Ohio Child Custody Questions

Ohio Family Law Attorneys provide answers to frequently asked questions with regards to Ohio child custody and Ohio custody laws.

Who will get custody of our child(ren)?

If custody of the minor child(ren) cannot be agreed upon by the parties, then the court will look to O.R.C. 3109.04, which requires the court to take into account that which would be in the best interest of the minor child(ren).

In determining the best interest of the child(ren), the Court is required to consider all relevant factors. A list of applicable factors is found in O.R.C. 3109.04(F)(1).

After evidence on the matter of custody is presented and admitted the court will apply the evidence to the factors in ordered to make its determination for a custody order. As such, who will be granted custody will vary on a case-by-case basis.

What is joint custody? What is sole custody?

Joint custody in Ohio is referred to as shared parenting. Shared parenting, in short, can be defined as a parenting plan agreement in which both parents are deemed the residential parent of the minor child(ren) and both equally share in the decision making for the minor child(ren). For the statutory depiction of shared parenting refer to O.R.C. 3109.04.

If both parents share custody does anyone pay child support?

It depends on the circumstances of the parties and the circumstances of the case. Please note that an award of child support is for the benefit of the child(ren), not the other party. As such, courts typically require a very good reason for a zero dollar child support order. It should also be noted that shared parenting does not mean 50/50 parenting time.

When determining whether child support is appropriate in a given case the court will consider among other things the incomes of the parties and the parenting time of the parties. If there is a significant disparity in either, there will likely be a child support order, regardless if there is shared parenting or not.

Can a parent refuse to allow visitation if child support is not paid?

No! Parenting time and child support are two separate issues; one has absolutely nothing to do with the other. If a party acts in the above stated manner, they could be held in contempt of court and be subject to fines or possibly a jail sentence.

When can my child decide which parent to live with?

Ohio law does not provide a predetermined age, though many counties do in their local rules. Often they are addressed in the county’s standard order of parenting time. The majority of counties appear to choose the age of 16 as the age in which the minor child may make the choice on their own behalf.

However, it is important to note that mitigating circumstances can outweigh the child’s decision. Accordingly, if the child’s decision is not determined by the court to be in the child’s best interest, then the child’s preference will be not be ordered.

Do grandparents have custody and visitation rights?

Yes, though they are often difficult to procure, as parents have a constitutional right to raise their children. In regards to custody, O.R.C. 3109.04 depicts the manner in which a non-parent, such as a grandparent, may obtain custody of a minor child.

In short, the court must find the parents to be unfit in order to grant custody to a non-parent. This is a much higher standard then the best interest standard that the court uses when determining custody between two parents.

In regards to visitation/companionship rights, O.R.C. 3109.051(B)(1), 3109.11, 3109.12, and 3109.13 depicts the circumstances where a non-parent relative of a child may seek visitation/companionship rights. Again, the best interest standard is applied and all factors listed in O.R.C. 3109.051 may be utilized.

What is a parenting plan, and do I need one?

A parenting plan is essentially a set of parenting guidelines that parents agree to or the court orders. Said plan will include, but is not limited to, agreements or orders concerning custody; parenting time; child support; tax exemptions; extracurricular costs; and health insurance. Some type of parenting plan will be required if you have children.

If my separation agreement includes child custody and child support, can it be included in the divorce decree?

Yes and no. If your separation agreement includes a straight child custody/child support order and includes all of the items required via statute or local rule, then yes it can be incorporated into the decree.

If instead, you have shared parenting or a shared parenting plan, then a decree of shared parenting will need to be issued by the court.

What can I expect from temporary orders?

A variety of temporary orders can be issued for a variety of reasons.  With those regarding support, be it spousal or child, the court generally attempts to maintain the status quo, whatever that may be in a given situation.

Often Ohio courts will issue temporary restraining orders in an effort to protect the assets and liabilities of the parties, and to attempt to deter parties from behaving irrationally while the matter is pending.

Ohio Courts also issue temporary custody orders. Again, the object is to keep the status quo. However, a variety of issues can be evinced which may alter the “status quo,” such as alcoholism or abuse. Regardless of what the temporary order is for, it is only “temporary” so any temporary order issued is not dispositive of what the final order of the court will be.

When will child custody be decided?

Under Ohio law, child custody is officially decided when your Decree of Divorce/Dissolution or your Decree of Shared Parenting is signed by the judge and time stamped by the Clerk of Courts.

When can I modify custody?

Custody can be modified at any time the court determines that, since the date of the final order, a change of circumstances occurred which warrants a modification of custody and that modification is in the best interest of the minor child(ren).

What if we cannot agree on a custody arrangement?

If the parties cannot agree to a custody arrangement, then the court will decide what is in the minor child(ren)’s best interest and issue a custody arrangement to be followed.

What is an ex parte order?

