Dayton Ohio Legal Blog

Dividing Pension & Retirement Benefits in Ohio Divorce – Part 1

Charles Morrison — Mon, 01 Mar 2010 22:03:37 +0000

In the first installment of what is planned to be a series on dividing retirement / pension benefits during a divorce settlement, we look briefly at the common questions of dividing retirement and pension plans between spouses. The parties’ retirement benefits is an important consideration when equitably dividing marital property, because, like the marital residence, retirement benefits are often the largest asset or assets of the parties. Therefore, dividing these plans or funds becomes enormously important. So, let’s now address some common questions.

Is my retirement / pension considered marital property?

As the intro gave away: yes. Just as with any other asset of value that is acquired during the marriage, generally, retirement benefits accrued during the marriage are considered to be “marital assets” and must be divided equally between the parties. If a spouse is working during the marriage and this results in the accrual of retirement benefits, the law sees it as if the non-working spouse contributed equally to the creation of those benefits.

This frequently makes it difficult for a court to carry out its statutory mandate of dividing all marital property equally. Technically, the non-working spouse is entitled to at least a portion of the employed-spouse’s pension fund (as marital property), but the money may not be easily accessible at the time of divorce. Because courts like to maximize the value of all retirement and pension funds, it is normally preferable to avoid causing the withdrawal of the accrued monies, and leave the fund growing in the name of the working spouse. Fees, penalties and taxes can often destroy a pension that is withdrawn when it is not fully matured. But, the problem is that sometimes there simply isn’t other marital property to award to the other (non-earning) spouse at the time of the divorce that will adequately compensate that spouse for his or her rightful portion of a retirement fund. For this reason, valuing and dividing retirement benefits should be one of the first issues contemplated by a divorcing party.

Is it true that my spouse is entitled to half of my pension?

No. Not always. Only the portion of the retirement fund that was contributed to or earned during the marriage is considered “marital property” and subject to division between the parties. The portion of the retirement fund that was earned by the working spouse while unmarried is considered that party’s separate property and the other spouse has no interest in that money. Therefore, the first step is to determine what portion of the retirement fund is marital and what portion is separate property.

How do you value the portion of the retirement fund that is considered “marital”?

In determining the portion of a pension or retirement plan that is considered a “marital asset” and subject to division between the parties, the court should calculate the ratio of the number of years the employed-spouse worked during the marriage to the total number of years he or she worked at the qualifying employment to earn the pension. Only the portion of the pension that was earned during the marriage is a marital asset, and the spouse of the employee is only entitled to a proportionate share of the marital asset.

Example – Employed spouse works 25 years to earn a vested pension of $100,000. 10 of these years were worked during the marriage. This equates to a 40% ratio, and only $40,000 of the pension is a martial asset. Because the division of marital property always begins with an equal division, the non-employed spouse would typically be entitled to $20,000 in this scenario.

Now, assuming the court doesn’t want to destroy the fund if it would be better for the employed spouse to contribute for 30 years, you see where it could be difficult to off-set this amount with other marital property? How many couples have $20,000 (in liquid form, moreover) lying around to award the other spouse his or her fair share of this fund at the point of divorce?

Are Social Security Benefits Divided?

No. Not directly, anyway. Social security retirement benefits are not considered marital assets to be divided when a couple divorces. A court cannot distribute a portion of one spouse’s SS benefits to the other spouse directly. However, the court does consider the SS benefits when making an equitable division of retirement benefits overall – See Smith v. Smith (1993, Franklin Co) 632 N.E.2d 555 (“while not divisible as a marital asset, SS benefits must be considered when equitably dividing pension benefits”).

Are State and federal retirement plans treated differently?

Yes. The law related to state and federal retirement plans will be the subject of a later post. There are specific rules that govern certain public-forms of pensions, such as military pensions, State pension plans (e.g., PERS) and deferred compensation plans. Those forms of retirement benefits are impacted by specific federal and state statutes that must be consulted where applicable.

Brought to you by the Miami Valley Ohio law offices of Morrison & Nicholson. Call today to schedule a consultation (937) 432 – 9775.

