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Current Issues in Family Law
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The Ohio Supreme Court is being asked to hear a case regarding the appeal of administrative findings by JFS regarding administrative dispositional findings.
This appeal presents a question of first impression to this Honorable Court, namely whether the rule established in Pryor v. Director of Ohio Department of Job & Family Services, 148 Ohio St. 3d 1, 2016-Ohio-2908, that an administrative Agency must strictly comply with the procedural requirements governing issuance of its decision before the time for appeal runs, is satisfied where the Agency decision states: Pursuant to the Ohio Administrative Code Section 5101:2-33-20(H), the decision of the PCSA [Public Children’s Services Agency] regarding the report disposition appeal is final and not subject to state hearing review under sections 5101 .35 of the Revised. Code nor subject to judicial review pursuant to the authority cited above. And the appellant is told by the Agency and its counsel that: “It is clear that O.A.C. §5101:2-33-20 prohibits appellant from seeking review of this decision by way of administrative appeal.” See p. 5 of Appellees November 20, 2020 Brief in Alexis Bogan v. Mahoning County Children Services, Case No. 2020-cv-406. The regulatory framework cited above relates to decisions of Ohio county Departments of Children’s Services (hereinafter “Children’s Services”) in connection with resolution of allegations of physical abuse of a child. The reason this is a case of great general interest is because the current appeal notification given 4 under O.A.C. 5101 et. seq. is misleading and does not provide appropriate notice of appellate rights. The history of this action is proof.
Here, the Agency gave express misinformation to Appellant that an administrative appeal of the Agency decision was prohibited and unavailable. The appellate Court’s decision that this appeal is time-barred, ignored the fact that the Agency misled Ms. Bogan concerning her appellate rights and has yet to comply with Ohio law concerning Ms. Bogan’s right to appeal. In this connection, the Ohio Supreme Court has stated in relation to administrative appeals in Pryor v. Dir. Ohio Dept. of Job and Family Services, 148 Ohio St. 3d 2016-Ohio-2907the following: When a statute confers a right to appeal, the appeal can be perfected only in the mode the statute prescribes. Zier v. Bur. of Unemp. Comp., 151 Ohio St. 123, 84 N.E.2d 746 (1949), paragraph one of the syllabus. Compliance with the specific and mandatory requirements governing the filing of a notice of appeal "is essential to invoke jurisdiction of the Court of Common Pleas." Id. at paragraph two of the syllabus. Id. The Pryor Court also stated: We have consistently held that an administrative agency must strictly comply with the procedural requirements governing the issuance of its decision before the time for appeal begins to run. In Proctor v. Giles, 61 Ohio St.2d 211, 400 N.E.2d 393 (1980), we held that compliance by the Unemployment Compensation Board of Review with the procedural requirements of former R.C. 4141.28(0) was a necessary 10 precondition to the running of the 30-day period to appeal. In Sun Refining & Marketing Co. v. Brennan, 31 Ohio St.3d 306, 511 N.E.2d 112 (1987), we concluded that an agency must comply with the procedural requirements in R.C. 119.09 before the 15-day appeal period begins to run. Id. At 308-309, citing Proctor. Id. Here the Agency not only failed to comply with the procedural requirements governing appeal, at no time did the Agency ever advise Ms. Bogan that contrary to the Agency’s statement in its decision concerning judicial review, Ms. Bogan had a right to appeal under R.C. 2506.01, et seq. The Ohio Supreme Court has stated an Agency must strictly comply with the procedural requirements governing issuance of its decision before the time for appeal begins to run. Under this rule, the time for Ms. Bogan’s appeal still has not begun to run because not only did the Agency fail to comply by not advising Ms. Bogan of her appellate rights, the Agency here did just the opposite. The Agency told Ms. Bogan, she had no right to appeal. In this case Ms. Bogan’s right to Due Process of Law has been gravely injured. First, due to privacy issues, Ms. Bogan was denied all medical records related to the qlleged injuries, she was permanently barred from employment with children and told she had no appellate rights.
Recently the Ohio Revised Code was Revised to allow children to remain in their foster homes instead of with Kinship placement, that could be strangers to the children. This could ultimately give foster parents more rights involving dependency cases.
Title 21 | Courts-Probate-Juvenile
Chapter 2151 | Juvenile Court
Ohio Rev Code § 2151.4118 (2020)Effective: September 30, 2021
A court may issue an order that determines, with respect to a child described in section 2151.4116 of the Revised Code who is not receiving care in the home of a kinship caregiver, that the continuation of the child's current placement is in the child's best interest and that intensive efforts to identify and engage an appropriate and willing kinship caregiver for the child are unnecessary if the court makes the findings in section 2151.4119 of the Revised Code.
