable housing,
- Is the home safe for the child to live in,
- Is the child enrolled in and attending school regularly,
- Is the child attending doctor appointments and check-ups when appropriate,
- Is the child physically and mentally developing at a reasonable rate for their age,
- Is the home environment safe for the child,
- Is the child being protected from potential harm.
What it boils down to is the biological parent(s) can be found unsuitable when circumstances exist that would be detrimental to the child if the biological parent(s) maintain custody.
If one or both biological parents dies or is deemed unsuitable, the court will explore other options.
When a child’s custodial parent passes away, the non-custodial living parent will usually be the next in line to obtain custody. If a relative wishes to gain custody over the parent, either the living parent will have to agree to the relative being granted custody, or the relative will have to show that the living parent is unsuitable to be the child’s custodian. If the living parent is granted custody, the relative may still be able to seek a court order for companionship time.
If both parents of a minor child pass away or are found unsuitable, the courts will look for someone who has a good pre-existing relationship with the child and who is willing and able to take the child in. The “hierarchy” is usually whoever is most closely related to the child first, for example,
- Adult siblings,
- Aunts / Uncles,
If no close family exists or none can take the child in, then the court would look to any unrelated persons who have an established relationship with the child, such as close family friends.
A final note on child support.
It is a parent’s duty to financially support their minor children regardless of who has legal custody. This means that if a non-parent is granted custody of your child, because you have been considered unsuitable, you may still be expected to provide financial support for that child through child support.
Talk to an experienced family law attorney.
If you find yourself in a situation where you are seeking non-parent custody or visitation of a minor child, or someone is seeking what you feel is unwarranted time with or custody of your child, schedule a consultation with a skilled attorney. It is important that you have a full understanding of your rights and responsibilities.