An ex parte order is an order issued without hearing.

How is custody decided?

If custody of the minor child(ren) cannot be agreed upon by the parties, then the court will look to O.R.C. 3109.04, which requires the court to take into account the best interest of the minor child(ren).

In determining the best interest of the child(ren), the court is required to consider all relevant factors. A list of applicable factors is found in O.R.C. 3109.04(F)(1).

After evidence on the matter of custody is presented and admitted, the court will apply the evidence to the factors in order to make its determination for a custody order. As such, who will be granted custody will vary on a case-by-case basis.

How can I increase my chances of being awarded custody or shared parenting with a 50/50 parenting time schedule?

Courts in Ohio award custody based on the best interest of the minor child. To increase your chances of being awarded custody review the factors listed in O.R.C. 3109.04(F)(1) and see how the apply to you and see how they apply to the opposing party. The more evidence that you can provide to the court to support your cause, the better chance you will have of being awarded custody.

In regards to shared parenting, the same factors are relevant, but what is really important to the court is the parties’ ability to communicate together and to jointly decide what is in the best interest of the minor child(ren).

What is visitation?

In Ohio, parental visitation is referred to as parenting time. In general it is the phrase used when referring to the time that parents spend with the minor child(ren).

Can a judge order supervised parenting time or no parenting time?

Yes, a judge may order supervised parenting time or no parenting time if the circumstances presented warrant such an order. For example, a judge may order supervised parenting time for an alcoholic that only recently began the recovery process and was never left alone with the minor child(ren) during the marriage because of the parent’s alcoholism; or a judge may order no parenting time if evidence presented showed that a parent, for instance, sexually or physically abused a minor child(ren), or has a current drug addiction problem.

In short, for the court to order no parenting time, evidence must be presented which shows that the parent/child relationship would be detrimental to the child.

Do courts favor the mother over the father?

It often appears that way, but no. Ohio statutes are written in which on their face and application there is no favoritism in custody matters. All decisions are made based on the facts provided for a given case.  With that being said, the social mores often dictated by society have an impact on custody matters.

What should I know before a custody trial?

Everything! You need to know whom you are going to call to testify on your behalf and the purpose of their testimony. You need to know what exhibits you will be admitting as evidence and why they are important to bring before the court. You need to know who the opposing party is going to be calling to testify and why. You need to know what exhibits they are going to attempt to admit as evidence and analyze the possible purpose of said exhibits. You need to know the law and how it applies to you.

This is by no means an exhaustive list, there are number of things which could come up during a custody matter in which you would need full knowledge of. But lastly, the most important thing you must know, is what you want to get across to the court.

Can I collect my own evidence to use if my custody case goes to court?

Yes, the more you collect the more your attorney doesn’t have to, which of course saves you money. However, it is important to consult your attorney about the kind of evidence that is required and the proper way of acquiring it.

For instance, if a documentation certification is not properly acquired you open up the possibility of not being able to admit that certain document as evidence because the opposing party could argue that it is hearsay.

Do I need to use a Guardian ad Litem?

Ohio courts do not require the use of a GAL (Guardian ad Litem) in a typical custody action. However, they are often a good idea and can benefit your case.

A Guardian ad Litem is an attorney appointed by the court to represent the best interest of the minor child(ren) and report what they believe is in the child(ren)’s best interest to the court.

The GAL will meet with both parents and the child(ren) and see how the child(ren) interact with parents individually. Typically a GAL will generate a report and file it with the court. A GAL’s work is paid for by one of the parties or both depending on the circumstances, and costs vary from county to county and on the amount of work performed.

Though the GAL’s report is not dispositive of the court’s decision concerning custody or shared parenting, courts do often give a great deal of weight to the GAL’s opinion. As such, if the GAL’s opinion favors you, then the benefit outweighs any costs associated.

Will my child need to appear in court?

It is unlikely that your child would have to appear in court to be examined by counsel while in front of both parents. What is more common is an interview by the Judge or Magistrate. Here, the minor will have a one-on-one conversation with the Judge or Magistrate with no parties permitted to be present.

Of course if your child is of an age where they cannot clearly articulate facts or have a clear understanding of what they are being asked, then the court will not interview them.

What if my wife/mother of my children tries to move the kids out state?

The answer to this question depends on the status of the custody determination. If you already have a final order through the court, that order will provide safeguards enabling you to prevent or at a minimum stall an attempted move.

If, however, no complaint has been filed, then you will need to file an emergency motion with the court to prevent the move.

Can a parent change the child’s last name without the other parent’s permission?

In most cases, no. However, if a father has gone a significant time without contact with the minor child or has failed to pay child support for the minor child then the court may allow the name change without the father’s permission.

If I have custody, will I receive child support?

Most likely, yes, though the amount will vary depending on the circumstances of the case.