Last updated August 6, 2021 at 2:51 PM
Section 2151.4119 | Findings supporting court determination.
A court may issue an order under section 2151.4118 of the Revised Code if it finds all of the following:
(A) The child has been living in a stable home environment with the child's current caregivers for the past twelve consecutive months.
(B) The current caregivers have expressed interest in providing permanency for the child.
(C) The removal of the child from the current caregivers would be detrimental to the child's emotional well-being.
Last updated September 15, 2021 at 6:12 PM
Legislative text: https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_134/bills/hb289/IN/00/hb289_00_IN?format=pdf
What does this mean if your child is in foster care? That if they are in a foster placement
Are You Really Ready for Divorce? The 8 Questions You Need to Ask
by Bruce Derman, Wendy Gregson
Supporting Effective Agreement
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Your marriage is in question and you're facing a real dilemma. You may be the one who is deciding should you stay or should you go.
"I feel like I need to get a divorce and end this so called marriage. Yet how can I be sure? Some days I feel more confident of my decision than others. A part of me still loves him or at least I care for him. I don't think I am in love with him, but what if I make a mistake. A lot of people will be affected by what I decide. Maybe I should not rush ahead with this. That's amusing since I have been thinking about it for three years. This whole thing wouldn't even be an issue and I could forget about this divorce, if he would just change his behavior."
Or you may be the one who has just heard that your spouse wants a divorce.
"Divorce? Where did that come from? Two weeks ago we were talking about a vacation in the mountains. I had no idea our marriage was this awful? I am shocked and devastated. I have got to find a way to put a stop to this. Maybe this is all a dream and when I wake up things will be back to normal."
Most books and articles on divorce are written based on the assumption that once a couple says they want a divorce that they are ready for divorce. It is our experience as therapists and divorce coaches, who have helped many people through this process that this is in fact not the case. Usually when couples begin the divorce process, either one but more often than not, both, are not really ready for the divorce.
Divorce professionals such as therapists, mediators and attorneys often believe that statements such as, "I've had it with him." or "My feelings have died for her," are indicators that the marriage is over. Attorney's often equate being hired for their services as an indicator that the couple is ready to divorce. This is not so.
Most couples who begin a divorce are unprepared and are often not even on the same page when they begin. It is this lack of preparedness and readiness for a divorce that either causes marriages to end prematurely or divorces to deteriorate into competitive contests. The decision to obtain a divorce is one of the most crucial decisions a person can make with consequences that last for years or a lifetime. A decision this important requires much greater attention than it is usually given by both couples and professionals. It is a process in and of itself. Once a couple is prepared and ready, they will sooner be able to begin their divorce by both being on the same page and this will eliminate most of the emotional and financial struggles that cause divorces to become adversarial and ruthless.
The reason many people do not even think about getting ready for a divorce is because they operate under the assumption that the sooner you can get out of a stressful situation the better. So there is a natural tendency for people who are in difficult marriages to want to get the divorce over with as quickly as possible in order to move on with their lives. Family and friends often encourage this as well. They hurt for the family and so also prescribe to the myth that the quicker the divorce is over, the sooner everything will return to normal. But unfortunately in most cases just the opposite happens. Couples who make rushed decisions to leave the marriage have had no time to evaluate their feelings, thoughts or options. As a result they are unprepared for the roller coaster of emotions, the complicated legal system and the many life changing decisions that they need to make. Quite often they make agreements which they cannot sustain, and instead of the situation getting better, they often find that they have just traded one set of problems for another. So it is no wonder that they often get tangled up in lengthy court cases and the very thing they hoped for, a quick divorce, often takes years.
This article outlines what couples need to do in order to face the numerous dilemmas that are inherent in divorce. A dilemma implies that you are torn between two choices, each of which have undesirable fearful elements. If people have not resolved their dilemmas before the divorce, they go through the process trying to manage their fear in different ways by hiding their doubt, responsibility; vulnerability, or dependency.
Whether a couple is starting the divorce process or even just contemplating a divorce, they need to first identify with the following divorce dilemmas.
The Three Divorce Dilemmas
Couples who are facing the possibility of a divorce face one of three dilemmas:
1. I want the divorce, but I am not sure if it is the right decision. Since going through a divorce impacts the lives of your children, as well as your lifestyle, economics, and marital investment, the pressure to make the "perfectly correct" decision is enormous. Unfortunately, there are no guarantees. The best case scenario is to make a decision that is not emotionally based, nor driven by your ego.
