It can be very confusing as to which court is the proper court to file a motion for alteration of parental rights and responsibilities. Do I file in the Domestic Relations Court? Or, do I file in the Juvenile Court? How are they different? It seems that they both handle child custody issues in Ohio, so which is the right one? Well, the answer is a simple one. If the parents were married and divorced, then the Domestic relations Court will handle all post-decree motions, including those related to child custody, child support and spousal support. However, if the parents were never married, then any original custody determination was made in the Juvenile Court and that Court would handle all subsequent motions related to child custody. Basically, go back to the Court where the original determination was made. If you cannot remember which Court or find your papers, then simply apply the general rule.

If you have never been married to the other parent, and there has never been a Court Order determining child custody, then you would need to file in the Juvenile Court initially.

In Sum: always file in the court that originally issued any order respecting child custody. If there has never been a Court Order respecting child custody and you are not married to the other parent, then file in the Juvenile Court. If you are married but have lived a part for several years and you want a custody determination, then look to the Domestic Relations Court.

If a person wants to take custody of a child that is alleged to be an abused, neglected or dependent child, either with Children Services filing a complaint, or a private party filing a complaint for custody, those prospective custodians must have a home study conducted before they can take the child.

Homestudies may also be conducted when a parent wishes to have custody changed from the original residential parent to him or her.  In this instance, the Court may want to learn more about the prospective residence.

Many people get nervous when the issue of a home study is raised, fearing that outsiders will soon be prying into their lives in ways that seem untoward or unfair.  However, homestudies are rather pro forma  and the items the investigators are interested in are very basic in nature.  When Children Services or a private organization conduct a homestudy, they are effectively looking primarily at the following:

1. Is the home structurally sound?

2. Is there adequate room in the home that would allow the custodians to take-in another child?

3. Is the home sanitary and safe in all respects?

4. Who lives in the home? And would any current resident present a danger to this particular child if he or she were to be brought into the home?

While this is not the entire list of factors the investigators will look at (according to the investigators themselves), the truth is that the above list consists of the primary factors the investigators will be interested in. Like most agencies, Children Services is overworked and is constantly having to place children in safe environments and no case can be investigated in the manner it would be in a perfect world.  Therefore, when investigators visit a home they are looking for basic and immediate red-flags that would caution against placing the children in this particular home, mostly because the lack of resources prevent the  sort of in-depth investigation that all of us would prefer.

As long as the home is safe, sanitary and well equipped to take in another child, the homestudy should be positive in the end.

Under Ohio law, once a parent is designated as the residential and custodial parent, the prefernce is to maintain that person as the custodial parent.  The Courts want to avoid a perneial tug-of-war between the parents with the children caught in the middle.  Courts do not want to see motion after motion filed by the parents, but would rather have the custody established and settled for the benefit of the children.  However, when it is appropriate, a post-decree motion for a reallocation of parental rights should be filed.  The issue, then, becomes what must a parent prove in order to gain custody of their children from the other parent.

When the issue of custody is originally litigated during the divorce proceeding, the parents stand on equal footing as to custody and the standard is simply what would be in the “best interest of the child.”  The best interest standard is a broad concept with 10 factors listed in the statute for the Court to consider.

The situation changes in the context of a post-decree motion. Unlike when the issue of custody was originally litigated during the divorce, the burden is higher on the petitioner.  The parents no longer stand on equal footing as the preference or presumption is to maintain the status quo.  For that reason the legal standard is more involved, which are:

1. That there has been a change in circumstances of the residential parent or the child since the original decree was issued (note: a change in circumstances of the non-residential parent does not matter).  There must be some change that warrants a reallocation of parental rights and responsibilities.  case law has been developed which provides lawyers an idea of what the courts consider to be a substantive change in circumstances.

2. That the change of custody is in the best interest of the child (and the court is again guided by the factors set out in the statute).

3. That any harm to the child by disrupting the status quo will be outweighed by the benefits of the change.

This is a condensed expression of the legal standard, and anyone wishing to have custody altered should consult an attorney, but hopefully it will give our readers an idea of what they must show if they want to pursue custody of their child.

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Gay and lesbian couples are often concerned that their “non-traditional family” will be a disadvantage in custody decisions. While technically this issue is never to be determinative of custody disputes, lest the Court violate the Equal Protection Clause, many gay and lesbian couples feel that their sexual orientation played a role in the ultimate disposition of the Court.   Putting aside potential biases of certain judges, there is at least one case that seems to lend credence to those concerns.  In 2008, the Second Appellant District in Clark County decided a case by the name of Page v. Page in which the Court specifically stated that a homosexual relationship of a mother caused adverse affects to the minor children and warranted a change of custody from that mother to the father.  The facts of that case can be summarized as follows:

Four years after the mother was designated the residential parent of both children, the father filed a motion to modify the allocation of parental rights and responsibilities.  The common pleas trial Court granted the father’s motion and awarded him custody.  The appellate court held that the common pleas court did not err in finding that a change of circumstances occurred as there was evidence that, as a collateral result of the mother’s relationship with her same-sex partner, both children had experienced personality disorders, and therefore, modification of custody was in the children’s best interest. The court determined that the adverse collateral effects of the mother’s relationship with her partner and the partner’s role in the children’s lives showed little room for improvement in the future.

While the Court was careful to say that it was not basing its decision on the simple fact that the mother was a lesbian, but rather the collateral affects that her relationship had on the children, it should give pause to the gay and lesbian couples fighting for custody.  This is something to keep an eye on in the future as more and more gay and lesbian couples fight for custody of one of the partner’s minor children.

