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Current Issues in Family Law |
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.
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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.
Domestic Violence does not automatically foreclose a parent from visitation, custody or shared parenting. The Court must still assess what is in the best interest of a child weighing safety issues with the rights of parents and a child regarding the parent child relationship.
A parent making false allegations regarding domestic violence could also hinder a custody case, and could result in the loss of custody and/or visitation. When there is domestic violence, the Juvenile Court has limited resources regarding supervised visits, and rarely is supervised visitation or the termination of visitation a final order of the Court. In Hamilton County, the Court can refer a parent to the Children's Home for up to six visits of supervision. The Court will be provided notes of the visits and can use that as part of their basis of their decision regarding visits. The cost of is $200 an hour, but depending on the parents income, parents could qualify for a scholarship. Often when supervised visits is requested, the requesting parent will need to supervise or find a third party willing to do the supervision. This may not be viable long term option. However, the First District Court of Appeals recently ruled that in limited circumstances, the Court could terminate visitation. The Court stated that "a noncustodial parent’s right of visitation with his or her children is a natural right and should be denied only under extraordinary circumstances. Extraordinary circumstances include unfitness of the noncustodial parent or a showing that visitation with the child would cause harm. Guliano v. Guliano, 11th Dist. Trumbull No. 2010-T-0031, 2011-Ohio-6853, ¶ 54. “If there is clear and convincing evidence that visitation presents a significant risk of serious emotional or physical harm to the child, or a showing of some justification for preventing visitation, the court may deny visitation.” Linde v. Linde, 1st Dist. Hamilton No. C-940944, 1996 WL 97563, *5 (Mar. 6, 1996)." Crystal Baker v. Anthony Edwards C190686. When deciding custody and visitation issues when there is domestic violence, the Court will make a determination of what is in the best interest of the child. The Ohio Supreme Court has provided guidance on what the Court should be considering. 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. Kinship Care Versus Foster Care
Differences in requirements for Kinship Vs. Foster Care Kinship caregivers are able to apply to become foster parents and complete the homestudy process. Kinship Foster Care Kinship caregivers undergo a “home assessment” and “approval” process. Foster parents undergo a more detailed “homestudy” and “licensure” process. As part of the home assessment process, at least one home visit is conducted prior to approval – basic safety issues are checked and the kinship caregiver’s willingness and ability to care for the child are explored. As part of the foster care licensure process, the following requirements are completed:
There are no training requirements for kinship caregivers. Kinship Caregivers are able to attend trainings after the approval process, if they want to learn more about caring for the special needs of their kin child. Foster caregivers are required to complete 36 hours of preservice training prior to licensure. They are required to complete 40-60 hours every two years to maintain their license, depending on the type of license they hold. It can take 30 days or more for the completion of the approval process. In emergency situations children can be placed with a relative quickly prior to the official approval process as long as there are no safely concerns. The foster care licensure process generally takes 3-6 months depending on agency workload and training schedules. The kinship caregiver may need to pay for required Ohio BCI and FBI background checks (about $50 total) – otherwise, there are no costs for being assessed and approved as a kinship caregiver Applicants are sometimes required to pay for their BCI and FBI background checks, fire inspection, well water test, and the amount their doctor requires (if any) to complete the medical statement for all household members. Kinship caregivers may be eligible for Ohio Works First “child-only” monthly benefits for the child. Child-only benefits are approximately $300 a month for the first child and reduced amounts for each additional child. EG. 1 child is $297, 2 children is $406, 3 children is $497, etc. Foster parents receive a daily per diem rate for each foster child placed in the home. Daily rates vary by county and agency based on the age and special needs of the child. Children who are in the custody of a PCSA and placed in a kinship home receive Medicaid. Children who receive OWF child-only benefits are also eligible for Medicaid. Children who are in the custody of a PCSA and placed in licensed foster homes receive Medicaid. A kinship home is assessed and approved for a specific child. If a kinship caregiver is approved for one child, and another child is placed at a later date, the PCSA is required to complete another home assessment that takes the new child into consideration. Foster parents receive a license to accept placement of a range of children. After the initial licensure of a foster parent, the licensing agency is required to recertify the home every two years and complete amendments whenever there is a significant change, such as a relocation or new household member.
Each Ohio county has a child protective services agency that addresses allegations of child abuse, neglect and dependency. These agencies are charged with investigating the allegations and determining their veracity. What rights do I have if a caseworker comes to my home? Unless the caseworker has a court order, you do not have to allow the caseworker into your house, permit her to talk to your children, sign releases for any of your personal information or consent to any evaluations or tests. You also have a right to have an attorney present when you talk to a caseworker. What happens if, based on the caseworker’s visit, the agency decides that my children are being neglected or abused? In such a case, the agency may either ask you to work a voluntary case plan, or may file a complaint for a shelter care hearing in juvenile court asking the state to intervene on behalf of your children. What happens if a complaint is filed against me? A hearing must be held within 72 hours after a complaint is filed. This first hearing is a called a shelter care hearing. At this hearing, the agency must prove to the court that your children should not be returned home. A Motion for Removal from Shelter Care may be filed in response. A party to the case, including a parent, legal custodian, guardian ad litem, agency or prosecutor can request a removal from shelter care hearing if (1) the child was removed from the care of a parent or legal custodian and put into placement in foster care or with a relative or other individual, AND (2) either of the following occurred: (a) they were not served or given notice of that initial Shelter Care hearing, or (2) there is a change in the situation of the child or the parent/legal custodian that would give rise to a request for the parent or legal custodian to request the child be released from shelter care and returned to them or a parent or legal custodian. If your children are found to be abused, neglected or dependent, the court will schedule a dispositional hearing where a case plan will be adopted and the temporary placement of your children will be determined. |
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