OPINION      Best interests of child should rule in custody arrangements
Kathleen C. King
Opinion contributor
Published January 13, 2022

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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.
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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:

• The wishes of the child's parents regarding the child's care;
• The wishes and concerns of the child, if expressed to the court;
• The child's interaction and interrelationship with parents, siblings, and other persons who could affect the child's best interest;
• The child's adjustment to the child's home, school, and community;
• The mental and physical health of all persons involved in the situation;
• The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
• Whether either parent has failed to make all child support payments, including arrearages;
• Whether either parent or any member of the household of either parent previously acted in an inappropriate manner that could cause negatively affect a child;
• Whether either parent has established a residence, or is planning to establish a residence, outside this state. https://codes.ohio.gov/ohio-revised-code/section-3109.04.

​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.

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. 

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.