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Current Issues in Family Law
’50/50′ custody bill gets big changes in committee as ‘compromise’ with bill critics
by Susan Tebben, Ohio Capital Journal
After receiving criticism from legal organizations including the Ohio Judicial Conference, a bill to change custody agreements in the state went through some changes in legislative committee this week.
House Bill 14, sponsored by Republican state Reps. Rodney Creech and Marilyn John, originally set out to establish a 50/50 parental custody agreement as the standard in Ohio “to the greatest degree possible.”
With that standard in place, the bill would require a parent who objected to the “equal decision-making rights and responsibility or equal parenting time” to “bear the burden of proof” as to why 50/50 custody would be “detrimental to the children,” according to the bill’s language.
An analysis of the bill by the Legislative Service Commission says the court deciding if a parental agreement shouldn’t include equal custody is required “to consider whether a parent has intentionally misled the court, made false allegations of the other parent harming the child, or communicated false information to gain a tactical advantage.”
A stated goal of the bill, according to the analysis, is assuring children have “frequent associations and a continuing relationship with” both parents after separation, divorce or annulment, “or in situations in which the mother is unmarried.”
After the bill was introduced in March, various “parents organizations,” both in and out of the state of Ohio, testified in support of the bill.
Among the supporters was Arkansas attorney Brian Vandiver, who said he was a part of Arkansas Advocates for Parental Equality, which worked on a similar bill in that state which passed in 2021. Vandiver supported the inclusion of a higher evidence standard in the bill, one that requires “clear and convincing” evidence of the need for an agreement other than 50/50 custody.
“The higher burden of proof is appropriate to protect the fundamental rights of children and parents,” Vandiver told the Ohio House Families and Aging Committee in March.
But among those opposing the bill were domestic violence advocates and legal coalitions throughout Ohio. This included Paul Pfeifer, former Ohio Supreme Court justice and executive director of the Ohio Judicial Conference, who called the bill “a hot mess,” and the idea of 50-50 custody “unnatural.”
Nicole Rutter-Hirth, representing the Ohio Bar Association, also criticized the bill, saying it “sounds well-intentioned but could have destructive consequences.”
“Mandating equal time and equal rights may place a child in equal care of a parent with a drug or alcohol addiction or mental health issues,” Rutter-Hirth told the committee. “It may force a victim of domestic violence to co-parent with their abuser.”
Since the bill was introduced, the bill’s sponsors have been working to make the bill more acceptable to the bar association and others, according to state Rep. Monica Robb Blasdel, R-Columbiana County, who presented the changes to the bill in Tuesday’s committee meeting.
“(The sponsors) believe that this is a good bill that addresses the concerns previously brought up in committee,” Robb Blasdel said.
The changes, which were approved as part of a substitute bill, remove that “clear and convincing” evidentiary standard to a “preponderance,” the minimum standard allowed in court cases.
The substitute bill also requires a court to “ask each parent if they wish to enter a shared parenting agreement and to put findings in writing if the court’s rule otherwise,” Robb Blasdel explained.
The court can also consider other factors in parenting agreements, and “equal parenting time and rights” has been changed to “substantially equal in time and decision-making rights” in the new bill language.
The bill will now be up for further public comment at committee hearings.
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Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: email@example.com. Follow Ohio Capital Journal on Facebook and Twitter.
“Equal Parenting” Legislation. Meanwhile, the Ohio House Families and Aging Committee this week accepted a substitute bill on House Bill 14, the so-called “equal parenting” bill, which the Ohio Bar has strongly opposed on the principled grounds that the best interests of the child should always be paramount in custody cases. Though many changes were made in the substitute bill that the sponsors say were designed to allay our concerns and those of the bill’s 80+ opponents (among them the Ohio Judicial Conference, Ohio Domestic Violence Network and the Ohio Association of Juvenile Court Judges), we remain opposed. Among the changes is a shift in the evidentiary standard for rebutting the bill’s presumption of shared parenting from “clear and convincing” to “a preponderance of the evidence.” Though this provision is better than the as-introduced version, we maintain that the overall dramatic shift in the legal framework in child custody cases this bill prescribes would not be in the best interests of Ohio, our court system and most importantly, the families they serve. You can view all the changes to HB14 and see where the bill currently stands via this comparison document prepared by the Legislative Service Commission.
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OPINION Best interests of child should rule in custody arrangements
Kathleen C. King
Published January 13, 2022
In a Jan. 9 op-ed, Teresa Harlow recently suggested that Ohio law encourages unfair custody arrangements because the starting place is not a 50-50 division between the parents ("Ohio law encourages lopsided, unfair custody arrangements"). The fairness, however, should belong primarily to the child.
Children remain in the formative years of development and did not decide to be born, belong to this family, or to get a divorce. Ohio law focuses on the best interests of the child. This is where the focus should be.
Both parents usually love their children equally, but parents may have different ways of showing that love. Some are better at earning money so that the child has the advantage of living well enough. Others are stronger with interacting more directly with the child.
I was a magistrate in Hamilton County Domestic Relations Court for nearly 29 years. The Ohio Judicial College and the Cincinnati Bar Association provided seminars involving the developmental stages of children and other visitation issues. Many years ago, the court formed a committee to develop a starting place for parenting time depending on the age of the child. The schedule was only a starting place because parents have different work schedules and capabilities, and all children are not the same.
Babies need a very definite primary caretaker. Shuffling them back and forth on an equal basis puts them at risk for separation anxiety and insecurities long into adulthood. Would a 50-50 parenting division work for a child who is disorganized and suffers from ADHD? My experience from the bench says "generally not."
Such children being transferred from one household to another often lose track of clothing, school work and extracurricular activities. A teacher might notice that the child has his homework completed every other week or that the child will wear the same clothing three days in a row every other week. If one of the parents works ungodly hours in order to provide food and shelter or material advantages, that hard-working individual may have to hand the child over to neighbors, babysitters, or grandparents until after the children are in bed. Sometimes they might leave the child unattended.
It is best if the parents can agree on a parenting schedule without court involvement. Conflict resolution specialists like Ms. Harlow can offer the community a tremendous service by helping parents figure out a reasonable parenting time schedule. They may agree that a shared parenting plan works. In the event the parents can't agree, it becomes the court's job to handle the situation.
The Ohio law appropriately requires that both parents be viewed equally before the court as it relates to parental rights and responsibilities. Neither gender is to have an advantage. Ohio statutes also rightly demands the court focus on the child's best interests.
In determining the best interests of the children, the court must consider all relevant factors, including, but not limited to:
I may quarrel with a few of the nuances in Ohio's statutes regarding custody. Basically, though, Ohio has it right. The best interests of the child should rule.
Kathleen C. King was a magistrate in Hamilton County Domestic Relations Court for approximately 29 years and is now of counsel with The Farrish Law Firm.