posted by Attorney Monaco on Jul 19
Courts in Ohio have two choices when it comes to making a custody order:
(1) Give each parent equal decision-making authority over the children. Each parent is the “residential parent and legal custodian” in this scenario. The parents will outline their respective responsibilities in a Shared Parenting Plan. This is akin to “joint custody.”
(2) Give one parent the decision-making authority over the children. In this scenario, that parent will be the “residential parent and legal custodian.” The other parent will be the “non-residential parent.” This is akin to “sole custody.”
Ohio law does not use the term “custody.” Instead, we call this “the allocation of parental rights and responsibilities.” Similarly, Ohio law does not use the term “visitation.” The non-residential parent has a “parenting time schedule.”
posted by Attorney Monaco on Jul 19
When making the allocation of the parental rights and responsibilities for the care of the children, the court shall take into account that which would be in the best interest of the children. In determining the “best interest of the children,” 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, 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…;
(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.
posted by Attorney Monaco on Jul 19
In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors:
(a) The ability of the parents to cooperate and make decisions jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.
(f) The factors listed in the “Determining Custody” section.
posted by Attorney Monaco on Jul 19
Ohio law refers to a parent’s right to spend time with his/her children as “parenting time,” although we still commonly hear references to the old terms “visitation” and “companionship.” Whenever the court determines that parenting time a parent should have with his/her children, the court is to consider all of the following factors:
(1) The prior interaction and interrelationships of the child with the child’s parents, siblings, and other persons related by blood or marriage, and with the person who requested companionship;
(2) The geographical location of the residence of each parent and the distance between those residences;
(3) The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, the wishes and concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether 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…;
(12) Whether the residential parent has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;
(13) Whether either parent has established a residence or is planning to establish a residence outside this state;
(14) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child’s parents, as expressed by them to the court;
(15) Any other factor in the best interest of the child.
posted by Attorney Monaco on Jul 19
Divorce cases are often more complicated when divorcing spouses have children together. In order to ease the transition, local courts require divorcing parents to attend an educational program. In Summit County, the program is called “Remember the Children.” The program covers these topics: the grief process, tips on how to tell your children about divorce, divorce games, basic communication skills, how to maintain parenting roles and visitation, and children at risk.
posted by Attorney Monaco on Jul 19
Ohio courts often require parents to participate in a mediation session in an effort to resolve their parenting dispute by agreement instead of by litigation. Most parents find this to be a very attractive option for a number of reasons: they can have a direct voice in their custody decision; they do not have to trust an unknown person with a decision that could affect each member of the family for life; they usually feel good about the mediation because they have had the opportunity to express all of their wishes. In Summit County, mediation is mandatory in most divorce cases.
FACT: About 90% of the parents who reach an agreement during mediation are able to abide by their agreement. Thus, it is far more productive for parents to engage in further mediation than to involve themselves and their children in the litigation process.
A mediation session will typically begin with the mediator allowing each of the parents to state their feelings about the custody situation. After some period of time, the mediator will help the parents switch the entire focus to the needs and future of their child. Each of the parents must think of what will be best for their child, not what is best for themselves. Focusing on the child puts both parents on an equal basis, allowing them to drop their guard and think in a very different manner. This is when parents can begin to address the actual time-sharing procedures, and establish dates and times when each parent will have the child. Other issues discussed in mediation include schooling, medical care, clothing, travel, respect for each other’s lifestyle, remedies for breach of contract, and other areas that may be particular to the specific child and family.
posted by Attorney Monaco on Jul 19
The court shall not modify a prior decree allocating parental rights and responsibilities for unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his residential parent, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent.
(ii) The child, with the consent of the residential parent, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
posted by Attorney Monaco on Jul 19
In order to modify a current parenting time order, the parent seeking the modification has the burden of demonstrating that the modification is in the child’s best interest. Similarly, the parent seeking the modification as the burden of demonstrating that the new schedule being proposed is in the child’s best interest.
posted by Attorney Monaco on Jul 19
There is presently some disagreement among Ohio court as to the proper test to be applied when one or both parents seek a modification of their shared parenting plan. This section of the law was badly written and is directly the cause of the disagreement. One section simply sets forth a test providing that the modification of the shared parenting plan must be in the “best interest of the children.”
Another section sets forth a more rigorous test: The court shall not modify a prior decree allocating parental rights and responsibilities unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
(i) Both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
posted by Attorney Monaco on Jul 19
The court may terminate a shared parenting plan upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children. Upon the termination of a shared parenting plan, the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities as if no shared parenting plan had ever been granted or requested. In doing so, the court’s obligation is to take into account that which would be in the best interest of the children.
In determining the “best interest of the children,” 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, 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…;
(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.