Bringing your disputes before a mediator can offer several benefits for divorcing couples. In mediation, divorcing couples may resolve any issues they would otherwise litigate, including property division, shared parenting arrangements, parenting schedules and more.

Traditional Hallmarks of Mediation are: voluntary participation, self-determination, full disclosure, and informed decision-making. 

Lowering conflict levels
Mediation takes place in a low-key setting where the mediator facilitates constructive discussion and keeps the focus on achieving resolution. This can help communication between soon-to-be exes who may feel overwhelmed with negative emotion. In contrast to courtroom litigation, which for many people tends to escalate the conflict level, mediation can help the parties compromise.

Cost-effectiveness
Another benefit is the relatively low cost of this process, especially compared to a full-scale courtroom battle.   Some Courts offer mediation and may be eligible low-income parties may qualify for sliding fee or no-cost services.

Agreement binding with court approval
Once the parties reach an agreement, their attorneys review it and present it to the court. The agreement becomes binding once the judge approves it. After that point, a party wanting to change any provision will have to formally petition the court. At any point before court approval, the parties can choose to stop mediation and go back to court.

Mediation when there is Domestic or Intimate Partner Violence (IPV)
Usually there is a screening to identify IPV and whether mediation is appropriate.   When IPV has occurred, a party might be unable or unwilling to adhere to ground rules, respect the needs and interests of the other party, fully disclose relevant information, explore options, share decision-making, and commit to honoring agreements.   

The decisions of the parties should be the product of their own separate deliberation and judgment. When IPV is an issue, one or both parties might be subject to undue pressure, duress, threats, manipulation, or intimidation. 

Learn more by speaking with your attorney
Your attorney can and should advise you throughout the mediation process. The mediator may not provide legal advice, so you need your lawyer to discuss the potential ramifications of any decisions you contemplate.

Domestic Violence and High Conflict Cases pose additional challenges for Courts when making a determination regarding custody and visitation.

The Courts do not favor one parent over another and  Domestic Violence between parents does not necessarily foreclose a parent from obtaining custody or shared parenting.  The Courts will be focused on the Best Interest of the Children, based on R.C. 3109.04, which will include addressing safety issues.  The Ohio Supreme Court addressed these issues in Domestic Violence & Allocation of Parental Rights and Responsibilities.

Even if the domestic violence only occurs between parents, children are negatively impacted. Witnessing domestic violence can lead children to develop an array of age-dependent negative effects. Research in this area has focused on the cognitive, behavioral, and emotional effects of domestic violence. Children who witness violence in the home and children who are abused may display many similar psychologic effects.  These children are at greater risk for internalized behaviors such as anxiety and depression, and for externalized behaviors such as fighting, bullying, lying, or cheating. They also are more disobedient at home and at school, and are more likely to have social competence problems, such as poor school performance and difficulty in relationships with others. Child witnesses display inappropriate attitudes about violence as a means of resolving conflict and indicate a greater willingness to use violence themselves.

The Courts recognize the importance of having both parents involved in their children’s upbringing, but it still must be found to be in the Children’s Best Interest.  Traditionally, the Court would not grant Shared Parenting in High Conflict cases, but the trend has been to try and reduce the conflict between parents and not reduce parent involvement. 

In some cases, when parents seem unable or unwilling to co-parent, the Court will attempt to limit the parents contact to reduce conflict between the parents.  In an effort to do that, one option has been to utilize parallel parenting.  Parallel parenting is a technique in which divorced parents who wish to avoid contact do so by limiting their interactions. This solution works for high-conflict divorces, where parents may need some time to cool down before making amends or seeing and speaking to each other on a regular basis.

This parenting style allows both parents to be involved in their child’s life without having to be involved in their ex-spouse’s life. Parallel parenting can be a way to let the dust settle before transitioning to a more interactive parenting style that allows for cooperation and communication. However, for some couples co-parenting isn’t and won’t ever be an option. 