What are Leally Sufficient grounds for Divorce in Ohio?

admin — Sun, 17 Jan 2010 21:13:53 +0000

Divorce is purely a matter of statute and each of the acceptable grounds for divorce in Ohio are fixed by statute. This means that you and your spouse cannot simply list whatever reasons you personally have for wanting the divorce in your Pro Se complaint and have the Court accept them. Rather, your complaint for divorce must list one or more legally sufficient grounds, enumerated under the applicable statute, and put on evidence of that ground at the hearing.

So, what are legally sufficient grounds in Ohio? Generally, any of the following will suffice:

1. Either party entering into a bigamous marriage

2. Willful absence of the adverse party for one year

3. Adultery (obviously!)

4. Extreme cruelty (carefully defined under statute)

5. Fraudulent contract (marriage is a contract, after all)

6. Any gross neglect of marital duty

7. Habitual drunkenness

8. Imprisonment of the adverse party in a state or federal prison when the petition is filed with the Court

9. Procurement of a divorce outside Ohio, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while such obligations remain binding upon the other party

10. On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation

So there you go, now you know that “he is a jerk” will not suffice as legally sufficient grounds to state in your complaint. You must plead and prove one of statutorily enumerated grounds established by the Ohio Legislature to obtain a divorce.

Do Grandparents Have the right to visit their grandchildren in Ohio?

Charles Morrison — Mon, 28 Dec 2009 09:12:47 +0000

Under current Ohio law, grandparents are permitted to petition the court for visitation rights with respect to their grandchildren. One would think that such a petition would not be necessary, but, unfortunately, more than we would like to think grandparents are prevented from seeing thier grandchildren. Quite frequently, grandparents turn to the courts in order to have the opportunity to spend time with their grandchildren. This often comes up as a problem when a couple divorces and whomever is chosen as the residential parent does not want his or her former in-laws to visit the children. Therefore, grandparents need to be aware that if the Court finds that it is in the child’s best interest to have visitation with his or her grandparents, they do have legal recourse. However, it must be noted that the Court is required to give some special weight to the wishes of the parents as to whether the grandparents are granted the right to certain visitation with the children.

This does not mean that the parents wishes control the Court’s decision, but that if the parents feel strongly against visitation, the court must consider that fact. But even if the residential parent does not want to allow the visitation, the Court can , and often does, grant the visitation if it is in the best interest of the child. There are specific stautory provisions that cover the visitation rights of grandparents in Ohio, so you should seek the advice of counsel to determine if your case is worth pursuing.

Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation (937) 432 – 9775.

Commonly asked Social Security Disability / SSI questions.

John Nicholson — Thu, 10 Dec 2009 16:10:52 +0000

There are often basic questions about Social Security Disability benefits, so we have decided to answer just a few of them here.

Q 1. What does it cost to hire an attorney for my SSD / SSI claim?

A 1. Nothing. Our firm does all SSD cases on a contingency basis. We take a percentage or pre-determined amount (determined under Statutes) of the back-pay you are awarded. If you are not granted SSD benefits, then we do not collect anything.

Q 2. Is there a difference between SSD and SSI benefits?

A 2. Yes. SSI is usually reserved for those individuals with very low incomes, and/or those that have not worked long enough in order to earn SSD benefits.

Q 3. How do I prove SSD eligibility if I do not have the money to visit a doctor?

A 3. This is one of the hardest issues for SSD applicants. On the one hand they are not working because they are disabled, and therefore, they do not have health insurance that allows them to visit a doctor. On the other hand, it is harder to prove SSD eligibility without documentation from treating physicians. Those that believe that they are eligible for SSD benefits ought to see a doctor as much as they can in order to build the strongest case. However, if you previously worked and had health insurance which allowed you to visit a doctor, we can use those records to prove your case. Check with our office and we will help determine the best course of action you should take.

Q 4. How long does it take to start receiving my benefits?

A 4. This is the hardest part for many applicants to understand. The SS offices are very overworked and any given case can take 1-2 years. However, if you never start the process, you will never receive benefits. it is better to get benefits in 1-2 years than not at all. You need to come into our office ASAP so that we can begin the process on your behalf.

Q 5. Do I have to be completely disabled in order to receive SSD benefits? NO and YES. No, you do not have to be completely disabled in the ordinary sense of that word. Meaning, you do not have to be bed-ridden or need round-the-clock assistance. However, you need to be completely disabled as that term is used in the federal Statutes. The definition in the federal statutes is much more broad and the vast majority of the people who can do normal daily activities are eligible for SSD benefits.

