CHILD CUSTODY BASICS FOR DIVORCING COUPLES



CHILDREN CANNOT CHOOSE WHICH PARENT TO LIVE WITH


ohio_child_custodyFirst, before we address the specifics of how child custody is determined in Ohio for divorcing couples, it is probably wise to note at the outset that children do not have the power to make the determination.  It is a common misconception that children, once they reach a certain age, have the power to pick the custodial parent.  While former Ohio law allowed a child to make this decision upon reaching the age of 12 years old, the current law does not.   


However, children’s wishes can be taken into account by the Court when it makes the allocation of parental rights and responsibilities.  Upon the motion of either parent, the Court will conduct what is called an “in-camera” interview of the children to determine their wishes and concerns regarding custody.  The interview is done in the judge’s chambers and away from both parents.  Therefore, although children do not possess the absolute right to choose which parent to live with, their wishes can (and often do) play a major role in which parent the Court designates as the custodial parent.
If you believe your child would prefer to reside with you, it would be a good idea to request that the Court perform the in-camera interview.


STATUTES THAT GOVERN CUSTODY GENERALLY


Under Ohio law, child custody disputes generally fall within the coverage of either Ohio Rev. Code Ann. § 3109.04 or Ohio Rev. Code Ann. § 2151.23.


Ohio Rev. Code Ann. § 3109.04 provides guidance to Domestic Relations courts for the allocation of parental rights and responsibilities between divorcing parents (or parents that receive an annulment, dissolution or legal separation).  The standard is the Best Interest of the Child and the Court is to consider 10 factors listed in the statute when making the allocation (more information on those factors below)


Note: that the statute permits a domestic relations court, under certain circumstances, to award custody of a child of divorcing parents to a relative of the child other than one of the parents when it is in the best interest of that child.   This is highly unusual and would normally be reserved for situations where both parents are unsuitable to act as the custodian. 


The other statute, Ohio Rev. Code Ann. § 2151.23(A)(2), gives Juvenile Courts exclusive jurisdiction to determine the custody of any child not a ward of another court of this state. Basically, this statute applies when there is no divorce proceeding in the Domestic Relations Court. The Juvenile Court is to use the Best Interest standard as well for unmarried Couples or married couples that have not initiated divorce proceedings when determining which parent will be awarded custody of a child.


INITIAL CUSTODY DETERMINATIONS BETWEEN PARENTS

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Assuming that there is no shared parenting plan adopted by the Court (see below for an explanation of shared parenting), the Court is mandated to issue a decree that includes the naming of one parent as the residential and custodial parent.  This is often a very contentious issue that is litigated to the fullest extent at trial.  Both parents should prepare to present evidence as to why they ought to be awarded custody of the children of the marriage, keeping in mind that the focus is always on the children themselves.  Issues such as removing the child from his or her current school district, friends, and other social networks / activities are important factors considered by the Court as it makes the determination. 


Whether the initial allocation of parental rights and responsibilities (custody and visitation) is being made in the Domestic Relations Court as part of a divorce, dissolution or annulment proceeding, or whether the initial determination is made in the Juvenile Court between two unmarried parents, the standard if the same – the Best Interest of the Child, which is an amorphous and broad legal standard that allows great flexibility to the Court in awarding Custody.  We will first address the initial allocation of parental rights in the context of a divorcing couple.


Initial Determination in Domestic Relations Court


In an action to determine an original allocation of parental rights and responsibilities, the trial court must consider all factors relevant to the best interest of the child, including, but not limited to the following 10 factors listed in the statute:

 

  • The wishes of the child's parents regarding his care;

  • If the court has interviewed the child, the wishes and concerns of the child, as expressed to the court;

  • The child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest;

  • The child's adjustment to his home, school, and community;

  • The mental and physical health of all persons involved in the situation;

  • The parent more likely to honor and facilitate parenting time rights, visitation, and companionship rights approved by the court;

  • whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor

  • Whether either parent or member of that parent’s household has been convicted of a crime or done an act that resulted in a child being adjudicated abused or neglected, or whether any member of the household has been convicted of 2919.25 or sexually oriented offense involving a member of the household

  • Whether a parent has continuously and willfully denied the other’s rights to parenting time Whether either parent has established, or plans to establish, a residence outside of Ohio  

What is important to remember about the original allocation of custody is that both parents stand on equal footing as to custody.  The Court is to simply determine what custody situation would be in the child’s best interests, taking into account the factors promulgated in the statute. This is not the case when it comes to later attempts, through post-decree motions, to change the original allocation of parental rights and responsibilities.  When a parent wants to alter the current custody allocation, they no longer stand on equal footing with the custodial parent and they have a higher burden to meet than in the initial divorce proceeding.  The lesson is that a parent should do everything he or she can to get the custody initially because it becomes much more difficult to alter that original custody determination made by the Court during the actual divorce proceeding.


Along with the factors that the Court is to consider when determining the child’s best interest, the Court may also order an evaluation of the child and the child’s parents. The court may order an investigation to be done in order to determine the character, family relations, past conduct, earning ability, and financial worth of each parent.  The court may also order either or both parties and any minor children to submit to medical, psychological, or psychiatric examinations.  When either party makes a written request to the Court, the report of such any investigations or examinations must be made provided to either parent before the start of the trial (5 days before trial under the statute) that will allow both sides to prepare.  Both parents would have the right to cross examine any expert or investigator that worked on the case.

SHARED PARENTING / JOINT CUSTODY
Under current Ohio law, there is no such thing as “joint custody” anymore.  Instead that concept has been replaced with the concept of a Shared Parenting Plan.  A shared parenting arrangement can be crafted such that is really is like joint custody, but a shared parenting arrangement is definitely different in major ways from what the law of joint custody used to be.


Under earlier versions of Ohio family law, joint custody could occur only if both parties agreed to such an arrangement.  Because it was often rare for splitting parents to agree on much of anything, let along custody of the minor children, there was really presumption that one parent would be granted sole custody of the children of the marriage. Modern Ohio family law, however, now allows the court to issue an order of shared parenting even if one of the parties objects to such a custody arrangement, if it would be in the best interest of the child.  In other words, a parent can be made to share custody with the other parent.


So what is a Shared Parenting Plan? Shared parenting basically means that both parents are considered the residential parent and legal custodian of the child, rather than having one parent deemed the residential parent and the other parent given only visitation rights.  One or both parties can file a proposed shared parenting plan with the court that details the terms of the custody arrangement. Some terms of a shared parenting are mandatory under the statute, while others might be terms the parents think are needed in their particular plan given their particular circumstances. If the parents can agree, they can actually submit a joint proposal for shared parenting.  If the Court accepts a proposed shared parenting plan, whether submitted jointly or by one parent, then the Court will incorporate that plan in the final divorce decree.


Each shared parenting plan should contain within it a provision for the allocation of time for the children to spend with each parent and should outline that allocation as it relates to the parties’ routine schedule, vacation schedule and holiday schedule. In many instances, the parties will follow a fairly standard parenting time schedule normally seen in the visitation context, even though the parenting time is set-out in a shared parenting plan. Thus, one parent may have the children every other weekend and one or two evenings during the week, while the other parent will have the children the remainder of the time.

Usually, vacation time with each parent ranges from two to four weeks per year. Some couples restrict the vacation time to the summer months only, while others prefer the vacation option to include any time when the children are not in school, allowing the parties to each take the children for all or a portion of Christmas and spring vacations. Because the Christmas vacation is normally a couple weeks long, it is often possible for the parents to split the Christmas vacation. In contrast, the spring vacation is normally shorter and is not something the parents can divide between them. Because of that, spring vacation should normally be alternated year-to-year.

Some people also wish to restrict the vacation provision to out-of-town vacation, as opposed to allowing a parent to have children for vacation in-town, which is really a period of exclusive parenting time under the guise of vacation time. It is always advisable to specify a time by which each parent shall give the other written notice of his or her intent to exercise their vacation time.