Parallel Parenting can be effective utilizations supports such as:

• Utilizing a third-party facilitator — They will help mediate the creation of the initial plan and any further face-to-face meetings that are required between parents. Several different options exist to moderate discussions, such as a childcare specialist, therapist, social worker or even a member of your church.
• Hammering out extremely specific details — The parallel parenting plan should be constructed to avoid any possible room for misinterpretation. This includes specific times and public places for exchanges, contingency plans for cancellations and methodology for dispute resolution.
• Reducing any kind of notion there will be flexibility — Deviating from a plan breeds conflict. You will need to design everything in advance down to the smallest detail on a shared calendar, and work to uphold the agreement unless there is some kind of catastrophic emergency that prevents you from doing so.
• Communicating only when necessary — Limit communications to only important details, and schedule regular intervals for sharing this information. Additionally, communicate through writing (email, letters, etc.) as much as possible so you can ensure all messages are kept formal and lack anything antagonistic. A shared “parenting notebook” that you can pass back and forth is a good way to document and share important information about your children.
• Running households independently — Parallel parenting means each parent is in charge of making decisions while the children are under their care. Do not send instructions or push the other to change their style. Unless your children are in imminent danger, realize that your way is not the only way to parent.
• Remembering to keep the focus on the children — You and your ex may despise each another, but you both love your children. Any aggravation you must endure from your ex can be endured for the sake of your kids. You may have to remind yourself that at times, but looking out for their best interests is your No. 1 priority.

 

In Ohio a shared parenting plan is governed by statute, R.C. Section 3109.04.  This applies to both married and unmarried parents.  The statute does not favor either parent but makes a determination based on what is in the best interest of the children.  By law, the Shared Parenting Plan (SPP), must specify the visitation and holiday schedule, address religious upbringing, schools and child support.  Parents are often required to include a clause that the parties must attend mediation prior to filing in court to modify the terms of the agreement.

A good shared parenting plan will attempt to address issues that parents will face as the changing needs of the children.  It can be hard to know what the needs will be, but the Plan should recognize that the child is going to want to spend less time with parents and more with their peer group.  Often it is best to see your parenting time not as the time you spend with your child, but rather, the time you are responsible for your child, including transportation to and from school, extracurricular activities and ensuring the child is completing their schoolwork.

Shared Parenting allows both parents to have an equal say in decision making.  However, this can be difficult if parents are unable to communicate effectively and there is a high level of conflict.  In the past, Courts were reluctant to award shared parenting when the couples could not co-parent, but there has been a recent trend to allow parents to Parallel Parent. Parallel parenting is an arrangement in which parents can co-parent by means of disengaging from each other and having limited direct contact.  Though to point out, it’s really not co-parenting.

Parallel Parenting often means that each parent is responsible for certain decisions since the parents have shown they cannot work together to come up with a decision and to force the parents to try and work together can have a detrimental on the child.  For example, one parent may be permitted to make all medical decisions, while the other parent makes all educational decisions.  The benefit is that decisions can be made in a more timely matter and reduces unnecessary conflict. 

In a Shared Parenting Plan, both parties have equal access to information regarding the child.  However, some parents also equate Shared Parenting to equal time.  This is not necessary the case, and may not be reasonable depending on where parents live in relationship to school and the parents work schedule.

What happens if you want to change the terms of the agreement.  Most likely you will first need to attend mediation to see if the parents can workout their disagreement.  This is always the best solution, as parents will remain some control and are in the best position to know what is in their children’s best interest.  If the parents cannot work out an agreement, then the parent asking to modify the Shared Parenting agreement will need to show the court there has been a change of circumstances before proceeding on the Motion to Modify.  Once the Court has found there has been a change of circumstance, the Court will move to determine the best interest of the children.  However, if a parent is asking to terminate the Shared Parenting Agreement, a finding of change of circumstance is not required and the court will make a decision based only on the best interest of the children. This was recently clarified by the Ohio Supreme Court in October 2020. 
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Do you need an attorney?  Probably not for Mediation, but once the matter is before the Court, parties should consider legal representation.

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.
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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.
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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.
http://civilrighttocounsel.org/major_developments/1473#:~:text=The%20Supreme%20Court%20of%20Ohio,the%20federal%20and%20state%20constitutions. 

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.