Child Custody

On January 1, 1998, the law changed in Ohio. Now, an unmarried woman who gives birth to a child automatically has legal custody of the child unless a court has given custody to someone else. That is not the case in Kentucky and other states.

If the child’s father files a court action for custody, the new law does not mean the Court will automatically give you custody, even if the child has been living with you. The new law says that the Court must give each parent an equal opportunity to prove that he or she is the better parent to have custody. When deciding custody, the Court will look at who has taken care of the child by doing most of the feeding and bathing, arranging for medical care and education, preparing the child for sleep, and arranging for babysitters, etc. The Court will also look at things like the mental and physical health of the parents, whether either parent has a history of domestic violence, and the child’s relationship with other family members. Unless you have concerns for the health or safety of the child during visitation, we urge you to consider allowing reasonable visitation if the father asks for it. The reason for this is that the Court will also consider which parent is more likely to allow the other parent visitation with the child in the future if it decides custody. One way to prove that you would allow visitation with the father in the future is to allow visitation now, even if a court has not ordered visitation and you are not yet required to allow it. This does not mean you have to go looking for the father. It means that if he is interested in visiting with the child, you should consider setting up a meaningful visitation schedule, which is reasonable and can document any concerns you may have about your child’s health and safety if visitation is allowed. That way the father will not be able to prove that you would deny him visitation in the future. If paternity has not been established, many mothers feel that they have the right to deny visitation. That is true; however, under the new law, the courts may decide that the lack of paternity is not a good enough reason to deny visitation, especially if no one really disagrees about whom the father is. If visitation is unreasonably refused, it may be held against you

In child custody proceedings, parents must demonstrate their proposed custody arrangement is in their child’s best interests. If you want to seek custody of your child, you must show that you can provide a stable, healthy, loving environment for your child. Except in extreme cases involving domestic violence or child abuse, judges almost always grant visitation to the noncustodial parent.

Fathers not married to the child’s mother at the time of the child’s birth must establish legal paternity before filing for custody. However, this can be done in conjunction with filing a motion for custody or parenting time.

If there is already a custody order in your case, you cannot file for custody unless there has been a change in the child’s circumstances. See the “Best Interest of the Child” outlined below.

Shared Parenting

Shared parenting is court preferred. Shared Parenting is a “Plan” which allocates all parental rights and responsibilities involving a minor child in a divorce, dissolution or in any action between parents who were never married.  The Shared Parenting will address each and every issue that involves the minor child, including but not limited to, parenting time (also called visitation), decision making authority for extracurricular activities and health care decisions, as well as the school district wherein the child will attend school.  A Shared Parenting Plan often requires the parents to share all or some of the aspects of the physical and legal care of the child.  In addition, under Ohio law, when parents have a Shared Parenting Plan, both parents have the legal designation as being a “residential parent”, even though one parent may have the  designation as the “residential parent for school placement purposes only“. Shared parenting does not mean that the parents will have equal parenting time. In fact that is the exception in a shared parenting plan rather than the norm.

In determining whether shared parenting is in the best interest of your child, the court will consider the “Best Interest of the Child”, including, but not limited to, the following factors:

1. The ability of the parents to cooperate and make decisions jointly, with respect to the children;
2. The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
3.  Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
4.  The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
5.  If the child has a guardian ad litem.The recommendation of the guardian ad litem of the child,
6.  The wishes of the child’s parents regarding the child’s care;
7.  If the court has interviewed the child in chambers, the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
8.  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;
9.  The child’s adjustment to the child’s home, school, and community;
10.  The mental and physical health of all persons involved in the situation;
11.  The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
12. 12.  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;
13.  Whether either parent or any member of the householdof either parent previously has beenconvicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
14.  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;
15.  Whether either parent has established a residence, or is planning to establish a residence, outside this state.

Generally, it is not easy to modify a Shared Parenting Plan, unless there has been a “change of circumstances” since the date of the last Shared Parenting Decree was filed, or if the parties agree.  The Ohio Revised Code specifically states that the court shall not modify a prior decree allocating parental rights and responsibilities for the care of children 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, the child’s residential parent, 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

However, The court may terminate a prior final shared parenting decree that includes a shared parenting plan if it determines, upon its own motion or upon the request of one or both parents, that shared parenting is not in the best interest of the children.

Co-parenting is when parents set their differences aside and work together as a team to raise a child after their divorce or separation. It includes sharing parental responsibilities and making joint decisions that affect the emotional and developmental needs of a child in everyday life.

Through co-parenting, a child’s parents seek to maintain an amicable relationship and share parental responsibilities or some amount of shared responsibility to benefit the child’s upbringing.

A principle of co-parenting is that a child has the right to maintain a stable relationship with both parents, even if they are separated or divorced, unless there is a recognized need to separate the child from one or both parents.

Such a right is based on the concept that to be a parent is a commitment that an adult takes with respect to his/her children — not to the other parent. Hence, that right cannot and must not be influenced by any kind of separation among parents.

By its very nature, co-parenting opposes the granting of child custody of exclusively to a single parent. Instead, co-parenting promotes shared parenting as a protection of the right of children to continue to receive care and love from both parents.

It is possible for parents to work together, even under strained circumstances, when they cooperate for the benefit of their children.