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Current Issues in Family Law
Domestic Violence does not automatically foreclose a parent from visitation, custody or shared parenting. The Court must still assess what is in the best interest of a child weighing safety issues with the rights of parents and a child regarding the parent child relationship.
A parent making false allegations regarding domestic violence could also hinder a custody case, and could result in the loss of custody and/or visitation.
When there is domestic violence, the Juvenile Court has limited resources regarding supervised visits, and rarely is supervised visitation or the termination of visitation a final order of the Court. In Hamilton County, the Court can refer a parent to the Children's Home for up to six visits of supervision. The Court will be provided notes of the visits and can use that as part of their basis of their decision regarding visits. The cost of is $200 an hour, but depending on the parents income, parents could qualify for a scholarship. Often when supervised visits is requested, the requesting parent will need to supervise or find a third party willing to do the supervision. This may not be viable long term option.
However, the First District Court of Appeals recently ruled that in limited circumstances, the Court could terminate visitation. The Court stated that "a noncustodial parent’s right of visitation with his or her children is a natural right and should be denied only under extraordinary circumstances. Extraordinary circumstances include unfitness of the noncustodial parent or a showing that visitation with the child would cause harm. Guliano v. Guliano, 11th Dist. Trumbull No. 2010-T-0031, 2011-Ohio-6853, ¶ 54. “If there is clear and convincing evidence that visitation presents a significant risk of serious emotional or physical harm to the child, or a showing of some justification for preventing visitation, the court may deny visitation.” Linde v. Linde, 1st Dist. Hamilton No. C-940944, 1996 WL 97563, *5 (Mar. 6, 1996)." Crystal Baker v. Anthony Edwards C190686.
When deciding custody and visitation issues when there is domestic violence, the Court will make a determination of what is in the best interest of the child. The Ohio Supreme Court has provided guidance on what the Court should be considering.
The Ohio Supreme Court has approved a new rule that provides guidelines and standards for courts and mental health professionals who evaluate child custody cases.
Effective Sept. 1, 2022, Rule 91 in the Rules of Superintendence for Ohio establishes requirements for custody evaluators, while providing accountability and uniformity of practice necessary to safeguard the well-being of children and families within the state’s 88 counties.
A custody evaluator is an objective, impartial, qualified mental health professional appointed by the court to perform a child custody evaluation.
Prior to its approval, there had been no statute or statewide court rules to specifically govern the specialty practice of child custody evaluation.
Specifics of Rule 91 address how custody evaluations should be conducted and what is to be expected of an evaluator.
The standardization of these experts includes necessities, such as education and licensure requirements, initial training and continuing education, evaluation components, and evaluator responsibilities and ethical considerations.
From a court perspective, the rule creates judicial system requirements including how evaluators are appointed.
To ensure accountability and transparency, a complaint and removal process must be created by the local court as well as provisions regarding custody evaluation reports and the ability to access them.
Kinship Care Versus Foster Care
Differences in requirements for Kinship Vs. Foster Care
Kinship caregivers are able to apply to become foster parents and complete the homestudy process.
Kinship Foster Care
Kinship caregivers undergo a “home assessment” and “approval” process. Foster parents undergo a more detailed “homestudy” and “licensure” process.
As part of the home assessment process, at least one home visit is conducted prior to approval – basic safety issues are checked and the kinship caregiver’s willingness and ability to care for the child are explored. As part of the foster care licensure process, the following requirements are completed:
There are no training requirements for kinship caregivers. Kinship Caregivers are able to attend trainings after the approval process, if they want to learn more about caring for the special needs of their kin child. Foster caregivers are required to complete 36 hours of preservice training prior to licensure. They are required to complete 40-60 hours every two years to maintain their license, depending on the type of license they hold.
It can take 30 days or more for the completion of the approval process. In emergency situations children can be placed with a relative quickly prior to the official approval process as long as there are no safely concerns. The foster care licensure process generally takes 3-6 months depending on agency workload and training schedules.
The kinship caregiver may need to pay for required Ohio BCI and FBI background checks (about $50 total) – otherwise, there are no costs for being assessed and approved as a kinship caregiver Applicants are sometimes required to pay for their BCI and FBI background checks, fire inspection, well water test, and the amount their doctor requires (if any) to complete the medical statement for all household members.
Kinship caregivers may be eligible for Ohio Works First “child-only” monthly benefits for the child. Child-only benefits are approximately $300 a month for the first child and reduced amounts for each additional child. EG. 1 child is $297, 2 children is $406, 3 children is $497, etc. Foster parents receive a daily per diem rate for each foster child placed in the home. Daily rates vary by county and agency based on the age and special needs of the child.
Children who are in the custody of a PCSA and placed in a kinship home receive Medicaid. Children who receive OWF child-only benefits are also eligible for Medicaid. Children who are in the custody of a PCSA and placed in licensed foster homes receive Medicaid.
A kinship home is assessed and approved for a specific child. If a kinship caregiver is approved for one child, and another child is placed at a later date, the PCSA is required to complete another home assessment that takes the new child into consideration. Foster parents receive a license to accept placement of a range of children. After the initial licensure of a foster parent, the licensing agency is required to recertify the home every two years and complete amendments whenever there is a significant change, such as a relocation or new household member.
Each Ohio county has a child protective services agency that addresses allegations of child abuse, neglect and dependency. These agencies are charged with investigating the allegations and determining their veracity.