Holidays should be specified so that there is no question as to the times for the beginning and conclusion of those holiday periods. While most parties tend to alternate holidays, it is also possible for the parties to divide holidays such that each parent continues to have the children on specific holidays rather than alternating them from year-to-year.

Children's birthdays and the parents’ birthdays are optional provisions in a shared parenting plan. Some parents do not necessarily feel a need to share their own birthdays with their children, while others prefer to have such a provision included. Most parents typically will include some provision relating to the manner in which each child's birthday shall be celebrated by each parent. This can range from a provision allowing each parent access to each child on the child’s birthday, or they can alternate the years that each parent has the child on the child’s birthday.

Under current Ohio family law, reasonable "companionship and visitation" rights may be awarded to grandparents, other relatives, or other persons on motion by the person seeking such rights, provided that the court finds that that person has an interest in the welfare of the child and that granting such rights would be in the best interest of the child. In such a case, the court is required to consider "the wishes and concerns of the child's parents, as expressed by them to the court."

 

POST-DECREE MODIFICATION OF CUSTODY BETWEEN PARENTS
Under Ohio Law, a Domestic Relations Court retains jurisdiction to allocate parental rights and responsibilities until the minor children of the terminated marriage reach the age of majority (18 years old).  This means that the Court can revisit the issue of custody at any time until the child reaches the age of majority. 


When there has already been a Divorce Decree issued by the Domestic Relations Court which initially allocated the parental rights and responsibilities, any modification of the parental rights and responsibilities (i.e. Custody), must be brought by a motion requesting a change.
The parent that wants to change or modify custody must file this motion with the same Court requesting that it modify its initial decree, citing the reasons that he or she believes the earlier decision should be reconsidered.  In the meantime, the original decree will continue to govern the parties’ rights and responsibilities.


Standard for Post-Decree Modification
The Domestic Relations Court is guided by 3109.04(E) when there is a motion filed to modify the original allocation of parental rights and responsibilities. The legal standard is one that presumes to keep the status quo, maintaining the original residential parent.  Courts do not want to see a tug-of-war between the parents as they file motion after motion.  Sometimes it seems like a never ending battle with the children stuck in the middle as the parents continue to drag each other into court.  For this reason, it is harder to gain custody of a child after the other parent has been awarded the status as residential parent.


However, when it is appropriate, the Court will modify its earlier custody determination.  In order to satisfy the legal standard warranting a modification, the party filing the motion must demonstrate the following:  

  • There has been a change in circumstances since the prior decree or there were facts unknown to the court at the time of the initial decree; only if the court finds that there has been a change in circumstances will it continue to the next step

  • This change in circumstances is jurisdictional in nature and absent this finding, a court cannot proceed to modify the prior decree based upon its finding that the best interest of the child warrants a modification

  • Note: this same change in circumstances language appears in 2151.42 dealing with dependency docket / CSB cases when legal custody to a non-relative is given and the parent wishes to modify that and have child returned home.

  • Whether it would be in the Best Interest of the Child to modify the decree, AND

    When determining Best Interest, the Court is again guided by the 10 factors listed, just as it is in the original allocation when determining Best Interest

  • Whether the harm to the child caused by a change in environment is outweighed by the benefits of modifying the prior allocation of custody

  • Or the residential parent happen to agree to the change of residential parent (unlikely)

  • Or the child, with the consent of the residential parent, has been integrated into the family of the parent wishing to become the residential parent through modification 

As can be seen from the above standard, once a decree has established one of the parents as the residential parent, the parties are no longer on equal footing; the party filing the motion must not only prove that awarding them custody is in the child’s best interests, but that there has been some change since the earlier decree as well.  While Courts have said that the change in circumstances doesn’t necessarily have to be “substantial”, it does have to be of a substantive in nature and not something trivial. It is advisable to speak with a family lawyer regarding the sort of circumstances that would warrant filing a motion.

 

 

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