2. I do not want the divorce, my spouse does. Being in this reactive place will leave you feeling out of control and a helpless victim. You will experience intense emotional devastation, as your life will be changing before your eyes without you having any say in the outcome. In addressing this dilemma you need to ask yourself if you are clinging to staying on familiar, safe ground and to a marriage based on illusions. It is not easy to acknowledge and confront the problems in a marriage, when you are feeling so hurt by your partner.
3. I only want this divorce because my marriage is not working. If this is your dilemma, then you will want to avoid responsibility at all costs by seeing your partner to blame for the demise of the marriage. There will be tremendous preoccupation and anger about how your partner caused you to make this decision. The amount of noise generated from this blaming will be in direct proportion to your unwillingness to risk expressing any of your own fears and sadness. If this doesn't occur, the divorce proceedings to follow will be riddled with tension and conflict, and a continuation of the blaming.
The common element in all three dilemmas is fear. In the first group there is a fear of making a mistake and being incorrect, the second will hide from it by denying that there are any problems or admitting their attachment to the familiar and the third group will fear any accountability and softness. The result in all three circumstances will be dragging, combative, and back and forth divorces.
For divorce to be a collaborative and respectful process, the couple must be prepared and ready to separate their lives on all levels; legally, practically and emotionally. To do this each person must face their divorce dilemma by answering the following 8 questions.
The 8 Questions
1. Do you still have feelings for your partner?
Many people who say they want a divorce still have strong feelings for their partner, but due to an ongoing power struggle in the relationship there is a lack of intimacy and closeness. If this is you, it is best that you work on your relationship prior to deciding to divorce otherwise your feelings of loss will overwhelm you and you may find yourself worse off after the divorce than you are now.
Celine had been married for seven years to a man she loved, who she considered to be a real sweet, gentle guy. However, she was very unhappy about their financial arrangement. She was the responsible one who paid all the expenses, while he seemed to be forever getting them further into debt. She was very stressed and miserable and saw divorce as her only way out of the financial strain she was under. But because of her feelings for him she was not able to support such a decision or even set a clear boundary, for fear of losing the relationship. With the help of her therapist, Celine recognized that she either needed to either set a clear boundary and be willing to lose the relationship, or else accept that all her hassling was a waste of time.
2. Were you ever really married?
To be really married a couple must have created a relationship that included an "us" or a "we." Many people who are considering a divorce have never had a marriage that was anything more than two individuals meeting their own needs. They may have raised children and shared a home but they participated in those activities from a competitive rather than unified position. They would ask -- "Do I want to do this or that", rather than ask "Is this good for us?" If you have not developed a genuine "we" in your relationship this would be the time to either commit to learning how to do that or to admit that you have never really had a marriage.
Even as a therapist who works in the area of divorce, I had a very difficult time admitting that my own marriage of fourteen years was in fact in name only, regardless of the years that we lived under the label of husband and wife. Our pattern was to threaten to break up every few months, and we had a daily ritual of fighting, and agreements that rarely lasted more than a week. I used to joke to my wife that she needed to keep her bags packed just in case she needed to leave quickly. This pattern remained despite the numerous counseling offices we attended. It was not until I was able to acknowledge to myself that I was neither single nor married, that I was in fact nowhere, did any real change occur. We started the real divorce process two months later.
3. Are you truly ready for divorce or are you just threatening?
Divorce is often threatened, especially in heated marital arguments for the following reasons;
4. Is this a sincere decision based on self awareness or is it an emotionally reactive decision?
To be ready to divorce your partner means being able to make a clear, unemotional decision that you can support over time. Divorce means being able to let go of all strong emotional attachments to the other person, the loving ones as well as the hostile and hurtful ones. Emotionally charged decisions do not last and if acted on do not resolve the underlying problem. People who divorce out of anger stay angry even after the divorce is over.
A woman came to see me as her divorce coach after she had been divorced for five years because she was still struggling with the effects of her divorce. Her problem was that she was still feeling rage toward her ex husband and found her self hating him on a weekly basis. I said to her, "It sounds like you are still married." She insisted that this was incorrect due to the hatred she had for him. I responded that the hate she was experiencing essentially reflected a great passion toward him despite her hateful label, which I doubted any current man could match. I stated that only someone who is married could have such a passion. From that moment on she began to emotionally detach from her ex husband and work towards, with the help of the coaching, a real divorce.
