Child custody proceedings are among the most stressful and emotional of family law matters.
Hiring an experienced Ohio child custody 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.
OHIO CUSTODY LAWYER
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.
Check out our co-parenting blog for practical advice on effective communication once custody and parenting time has been established.
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. At a supervised visitation center, a supervisor will be assigned to monitor the parenting time session and will take detailed notes. 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 confirm 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. A Motion to Modify re-opens the case and allows the court to consider the current circumstances of the parents and children to determine if change is warranted. When making such a determination, the court must again consider the best interest factors outlined in Ohio Revised Code Section 3109.04(F)(1).
MODIFYING CUSTODY IN OHIO
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.
Although 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 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? 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 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. 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.
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 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. If that happens, Child Protective Services seeks to take custody of the children and 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.
These are urgent and important matters for any family or individual facing legal issues. If you feel that any of these matters may apply to you, please reach out today to schedule your consultation so we can provide you, your family, and/or your business with the support you’ll need.
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