We hope this answers some basic questions for now. We will post more common questions and answers in the near future. Feel free to contact us through the online contact form or call our office at 937-432-9775 for an appointment to discuss your claim.

Interim custody, attorney fees, spousal, and child support while a divorce case is pending in an Ohio Court

Charles Morrison — Mon, 07 Dec 2009 16:10:51 +0000

It is often the case that a couple that is going through a divorce has one of the spouses move out of the home, leaving the other spouse with primary custody of the children. The vacating spouse is often the breadwinner of the home, however (after all, he or she has the funds to rent an apartment during the course of the divorce action). This can leave the remaining spouse in the home with the children and no source of (or not enough) income to continue to run the household and properly care for the children. So, what is that spouse to do? One answer is to file a motion with the court requesting that the other spouse be required to pay monthly child support until the final divorce decree is filed with the court.

This temporary child support is but one example of “interim orders” that the court is empowered to issue while the divorce case is proceeding through litigation and until there is a final resolution to the case. Other interim orders that the court may grant include: (1) Temporary spousal support; (2) award one spouse sole occupancy of the marital residence; (3) award interim attorney fees for one of the spouse to be paid by the other spouse, among others. Therefore, when you speak with your attorney, be sure to bring up all financial concerns that you may have with filing for divorce and there may be a remedy available.

Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation (937) 432 – 9775.

OHIO County-Specific Divorce Requirements

Charles Morrison — Sat, 14 Nov 2009 14:12:48 +0000

Often, married couples that are divorcing want to make the process as quick and painless (and inexpensive) as possible. They have come to some sort of agreement as to division of real and personal property, alimony amounts (if any), who they want to be the residential parent, and so on. But, just as frequently, divorcing couples cannot come to an agreement as to one or more of the above issues. In the latter case, this would be a contested divorce. When the divorce is contested, attorneys first work to resolve these issues by way of settlement in order to avoid a trial.

However, many times couples are so at odds with one another that nothing is negotiable and a trial is the only way that a resolution to one of the common issues can be reached. The trial is not unlike a criminal trial in that witnesses will be called to present testimonial evidence and documents will entered as exhibits to prove whatever the party introducing the evidence wants to prove (e.g., that a retirement account or home should not be considered maritial property).

Because a contested divorce can go to trial, one must be cognizant of how many courts differ in the trial process. In short, trial processes are very county-specific and it is important to be familiar with the Court’s local rules and customary practices. Some counties require several “pre-trials” beforehand and ask for several formal statements to be submitted to the court and filed with the Clerk of Courts ahead of the pre-trial or trial date. Some courts require the parties to submit to mediation before a trial is finally conducted, while other counties do not provide a mediation program for Domestic Relations matters at all. In other words, A divorce action in Greene County, Ohio can differ dramatically from a divorce action in Montgomery County, Miami County, Warren County or Butler County, Ohio. Familiarity with the judges and the court-specific rules can really help divorcing couples avoid a long and protracted divorce action and help make the entire process easier to meander through and more cost-effective for all involved.

Is it a good idea to talk to the cops? Why not?

John Nicholson — Thu, 10 Sep 2009 16:10:39 +0000

People ask us all the time whether they should talk to the cops. Think you can talk yourself out of a ticket, ovi, or a domestic violence? This is an interesting 4 part video of a law professor’s lecture. He is pretty entertaining and the information can be useful to many. The second video deals with trying to talk yourself out of a ticket, ovi, dui, as well as hitting on many interrogation tricks that police use to solicit incriminating information.

Do the police really have to read me my rights?

Ohio Revised Code penalties for misdemeanors and felonies.

John Nicholson — Thu, 10 Sep 2009 16:10:34 +0000

I have noticed several users searching for a felony and misdemeanor maximum penalty chart. I have responded by posting the easy to read chart below …..

