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Current Issues in Family Law
In Ohio a shared parenting plan is governed by statute, R.C. Section 3109.04. This applies to both married and unmarried parents. The statute does not favor either parent but makes a determination based on what is in the best interest of the children. By law, the Shared Parenting Plan (SPP), must specify the visitation and holiday schedule, address religious upbringing, schools and child support. Parents are often required to include a clause that the parties must attend mediation prior to filing in court to modify the terms of the agreement.
A good shared parenting plan will attempt to address issues that parents will face as the changing needs of the children. It can be hard to know what the needs will be, but the Plan should recognize that the child is going to want to spend less time with parents and more with their peer group. Often it is best to see your parenting time not as the time you spend with your child, but rather, the time you are responsible for your child, including transportation to and from school, extracurricular activities and ensuring the child is completing their schoolwork.
Shared Parenting allows both parents to have an equal say in decision making. However, this can be difficult if parents are unable to communicate effectively and there is a high level of conflict. In the past, Courts were reluctant to award shared parenting when the couples could not co-parent, but there has been a recent trend to allow parents to Parallel Parent. Parallel parenting is an arrangement in which parents can co-parent by means of disengaging from each other and having limited direct contact. Though to point out, it’s really not co-parenting.
Parallel Parenting often means that each parent is responsible for certain decisions since the parents have shown they cannot work together to come up with a decision and to force the parents to try and work together can have a detrimental on the child. For example, one parent may be permitted to make all medical decisions, while the other parent makes all educational decisions. The benefit is that decisions can be made in a more timely matter and reduces unnecessary conflict.
In a Shared Parenting Plan, both parties have equal access to information regarding the child. However, some parents also equate Shared Parenting to equal time. This is not necessary the case, and may not be reasonable depending on where parents live in relationship to school and the parents work schedule.
What happens if you want to change the terms of the agreement. Most likely you will first need to attend mediation to see if the parents can workout their disagreement. This is always the best solution, as parents will remain some control and are in the best position to know what is in their children’s best interest. If the parents cannot work out an agreement, then the parent asking to modify the Shared Parenting agreement will need to show the court there has been a change of circumstances before proceeding on the Motion to Modify. Once the Court has found there has been a change of circumstance, the Court will move to determine the best interest of the children. However, if a parent is asking to terminate the Shared Parenting Agreement, a finding of change of circumstance is not required and the court will make a decision based only on the best interest of the children. This was recently clarified by the Ohio Supreme Court in October 2020.
Do you need an attorney? Probably not for Mediation, but once the matter is before the Court, parties should consider legal representation.
NTo continue the discussion regarding custody and unmarried parents, often, there is a misconception that in Ohio, Mothers have superior rights over Father’s when it comes to Custody and Visitation. Mothers have sole custody until a Court determines otherwise. However, once a Father has established paternity and filed for Custody and/or parenting time, the Court does not favor one parent over another, but makes a decision based purely on the best interest of the child.
If Father files an action in Juvenile Court for visitation or Custody, Father still has no rights until there is a Court order giving him some right, even if a Father is paying child support. Child support establishes paternity, but no other rights beyond that.
This can make it appear that Mothers have superior rights, but not the case once in court. Although a Mother does not have to allow visitation until ordered by the Court, an unreasonable denial of visitation could be used against the Mother. I have seen Mothers who have refused “reasonable” visitation lose custody if there was not a real safety concern, not just a difference in parenting styles or other personal issues between parents. Even domestic violence between the parents does not necessarily mean that a Court will limit Father’s contact with the child.
The Court will make a determination based on what is the best interest of the child. The Court cannot consider who makes more money or has a nicer home. The Court will look at the bond parents and siblings. If a Father had not seen a child for most of the child’s life, that will be considered, but the court will want to know, why wasn’t father active in the child’s life. If Mother was the reason, this could be used against Mother. If Father just started paying child support and is trying to avoid that, the court will consider that as well. On the same note, if a parent is in arrears with child support, that is a factor, though rarely in regards to visits but as to Custody.
If a parent is asking to modify a prior award of custody, the party asking for custody will need to show a change of circumstance. This is because once the court has made a decision, it is meant to be permanent in nature and should not be disturbed unless a change of circumstance showing that it is no longer in the best interest to maintain the current custody arrangement. This change of circumstance is not a change that the non-custodial parent has made. Meaning, it doesn’t matter if the non-custodial parent has turned their life around.
Do parents need an attorney in custody matters? It depends. If the parties can work it out, and are willing to mediate, than they can probably resolve the matter without an attorney. However, if the matter is going to trial, legal representation would be advisable. Most pro se litigants struggle with how to get evidence before the court. This is governed by the Rules of Evidence, Local Rules of the Court, and applicable statute. The Magistrate or Judge is not going to want a parade of friends and family testifying as to the character of the parties, but will only want to hear from witnesses who have first handle knowledge about the issues before the court. Professional witnesses who are unbiased and neutral will have more value than friends and family. What the Magistrate is looking for is clear and convincing evidence of what is in the best interest off the children.