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We had quite a reaction to the blog related to whether a child can choose which parent to live with upon the parents divorce in Ohio.  Readers were surprised to learn that a child no longer had the ability to make such a choice, even if the child is 12 or 13 years old, and many were upset to learn this fact (evidently many were counting on this fact). Given the level of reaction, we thought that a few points of clarification were in order. While it is true that a child in Ohio no longer has the absolute right to choose which parent he or she would like to be deemed the residential and custodial parent, a child’s preferences can play a role in the Court’s ultimate decision on the matter.

Under current Ohio law, when a party requests (or upon the Court’s own motion) the minor child can be interviewed by the judge or magistrate in chambers (called an “in-camera” review) as to the child’s wishes and concerns related to custody matters. However, before the Court will take into account the child’s wishes or preferences regarding child custody, it must first determine whether the child has the maturity level to adequately express such feelings in a useful manner (what the statute calls “reasoning ability”).

Should the child have the requisite reasoning ability, the Court must then ask whether interviewing the child and asking him or her to express those wishes and concerns is actually in the best interest of the child, or whether asking the child to “choose” between parents would be detrimental to the child. In other words, although the Court is empowered to take into account the child’s preferences in determining custody matters, it will only do so if the child is mature enough to provide useful input and if asking the child to pick between parents would not be detrimental to the child’s well-being.  So, in short, for those of you counting on the fact that your child wants to live with you as being the winning card against your ex, there is some benefit to that being the case, even if the law doesn’t allow the child to make the ultimate decision.

It is one of the most common myths that people maintain when it comes to child custody: Once a child reaches a certain age, that child can choose which parent to live with, right? Well, that is actually incorrect. However, this myth is based in history and actually grounded is truth. Under former Ohio law, once a child attained the age of 12 years old, that child had the power to choose which parent was to be deemed the residential parent and legal custodian of that child. However, under current Ohio law, minor children no longer have the ability to choose which parent they want to live with on a permanent basis. In other words, when the Court issues its final divorce decree which, among other things, allocates parental rights and responsibilities, it is not the child that determines which parent is to be the residential parent, even if that child is a teenager. Ohio law treats a 14 year old in the same manner as a 4 year old when it comes to determining which parent with be designated as the residential parent. And, like almost all issues involving minor children, the determination is guided by what is in the “best interest of the child”.

So, divorcing parents, remember that your child will not be choosing for or against you when it comes to custody issues. Rather, the Court will decide and you need to focus your energy on convincing the Court that it would be in the best interest of the child to live with you … do not work on convincing the child that he or she should choose you. Which, in truth, is not fair to the child anyway.

Many divorcing couples say that they want to work out Joint-Custody of their children, but wonder how to make that a part of the Divorce Decree. Well, the answer is that there is such a thing as Joint Custody under Ohio divorce statutes, but it is not actually called “Joint Custody”. Rather, in Ohio, what people generally mean by Joint Custody is something called “Shared Parenting Plan”. With a shared parenting plan, the parties agree to share the parenting responsibilities such that one parent is not designated as the sole residential parent and legal custodian of the minor children. The parties agree on some form of shared parenting plan and submit the plan to the court for its approval. If the Court accepts the shared parenting plan, then the plan is actually incorporated as part of the final divorce decree and both parents will have be deemed to have legal custody of the children, as opposed to one parent being the residential/custodial parent and the other having visitation rights only.

So if an attorney or a court talks about a shared parenting plan, remember that that is simply a term for what most people refer to as joint custody.

I was looking over the Morrison & Nicholson Ohio Law Blog webstats the other day and noticed that quite a few people were looking for information about Ohio’s dissolution of marriage process and whether or not a lawyer is required.  Thus, this blog entry was born: What is a dissolution and do I Need a Lawyer for an Ohio Dissolution of Marriage?

In most states the term dissolution refers to a traditional divorce proceeding. However, in Ohio a dissolution of marriage is a statutory alternative to a divorce proceeding in which husband and wife both agree on parental rights, spousal support, and division of personal property, contained in a document called a separation agreement.  The husband and wife then file the a dissolution petition to the court, attaching the separation agreement and various other forms, asking the court to issue a decree.

Ok, so you have googled “dissolution of marriage in Ohio,” purchased the forms from an online legal form vendor for 300 bucks and now your thinking about all the money your going to save by not having to hire a lawyer.  Can this work?  Yes, it can.  A lawyer is not necessarily required to get a marriage dissolution.  However, before you go that route keep in mind that many of these online forms warehouses give little or no instruction as to filling out the forms and the process of filing.  Furthermore an attorney can help negotiate, advise, and protect your interests.  For those of you willing to bear the storm I hope that this blog entry will at give you a big picture perspective of the process itself.

Before you order anything online you should stop by your local county clerk’s office (normally the Division of Domestic Relations) or the website and take a look at the forms that are required for a dissolution.  Doing so will give you a better idea about whether this is something that you would like to tackle yourself.  Also, the people working in the Clerk’s office are generally not very helpful as they are not allowed by law to give legal advice, don’t say that I didn’t warn you.

After you have have all the required forms properly filled out you then submit them to the court.  A petition hearing date will then be set anywhere from 45-90 days later.  At this hearing a judge will ask you and your spouse a few questions then she will issue the decree of dissolution and voilia, your marriage is dissolved.