Degree of Felony	Prison Term	Fine**
First Degree	three, four, five, six, seven, eight, nine, or ten years	$20,000
Second Degree	two, three, four, five, six, seven, or eight years	$15,000
Third Degree	one, two, three, four, or five years.	$10,000
Fourth Degree	six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.	$5,000
Fifth Degree	six, seven, eight, nine, ten, eleven, or twelve months.	$2,500

MISDEMEANORS

Degree	Prison Term	Fine**
First Degree	not more than six months	$1,000 max
Second Degree	not more than ninety days	$750 max
Third Degree	not more than sixty days	$500 max
Fourth Degree	not more than thirty days	$250 max
Minor Misdemeanor	none	$150.00 max

DUI / OVI Ohio Penalties

Closed period of disability and returning to work

John Nicholson — Thu, 10 Sep 2009 16:10:31 +0000

Morrison & Nicholson receives several calls each month from folks that had to quit work at some point due to their disability, however, they are now able to work as they did before and they want to know whether they are entitled benefits for the time they were disabled even though they have not yet applied for benefits. The answer we give them is as most answers law related, maybe.

First, you must have been disabled as defined by the Social Security Administration, that is, you must not be able to do any kind of substantial gainful activity for a continuous period of at least one year, or have an impairment that may result in death. If you were disabled for at least 1 year and then returned to work, the period that you were disabled is referred to as the “closed period” of disability. Although, you can file and receive benefits for the closed period of disability the application is only retroactive for a period of 1 year from the application submission date. For example, if you were disabled on March 2, 2007, returned to work in August 2008 and filed for benefits in March 2009, then you would only recieve benefits from the month that you were disabled from March 2008 – March 2009.

Do the police really have to read me my rights?

Charles Morrison — Thu, 10 Sep 2009 16:10:29 +0000

It happens all the time. A client will walk into my office to discuss a criminal matter and even before I can start the preliminary questioning about the situation, the client exasperatedly proclaims, “the police did not read me my rights.” Usually, the client believes that this is a case-winning fact and one that I ought to care much about. However, the truth of the matter is that the police do not have to read the widely-known “Miranda rights” to each and every person they arrest. And even if they do violate the person’s 5th Amendment rights, this may not have any impact on the ultimate outcome of the case.

The reason is that under current constitutional law, the police only have to read the Miranda rights when they are conducting “custodial interrogation” of the suspect. That is, if the police do not attempt to question the person about a crime, they do not have to advise the person that they have the right to remain silent, to an attorney, and so on. Simply asking an arrestee his name and where he lives would not qualify as “interrogation.” The police must be attempting to elicit inculpatory information from the suspect about a possible crime in order for it to be said the suspect was “interrogated”.

In short, it is only when two distinct criteria are met that the Miranda requirement is triggered: (1) the suspect must be in “custody” (a very fact specific inquiry) and the (2) the police must attempt to question the suspect about a crime they are investigating. If neither of these are satisfied, there is no Miranda violation. For instance, if an arrestee volunteers statements to the police, sometimes done as a last ditch effort to avoid arrest, the police and prosecutor are completely free to use those statements at a later trial, even when the defendant is never Mirandized. Because the police did not interrogate the suspect, but merely listened to what the suspect had to say on his own, one of the two necessary criteria discussed above are absent. Lesson to take from this: it is almost always true that talking to the police is a bad idea.

Furthermore, it is not that uncommon for the police to feel that they have no need to immediately question the suspect due to the fact he or she believes they have all the evidence they need in order to sustain an arrest (and ultimately, a conviction). Perhaps the officer witnessed the crime first-hand, or there are numerous witnesses at the scene who immediately point the finger at the arrestee. In either case, the officer may have no need to question the defendant and, therefore, no need to read the Miranda warnings at all. The bottom line is that not every person arrested has a constitutional right to have the Miranda warnings read to them, but rather only when they are subjected to custodial interrogation.

But this is not the end of the story. Let’s assume that the police in fact engaged in custodial interrogation and failed to properly Mirandize the suspect. This constitutional violation may not have any practical impact on the resolution of the defendant’s case. The remedy available for such a violation is not that the case is dismissed (as many people incorrectly believe), but rather that the statements obtained as a result of the violation will be excluded from trial. If the state has ample other evidence to sustain a conviction, the exclusion of these inculpatory statements will not make much of a dent in the overall strength of the state’s case. The state may not care that these statements are inadmissible given all of the other evidence it can still put before a jury. And this can obviously impact plea bargaining leverage as well. Now, of course, if the state’s case is weak and the statements are really needed in order for it to carry its burden at trial, then the police misconduct ends up being a huge chip that the defense can use during plea negotiations. And in rare cases, if the state’s case is so weak that without the use of the defendant’s statements it can not make out a prima facie case, the case may be dismissed upon motion.

