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