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Current Issues in Family Law |
Ohio House Bill 508: A Potentially Monumental Shift In Ohio Child Custody Law - Part 2 – HB 5085/10/2022 OPINION Best interests of child should rule in custody arrangements Kathleen C. King Opinion contributor Published January 13, 2022 View Comments 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. Recently the Ohio Supreme Court held that a parent who has a no contact order, gives them a justifiable reason why they did not make contact within the look back periods, which could mean their consent would be necessary for an adoption. In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350.
JFS contacted you that they would like you to agree to a Safety Plan. What should I do? THERE ARE THREE TYPES OF SAFETY PLANS: Voluntary In-Home: This is implemented on the JFS 01409 CAPMIS Safety Plan. Voluntary Out-Of-Home: This is implemented on the JFS 01409 CAPMIS Safety Plan. Legally Authorized Out-Of-Home: This child is legally removed from the home and temporary custody is given to the PCSA or relative/kin. The JFS 01409 Safety Plan is not required to be completed. The court complaint and motions will provide the justification of how this safety response will immediately protect the child. Although not the intent, these safety plans could go on for years, with little third party oversite. The benefits of agreeing to a safety plan is to avoid JFS taking custody of the child/dren. This is a reasonable effort that JFS must attempt prior to filing for custody. However, for JFS to gain custody they would first need to prove that the child would be at risk of harm if JFS did not step in and take custody. If they can't meet the burden, than their motion will be denied. SHOULD YOU COOPERATE WITH JFS? It depends on the circumstances. If the allegation involves significant harm to your child yes. However, cooperation is voluntary, but they could argue that your failure to cooperate showed a lack of protective capacity. If you ask that JFS speak to you only with your attorney present, they will cease any further communication, but they could also choose to seek legal custody. If JFS has not taken legal action, they will not appoint you an attorney or a Guardian ad Litem for the child. A SAFETY PLAN IS VOLUNTARY You can discontinue the safety plan at any time. You may change placement providers or ask that the safety plan be terminated. The agency may or may not file for custody if the determine the risk still exists. WHAT TO EXPECT ON A SAFETY PLAN There will be certain rules in place, depending on whether the safety plan is an in or out of home plan. This may require supervision of persons with the children. They will ask you for names of persons who could be listed on the safety plan. More than one person may be named as safety plan providers. They may ask you to participate in assessments and follow those recommendations. This is part of a case plan. You should make sure you understand what is expected to terminate the safety plan. JFS cannot supervise visits, so if supervised visits are required, they will need to be conducted by the safety plan provider or other approved persons. SHOULD I BE A SAFETY PLAN PROVIDER? If you choose to be a safety plan provider, make sure you and the parents under stand the rules. Failure to comply with the safety plan could prevent you from continuing as a placement provider if JFS seeks custody.
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. What is Cash Medical Support in the State of Ohio?
Cash medical support is a payment of $388.70 included in a child support order that is paid by the obligor (usually the nonresidential parent) to be put towards the ordinary medical expenses of the child incurred throughout the calendar year. Every child support order in Ohio established or modified on or after March 28, 2019, includes cash medical support as part of the court’s order. A link to Ohio’s official cash medical support statute can be found here: https://codes.ohio.gov/ohio-revised-code/section-3119.302. Who Owes Cash Medical Support? The cash medical payment is received by the child support obligee (usually the residential parent), unless he/she already is a Medicaid participant. If the prior is true and the child is already receiving healthcare benefits under Medicaid, then the cash medical payment is still owed, however it is sent to the State of Ohio in order to defray the costs associated with Medicaid and healthcare expenditures. If the paying party has a gross annual income that is less than 150% of the federal poverty line for an individual ($19,320.00 in 2021), then he/she will not be required to pay the cash medical support. What if the Child’s Healthcare Expenses Exceed the Support Payment? In the case that the child’s healthcare expenses for the year exceed the amount paid in cash medical support, then the remainder of the expenses will be split among the parenting parties in accordance with the percentage determined by the court or child support enforcement agency.
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