So the next time you here someone complain that they were not “read their rights,” do not get the impression that they are out of the woods.

Guns, the NFL, and the Second Amendment Rights of Players

What is the Listing of Impairments for purposes of establishing disability?

John Nicholson — Thu, 10 Sep 2009 16:10:22 +0000

What is the Listing of Impairments and is it used to establish disability?

The Listing of Impairments, also known as “The Listings, is set out in Social Security regulations. The listings are in two parts. Part A of the Listing of Impairments contains medical criteria that apply to the evaluation of impairments in adults age 18 and over. Part B of the Listing of Impairments contains additional medical criteria that apply only to the evaluation of impairments of persons under age 18. The listings are examples of common impairments for each of the major body systems that Social Security considers severe enough to keep an average adult from doing any gainful activity. See appendix 1 of subpart P of part 404 of Social Security’s regulations for the Listing of Impairments.

The listed impairments are of such a level of severity that Social Security considers a person whose impairment(s) meets or equals the Listing of Impairments to be unable to do any gainful activity, that is, the impairment(s) is expected to result in death, or to last for a specific duration, or the evidence must show that the listed impairment has lasted or is expected to last for at least 12 months in a row.

Many medical conditions are included in the Social Security Disability List of Impairments (including multiple sclerosis, rheumatoid arthritis, lupus, etc). However, keep in mind that you can still qualify for SSD / SSI benefits even if your illness is not listed on the Listing of Impairments.

Easiest way to terminate the marriage when one spouse no longer lives in Ohio | Dissolution vs. Divorce

Charles Morrison — Thu, 10 Sep 2009 16:10:20 +0000

The Courts of Ohio have jurisdiction to terminate the marriage of any Ohio resident that has lived in the state for at least six months. This is the case even if the marriage took place in another state. The termination can be by way of Divorce, Dissolution or annulment (in rare circumstances). Often, couples that have separated and are living apart want to terminate the marriage and have already come to an agreement on all relevant issues (property division, child custody, spousal support, etc). In other words, the parties agree to go their separate ways and really do not want (or have anything) to fight over.

Frequently, when the parties agree on all material issues, the best mechanism for terminating the marriage is a dissolution. When parties petition the Court for a dissolution, they submit a separation agreement to the Court along with the petition. Both parties later appear in court for a brief hearing where they affirm their desire to dissolve the marriage and to declare their agreement on all material issues, as is evidence by the signed separation agreement. This seems easy enough, right? Well, maybe not.

A dissolution will not work when one of the parties to the marriage is unable to appear in Court here in Ohio. At the heart of the dissolution is the idea of agreement by the parties, and if one of the parties does not appear in court to formally declare their agreement, the Court cannot terminate the marriage. In this scenario, the parties should look into an “uncontested divorce.”

Generally speaking, an uncontested divorce is where one party files a complaint for divorce and the other spouse fails to file any responsive pleading or otherwise appear and defend the action. The Court can terminate the marriage by simply having the plaintiff-spouse testify (along with one other witness to corroborate the testimony) and the defendant-spouse need not appear at all. Although this seems rather intuitive, the real benefit of an uncontested divorce is that the parties can still enter into a separation agreement, just as in a dissolution, and submit it to the court for incorporation into the final divorce decree.

So, whenever two spouses reside far apart, they should consider an uncontested divorce action to save the absent spouse travel expenses. But, remember that this will only work when both spouses are in agreement on the division of property, child custody, spousal support, etc.

Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation (937) 432 – 9775.

Child Support in Ohio – How can I have the amount adjusted if I can no longer pay the current amount?