You get one chance at a trial. You don’t like the Decision, you can object and/or appeal, but you will not have an opportunity to get in new evidence or redo the trail. The higher Court is only looking at the transcripts and evidence that was admitted to make their determination on whether to uphold the decision or not. This can also add additional expense, as the objecting party will need to pay for transcripts of the proceedings.
And at the end of the day, unless there is clear and convincing evidence that there is a safety risk, the Court often falls back on the Local Courts Standard Order of Parenting Time. In Hamilton County that is every other weekend and one day during the week for the nonresidential parent, alternating holidays and extended parenting time between two and four weeks.
When it comes down to it, unless evidence is presented to the contrary, it is in the best interest of children to have both parents active in their life.
What happens when parents are not married when a child is born. Many parents are uncertain regarding custody and visitation rights.
Some Mother’s are not aware that even if Father is on the birth certificate, Father has no rights, but does have the obligation to pay child support. Meaning Father doesn’t have any visitation or decision making rights, unless he seeks it from the Juvenile Court. However, a Court could use a Mother’s refusal to allow “reasonable visitation” against Mother in a legal proceeding, if there is no basis for denying visit.
To seek Custody and Visitation, a Father needs to file a Petition in Juvenile Court. Usually this is done in the County that the child is living, or the county of an existing child support order. When Father files for Custody, he can seek either Shared Parenting or Sole Custody, or he can ask for visitation only. You do not need an attorney to file the Petition, however, you will need an address to serve Mother with the Petition.
What to Expect in Court
Once the Petition for Custody or Visitation filed, the court will set an initial pretrial conference to serve necessary parties, and to allow parties and their attorneys to attend. The Court will determine if the necessary parties have been served, whether paternity has been established, and to address temporary orders of visitation. Depending on the situation, and if there are safety concerns, the Court may order a custody investigation through the Court, which both parties will be required to participate in. If it appears the parties may be able to work out an agreement, the Court may order the parties to participate in mediation.
The parties may also ask the Court to appoint a Guardian Ad Litem (GAL) for the child(ren). The Court will order the requesting parent to pay a deposit to the Court for the GAL, but the cost of the GAL usually exceed the deposit. The GAL is appointed to make a recommendation to the Court of what is in the best interest of the children.
If the parties cannot work out an agreement, the matter will be set for a trial. It could be six months before the parties get to this stage. At this stage, legal representation is encouraged. Rules of Evidence often prevent an unrepresented parent from being able to get the appropriate information before the Court. The Court is looking for what is in the best interest of the child, but most often, the Court wants both parents to be actively engaged in the child’s life. Often the Court will default to a standard parenting order if the parents cannot work out an appropriate schedule. This will not only include regular visitation, but holidays and extended parenting time during school breaks and holidays.
At the end of the day, it is always better for the parents to attempt to work out an agreement instead of allowing the Court to impose their own agreement on the parties.
As recently reported by National Coalition for a Civil Right to Counsel.
The Supreme Court of Ohio ruled in a 5-2 decision (with one of the 5 concurring in the judgment only) that indigent parents have a right to counsel in involuntary adoption cases under the Equal Protection Clauses of the federal and state constitutions. The case is In re Y.E.F., 2020 Ohio LEXIS 2819 (Ohio 2020).
Before ruling on the right to counsel, the Court held that the matter was subject to interlocutory appeal (in the case, the parent appealed the denial of counsel before the case was over). In Ohio, it is appealable in that way if the order “affects a substantial right in a special proceeding”, and the Court held that adoptions are a special proceeding and the right to counsel involves a substantial right (especially given the parent’s total inability to litigate without counsel), plus the parental rights underlying the right to counsel are fundamental. It also noted that prior cases involving denial of permission to use out-of-state counsel or disqualifying counsel had been held to be immediately appealable.
The Court then turned to the merits. Noting that the Court of Appeals had held that private adoptions do not involve state action, it held that the state’s decision to provide counsel for termination cases but not adoptions was itself a state action. It also cited to the SCOTUS decision in M.L.B. v. S.L.J., which held in a footnote that adoptions involve state action because only the state can authorize them. The Court then addressed the Court of Appeals’ contention that termination of parental rights proceedings are somehow different from adoption proceedings such that the parents in each situation are not similarly situated, responding that parents in both situations face permanent severance of their parental rights. The Court then concluded that the state had offered no compelling justification to treat the parents differently, rejecting the AG’s argument that rational basis analysis should apply as well as the argument about “responsible management of taxpayer funds”. The Court added that ensuring an accurate decision furthered the state’s interest because it ensures the best interests of the child are met.
The NCCRC assisted with the strategic planning and briefing.
Kimberly Thomas, Family Law Attorney.