What rights do I have if a caseworker comes to my home?
Unless the caseworker has a court order, you do not have to allow the caseworker into your house, permit her to talk to your children, sign releases for any of your personal information or consent to any evaluations or tests. You also have a right to have an attorney present when you talk to a caseworker.
What happens if, based on the caseworker’s visit, the agency decides that my children are being neglected or abused?
In such a case, the agency may either ask you to work a voluntary case plan, or may file a complaint for a shelter care hearing in juvenile court asking the state to intervene on behalf of your children.
What happens if a complaint is filed against me?
A hearing must be held within 72 hours after a complaint is filed. This first hearing is a called a shelter care hearing. At this hearing, the agency must prove to the court that your children should not be returned home. A Motion for Removal from Shelter Care may be filed in response. A party to the case, including a parent, legal custodian, guardian ad litem, agency or prosecutor can request a removal from shelter care hearing if (1) the child was removed from the care of a parent or legal custodian and put into placement in foster care or with a relative or other individual, AND (2) either of the following occurred: (a) they were not served or given notice of that initial Shelter Care hearing, or (2) there is a change in the situation of the child or the parent/legal custodian that would give rise to a request for the parent or legal custodian to request the child be released from shelter care and returned to them or a parent or legal custodian.
If your children are found to be abused, neglected or dependent, the court will schedule a dispositional hearing where a case plan will be adopted and the temporary placement of your children will be determined.
Bringing your disputes before a mediator can offer several benefits for divorcing couples. In mediation, divorcing couples may resolve any issues they would otherwise litigate, including property division, shared parenting arrangements, parenting schedules and more.
Traditional Hallmarks of Mediation are: voluntary participation, self-determination, full disclosure, and informed decision-making.
Lowering conflict levels
Mediation takes place in a low-key setting where the mediator facilitates constructive discussion and keeps the focus on achieving resolution. This can help communication between soon-to-be exes who may feel overwhelmed with negative emotion. In contrast to courtroom litigation, which for many people tends to escalate the conflict level, mediation can help the parties compromise.
Another benefit is the relatively low cost of this process, especially compared to a full-scale courtroom battle. Some Courts offer mediation and may be eligible low-income parties may qualify for sliding fee or no-cost services.
Agreement binding with court approval
Once the parties reach an agreement, their attorneys review it and present it to the court. The agreement becomes binding once the judge approves it. After that point, a party wanting to change any provision will have to formally petition the court. At any point before court approval, the parties can choose to stop mediation and go back to court.
Mediation when there is Domestic or Intimate Partner Violence (IPV)
Usually there is a screening to identify IPV and whether mediation is appropriate. When IPV has occurred, a party might be unable or unwilling to adhere to ground rules, respect the needs and interests of the other party, fully disclose relevant information, explore options, share decision-making, and commit to honoring agreements.
The decisions of the parties should be the product of their own separate deliberation and judgment. When IPV is an issue, one or both parties might be subject to undue pressure, duress, threats, manipulation, or intimidation.
Learn more by speaking with your attorney
Your attorney can and should advise you throughout the mediation process. The mediator may not provide legal advice, so you need your lawyer to discuss the potential ramifications of any decisions you contemplate.
Domestic Violence and High Conflict Cases pose additional challenges for Courts when making a determination regarding custody and visitation.
The Courts do not favor one parent over another and Domestic Violence between parents does not necessarily foreclose a parent from obtaining custody or shared parenting. The Courts will be focused on the Best Interest of the Children, based on R.C. 3109.04, which will include addressing safety issues. The Ohio Supreme Court addressed these issues in Domestic Violence & Allocation of Parental Rights and Responsibilities.
Even if the domestic violence only occurs between parents, children are negatively impacted. Witnessing domestic violence can lead children to develop an array of age-dependent negative effects. Research in this area has focused on the cognitive, behavioral, and emotional effects of domestic violence. Children who witness violence in the home and children who are abused may display many similar psychologic effects. These children are at greater risk for internalized behaviors such as anxiety and depression, and for externalized behaviors such as fighting, bullying, lying, or cheating. They also are more disobedient at home and at school, and are more likely to have social competence problems, such as poor school performance and difficulty in relationships with others. Child witnesses display inappropriate attitudes about violence as a means of resolving conflict and indicate a greater willingness to use violence themselves.
The Courts recognize the importance of having both parents involved in their children’s upbringing, but it still must be found to be in the Children’s Best Interest. Traditionally, the Court would not grant Shared Parenting in High Conflict cases, but the trend has been to try and reduce the conflict between parents and not reduce parent involvement.
In some cases, when parents seem unable or unwilling to co-parent, the Court will attempt to limit the parents contact to reduce conflict between the parents. In an effort to do that, one option has been to utilize parallel parenting. Parallel parenting is a technique in which divorced parents who wish to avoid contact do so by limiting their interactions. This solution works for high-conflict divorces, where parents may need some time to cool down before making amends or seeing and speaking to each other on a regular basis.
This parenting style allows both parents to be involved in their child’s life without having to be involved in their ex-spouse’s life. Parallel parenting can be a way to let the dust settle before transitioning to a more interactive parenting style that allows for cooperation and communication. However, for some couples co-parenting isn’t and won’t ever be an option.
Parallel Parenting can be effective utilizations supports such as:
Kimberly Thomas, Family Law Attorney.