admin — Thu, 20 Aug 2009 02:24:01 +0000

Child Support in Ohio is established by statute and is based upon a standard formula. Only in rare cases does the Court deviate from the amount that the formula prescribes for the divorcing couples’ situation (if the divorcing couple makes a lot of money or very little money combined, the Court has the power to ignore the prescribed formula and establish an amount itself). This formula is useful and may be fair at the time of the divorce decree, but many clients want to know what happens if circumstances change such that the amount of child support is too much or too little a few years down the road. For example, maybe the father has lost his job and can no longer pay the amount originally set-down in the divorce decree. Or, say the wife wins the lottery and now has a better financial position than she did when the couple divorced. Well, a child support obligor can ask for an Administrative review of the child support amount (through the Child Support Enforcement Agency) and ask that it be reduced based upon a change of circumstances. Or, the obligor can file a motion with the Court (as a post-decree motion) and ask that the Court modify the amount based upon the change in circumstances. If the Child Support Agency (CSEA) declines the obligor’s request for a modification downward, he can appeal that ruling to the Court afterward. So, in short, if you are a current child support obligor and you feel that based upon a change in circumstances, the amount you are paying is no longer appropriate, there are avenues to pursue where you might have it reduced. Speak with an attorney or contact our firm for a free consultation to determine whether you can have your child support reduced (or increased) and how best to go about it.

Can I Increase Visitation With My Child As Opposed to Filing for Custody?

Charles Morrison — Thu, 20 Aug 2009 02:23:59 +0000

We have previously posted on the topic of filing a motion to change custody of minor children from one parent to the other (a motion to “reallocate parental rights and responsibilities”). As was discussed in that post, the petitioning parent that wants to become the custodial parent has the burden to prove that there has been some substantive change in circumstances of the current custodial parent or the minor child (not the petitioning parent’s circumstances). This can be a rather high burden for the petitioning parent to meet, and if the child appears to be doing alright in the current situation, the chances of success are not that great, even if the petitioning parent’s home would be a better destination for the children. Courts are loath to shift the children around after custody has been established, and therefore, a change in circumstances is needed. Once the parent shows that there is such a change, he or she must demonstrate that a change in custodial status would be in the children’s best interest. If the parent cannot first adequately show a change in circumstances, there is no need to even evaluate the children’s best interest.

However, what if the petitioning parent does not want to obtain legal custody, but rather wants to merely increase visitation with the children? Although the motion would still be considered a motion to reallocate parental rights and responsibilities, the standard for modification of the prior Court Order is not as high. The petitioning parent need not show that there is any change in circumstances in order to prevail on a motion to increase parenting time (“Visitation”). Rather, all the petitioning parent must do is demonstrate that increasing visitation is in the child’s best interest. Essentially, a petitioning parent skips straight to the best interest issue, and never has to show that something has changed with the custodial parent or child. Motions to increase parenting time are common and are often granted, considering that increasing visitation would not fundamentally disrupt the children’s life and more contact with a parent is in most cases beneficial to the child.

Brought to you by the Ohio law offices of Morrison & Nicholson. Call today Family Attorney Charles “Bill” Morrison for a free consultation (937)-432–9775.

Difference between Domestic Relations Court and Juvenile Court in Custody cases

Charles Morrison — Sun, 02 Aug 2009 13:18:45 +0000

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.

Children Services Home Studies When Custody Is an Issue

Charles Morrison — Fri, 10 Jul 2009 16:12:26 +0000

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.

What is the standard to request legal custody in Ohio?

Charles Morrison — Fri, 10 Jul 2009 16:10:30 +0000

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.

Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation (937) 432 – 9775.

Are Gay and Lesbian Couples Disadvantaged When Seeking Custody in Ohio?

Charles Morrison — Tue, 23 Jun 2009 00:50:42 +0000

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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When can I have my criminal record sealed in Montgomery County?

John Nicholson — Wed, 10 Jun 2009 11:54:49 +0000

Here is an easy to read chart answering a question that is asked weekly by many callers. When can I have my record sealed? If you are looking for information on ILC or diversion click here.

Wait Periods to File Motion to Seal Record
Felony conviction	3 years after final release
No True Bill issued by Grand Jury	2 years after Grand Jury decision
Misdemeanor conviction	1 year after final release
Completed Diversion Program	No wait period, apply after dismissal of case
Dismissal of charge	No wait period.
Completion of TLC or ILC	No wait period.
Found not guilty	No Wait period.

Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation about sealing or the expungement of your records at (937) 433–9775.

OVI / DUI in Ohio Facts

John Nicholson — Fri, 05 Jun 2009 15:47:42 +0000

Ohio drunk driving cases are referred to as Ohio OVI (operating a vehicle while intoxicated), Ohio DUI (driving under the influence of alcohol), or Ohio OMVI (operating a motor vehicle while under the influence, impaired, or intoxicated). All of these acronyms relate to the same offense, found in the Ohio Revised Code.