Ohio Child Custody Law
Ohio child custody law refers to many different situations. Child custody disputes arise between parents in divorce cases and parentage cases. Grandparents and interested persons can also file for custody. Children services can file for temporary and permanent custody. Guardianship proceedings can address the care and custody of a child. Depending on the context and the county, these matters can be heard in domestic relations court, juvenile court or probate court.
Ohio Child Custody
How is Ohio child custody decided? These issues are decided by domestic relations and juvenile courts in Ohio. For disputes between parents, the domestic relations courts in Medina County, Summit County and Cuyahoga County hear such cases. In Wayne County, Ohio, the domestic relations court hears child custody cases in divorce and post-divorce decree cases. The Wayne County juvenile court hears child custody cases between unmarried parents. For purposes of this article, we will refer to all these courts as the Ohio child custody court.
The Ohio child custody court must decide between sole custody to one parent and shared parenting with both parents. The parent who is awarded sole custody becomes the child’s legal custodian and will make decisions about non-emergency medical care, education, religion, discipline and extra-curricular activities. The sole legal custodian must let the non-custodial parent know about such matters but will make the final decisions.
Shared parenting starts with the filing of a shared parenting plan. The Ohio child custody court may or may not approve the plan. If the plan is approved, both parents are named as legal custodians of the minor children and must make all decisions together in the best interests of their children. Neither parent can make non-urgent decisions on their own in such an arrangement.
Shared parenting does not always mean equal parenting time schedules. In fact 50/50 parenting time can exist in either a shared parenting or a legal custody situation. When setting up equal parenting time schedules, some parents like using a one week one and one week off schedule, while others like to take four days one week and three days the next. Other plans get even more creative. There is no one right answer for equal parenting time arrangements. The thing that matters the most is that it fits the parents and children’s schedules and needs.
Recording The Wishes Of A Child Is Prohibited
Recording the wishes of a child is prohibited. Ohio Revised Code 3109.04 (R.C. 3109.04) specifically prohibits the court from considering such evidence:
“No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child’s wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child. No court, in determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child or for purposes of resolving any issues related to the making of that allocation, shall accept or consider a written or recorded statement or affidavit that purports to set forth the child’s wishes and concerns regarding those matters.”
Ohio domestic relations courts and juvenile courts not only follow this rule, but also frown upon children being placed in the middle of a custody battle. The most blatant way to put the child in the middle of the battle is to record his or her statement. Obtaining the child’s wishes should be left to the professionals, such as a guardian ad litem or with an in-camera interview with the judge or magistrate. Besides, the court may suspect that a recorded statement of the child may have been coerced.
Unmarried Mother Is The Legal Custodian Of The Child
An unmarried mother is the legal custodian of the child. One need only look at Ohio Revised Code 3109.042:
“An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian.”
Because the mother has sole legal custody until a court is called upon to designate a legal custodian, the father has to file a paternity complaint to establish his rights to the child. Once the court gets involved, R.C. 3109.042 requires that the father be treated equally:
“A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.”
A Parent With Sole Legal Custody May Be Able To Move Out Of State With The Child
A parent with sole legal custody may be able to move out of state with the child. This situation often arises when a residential parent gets an opportunity to move elsewhere, such as a better job opportunity for themselves or their spouse, or moving closer to family. Ohio Revised Code 3109.051(G) requires the residential parent to file a notice of intent to relocate with the court. The other parent must get a copy of the notice in order to give him or her a chance to be heard on whether the child should move out of state. The right to move the child out of state will depend on a number of factors, including: the child’s relationship with his or her parents and extended family; the child’s adjustment to home, school and community; the age of the child; and the child’s wishes.
In Children Services Cases, Legal Custodians Have Parental Rights, Too
The Ninth District Court of Appeals determined that, when a children services agency files a complaint against a legal custodian that can lead to temporary or permanent custody, the legal custodian has many of the same rights afforded to parents.
In this case, a children services agency took permanent custody of a child from her grandmother who had legal custody of the child at the time the child was removed from her care. The trial court granted the grandmother some, but not all, the protections and rights granted to parents under Ohio law. As a result, the children services agency was granted permanent custody of the child.
Attorney Daniel Gigiano appealed that decision on behalf of the grandmother. On appeal, the Ninth District Court of Appeals held that the grandmother, as legal custodian of the child, was entitled to many of the same rights and protections given to parents under Ohio law. As a result, the permanent custody finding was reversed and the matter was sent back to juvenile court for further proceedings. After the appeal, the grandmother regained the right to custody of the child.
What Factors Does A Court Use To Decide Custody?
What factors does a court use to decide custody and parenting time? The following is a summary of the factors from Ohio Revised Code 3109.051:
- The child’s relationship with the parents, siblings and other relatives;
- The distance between the parents’ residences;
- The child’s and parents’ available time;
- The age of the child;
- The child’s adjustment to home, school, and community;
- The wishes and concerns of the child;
- The health and safety of the child;
- The amount of time that will be available for the child to spend with siblings;
- The mental and physical health of all parties;
- Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time rights;
- The parents’ criminal records or records with children services;
- Whether the parents’ criminal records or records with children services involved the abuse or neglect of the child or domestic violence;
- Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s rights to parenting time in accordance with an order of the court;
- Whether either parent has established a residence or is planning to establish a residence outside this state;
- The wishes and concerns of the child’s parents;
- Any other factor in the best interest of the child.
What Is A Legal Custodian In Ohio?
What is a legal custodian in Ohio? There are a number of sources that explain this term. Essentially, this is the person with the rights and obligations to care for a child. Ohio law provides further guidance:
The Ohio Administrative Code 5101:2-1-01 defines “custodian” as “a person having legal custody of a child or a PCSA, PCPA, or Title IV-E agency that has permanent, temporary, or legal custody of a child.”
OAC 5101:2-1-01 defines “legal custody” to mean “a legal status vesting in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities.”
OAC 5101:2-1-01 says that an “individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by any section of the Revised Code or by the court.”
R.C. 2151.011 gives a similar definition of custodian, but does not abbreviate the terms: “a person who has legal custody of a child or a public children services agency or private child placing agency that has permanent, temporary, or legal custody of a child.”
R.C. 2151.011 gives the same definition to “legal custody.”
A little too dry? Take a look at how the Ninth District Court of Appeals handled such terms in favor of a grandmother who was the legal custodian of a child:
IN RE: A.P., C.A. NO. 12 CA 0022-M
Ohio Legal Custody Proceedings
Ohio legal custody proceedings often begin with a request to “allocate parental rights and responsibilities” or when modifying an existing custody order, “reallocate parental rights and responsibilities.” If a parent is granted custody in a divorce, dissolution, annulment, legal separation or parentage case, that parent is named the residential parent and legal custodian of the child. If shared parenting is granted, both parents are the residential parents, but one will be the residential parent for school purposes, which means the child will go to school in the district in which that parent resides. Shared parenting does not necessarily mean equal time or support, but simply means that both parents share equal parenting rights and responsibilities.
Even when the Ohio domestic relations court grants custody to one parent, the court has continuing jurisdiction to modify their custody orders.
Attorney Daniel Gigiano. Experienced. Aggressive. Knowledgeable.
Attorney Daniel Gigiano is located in Wadsworth, Medina County, Ohio. He regularly represents parents in child custody cases in the courts in Medina, Wooster and Akron. If you have questions about this or other questions you need answered by a Medina County family law attorney in Wadsworth, please call Attorney Daniel F. Gigiano at 330-336-3330.