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Current Issues in Family Law
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.
During the mandated shelter in place, many are asking whether the court orders regarding visitation and parenting time are still in effect. At this point, these orders appear to still be in effect, and unless there is a safety risk, they should be complied with.
It is also important to note that during this time of turmoil and uncertainly, maintaining normalcy and some sense of routine is important for children. If neither home is self quarantined or has been exposed to the virus, children, the court orders should be followed, unless agreed on by both parents.
This is an opinion and not legal advise, and I would encourage you to speak with your attorney or seek legal counsel.
Many are asking whether visitation, custody and parenting time is suspended during the pandemic crisis. There has been no indication or recommendation that this orders are not currently in effect or that they can be violated. It is encouraged that unless both parents are in agreements, that the parents continue to honor the agreement. This will also help children feel safe and give them a sense of normally during this time of crisis.
This is not meant to be legal advise or a contract for representation. Please seek legal representation.
Kimberly Thomas, Family Law Attorney.