A statement that would indicate that you are making a sincere, rather than an emotionally reactive decision is, "I acknowledge that you are a person in your own right with your own personality, hopes and dreams, I can respect you for that, but I no longer want to be married to you."
To be ready for divorce is to have a lower emotional attachment to the person you are separating from, other wise, the divorce process itself will be roller coaster of intense feelings, including anger, distrust and hurt.
5. What is your intent in wanting a divorce?
Any agenda, other than ending the marriage, is an indication that you are not ready to divorce. If you are hoping that through the divorce the other person will change and start treating you better, realize how much they have lost or pay for how much they have hurt you, you are getting a divorce for the wrong reason. Divorce has no power to right wrongs nor change people's hearts and minds. Divorce can only do one thing, end a marriage, and in so doing free each person to make new attachments to new people.
6. Have you resolved your internal conflict over the divorce?
Everyone who goes through a divorce is conflicted. People can feel guilty at the same time as they are sure that they want to end the relationship. Or they can feel betrayed and at the same time recognize that their life will be better once they are out of the relationship. Recognizing the conflict and owning that different parts of you will be struggling with the impact of divorce, at different times, is part of the process of getting ready for divorce.
Rick was having the hardest time deciding what to do about his marriage. For the longest time he claimed that he was confused, conflicted, and torn. He couldn't seem to feel at peace being in the marriage or in leaving. His wife was verbally beating him up over his indecisiveness, often calling him a wimp. As his therapist, I asked to speak to the part of him who wanted out and I told him I didn't want to hear from any other part. He started to speak quite clearly about feeling no passion for his wife, but within a minute he began to hedge this voice with statements like "She is a good mother or she is dependable." Each time he would attempt to dilute in this way, I would have to say that I only wanted to hear from the voice that wants "out." As the wanting "out" voice became more and more expressive, he began to visibly sweat. I asked "What is happening?" Finally, he said, "I am feeling guilty." Where is that coming from?," I asked He said, "I made a promise that I would never follow the path of my father who left my mother." With this opposing voice sorted out and clarified, he was no longer confused. He was able to see that this old promise to himself was in conflict with his present desire to end his marriage. As he continued to work through those two opposing parts of himself he was finally able to make a decision that he felt at peace with and three months later he began the divorce proceedings.
7. Can you handle the unpleasant consequences of divorce?
Divorce brings change and grief because it is the loss of the "happy family" dream. Hurts , disappointments, loneliness, failure, rejection, inadequacy can all take hold of the psyche when we are in this extremely vulnerable passage. To be ready for the ups and downs of divorce it is necessary to have a support system of family and friends who will be there to help you emotionally and practically when needed.
One of the hardest consequences of divorce is needing to face another person's pain, be it your children's, your family or friends because divorce affects so many people's lives. If you are the one choosing they divorce you will have to hold on to your decision and the ending of your marriage in the face of all these people and circumstances. If you are the one who does not want the divorce, but your spouse wants to proceed, you will still need to get ready to accept the following consequences of a failed marriage. To know if you are ready, ask yourself if you are prepared for the following changes;
8. Are you willing to take control of your life in a responsible and mature way?
Whether you are the one who wants the divorce or the one who is having to respond to your spouse wanting the divorce both situations have one thing in common, the marriage is ending. How people respond to this fact determines the type of divorce and future they will have. They can come from a position of bitterness, revenge or helplessness or they can negotiate for their future from a position of strength, understanding and respect.. The attitude you choose will determine the type of divorce you have. Your options are as follows: You can make Agreements that:
Protect your rights onlyorRespect your spouse's rights too
Are only good for youorAre good for everyone
Give your spouse lessorGive your spouse what is rightfully theirs
Do not inconvenience youorWork well for everyone
Need frequent court hearings to enforceorNeed no court hearings to enforceIt is our experience that people who prepare themselves by first addressing all 8 questions are more likely to have a collaborative divorce. By starting the process in this way they are much better able to make lasting agreements with each other, resolve their difficulties and develop parenting plans that both supports the children and respects each other's rights.
Bruce Derman Ph.D. and Wendy Gregson LMFT have extensive experience in helping couples obtain a Better Divorce through preparation, collaboration, and effective negotiation.
Bruce Derman biography and additional articles: http://www.mediate.com/people/personprofile.cfm?auid=922
Wendy Gregson biography and additional articles: http://www.mediate.com/people/personprofile.cfm?auid=923
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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.