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Current Issues in Family Law
JFS contacted you that they would like you to agree to a Safety Plan. What should I do?
THERE ARE THREE TYPES OF SAFETY PLANS:
This is implemented on the JFS 01409 CAPMIS Safety Plan.
This is implemented on the JFS 01409 CAPMIS Safety Plan.
Legally Authorized Out-Of-Home:
This child is legally removed from the home and temporary custody is given to the PCSA or relative/kin.
The JFS 01409 Safety Plan is not required to be completed. The court complaint and motions will provide
the justification of how this safety response will immediately protect the child.
Although not the intent, these safety plans could go on for years, with little third party oversite.
The benefits of agreeing to a safety plan is to avoid JFS taking custody of the child/dren. This is a reasonable effort that JFS must attempt prior to filing for custody. However, for JFS to gain custody they would first need to prove that the child would be at risk of harm if JFS did not step in and take custody. If they can't meet the burden, than their motion will be denied.
SHOULD YOU COOPERATE WITH JFS?
It depends on the circumstances. If the allegation involves significant harm to your child yes. However, cooperation is voluntary, but they could argue that your failure to cooperate showed a lack of protective capacity.
If you ask that JFS speak to you only with your attorney present, they will cease any further communication, but they could also choose to seek legal custody.
If JFS has not taken legal action, they will not appoint you an attorney or a Guardian ad Litem for the child.
A SAFETY PLAN IS VOLUNTARY
You can discontinue the safety plan at any time. You may change placement providers or ask that the safety plan be terminated. The agency may or may not file for custody if the determine the risk still exists.
WHAT TO EXPECT ON A SAFETY PLAN
There will be certain rules in place, depending on whether the safety plan is an in or out of home plan. This may require supervision of persons with the children.
They will ask you for names of persons who could be listed on the safety plan. More than one person may be named as safety plan providers.
They may ask you to participate in assessments and follow those recommendations. This is part of a case plan. You should make sure you understand what is expected to terminate the safety plan.
JFS cannot supervise visits, so if supervised visits are required, they will need to be conducted by the safety plan provider or other approved persons.
SHOULD I BE A SAFETY PLAN PROVIDER?
If you choose to be a safety plan provider, make sure you and the parents under stand the rules. Failure to comply with the safety plan could prevent you from continuing as a placement provider if JFS seeks custody.
By filing for divorce, and seeking child custody and spousal support, a parent puts their mental and physical health at issue and the trial court has a statutorily duty to consider them.
On June 18, 2020, the Supreme Court of Ohio handed down a merit decision in Torres Friedenberg v. Friedenberg, 2020-Ohio-3345. In an opinion written by Justice French, joined by Chief Justice O’Connor and Justice Fischer, the Court held that Belinda Torres Friendenberg’s mental health records were properly ordered released subject to a protective order because Belinda’s claims for child custody and spousal support in this divorce action put her mental and physical conditions at issue. Justice Kennedy concurred in judgment only. Justice DeWine wrote a dissent joined by Justices Stewart and Donnelly. The case was argued February 11, 2020.
“The General Assembly has made consideration of the parties’ physical and mental health not only relevant but mandatory in determining both child custody and spousal support.”
Justice French, lead opinion
R.C.3109.04(F)(1) makes consideration of the mental and physical health of the parties mandatory in a custody determination. These are the best interest factors.
F)(1) In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:
(a) The wishes of the child's parents regarding the child's care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest;
(d) The child's adjustment to the child's home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) 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;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
R.C.3105.18(C)(1)(c) does the same in determining spousal support.
“Because the General Assembly has required trial courts to consider the mental and physical health of the parties when determining claims for child custody and spousal support, communications between those parties and their physicians regarding their mental and physical health will often be causally or historically related to the issues in domestic-relations cases in which those claims are raised. That relationship does not depend on whether the party seeking the release of medical information has specifically challenged the patient’s parenting ability or earning potential based on health considerations,” French wrote. When the parties dispute this, that is what the in camera review is for.
By filing for divorce, and seeking child custody and spousal support, a parent puts their mental and physical health at issue and the trial court has a statutorily duty to consider them. This would be relevant to concerns with substance abuse as well.
Kimberly Thomas, Family Law Attorney.