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Child Custody in Ohio Family Law
Often, the parents of minor children find that they cannot agree on their parental rights and responsibilities. In family law, these child custody disputes occur most often in one of two settings: in domestic relations court in the course of or as the result of a divorce or in juvenile court between unmarried parents. It is important a parent to understand his or her rights and options in both settings.
Child Custody in Domestic Relations
Domestic relations court is a common family law arena. Domestic relations court has jurisdiction to handle child custody cases that arise in the course of a divorce or that arise after a divorce has been finalized (referred to as "post decree").
Generally, child custody can be established or modified by agreement of the parties or by Court order. When determined by the Court, allocation of parental rights and responsibilities is determined using the "best interest of the child" standard. Many factors may be considered in making that determination, such as: age of the children, gender of the children, physical and mental health of the children, physical and mental health of the parents, emotional bonds, ability to provide necessities for the child, a willingness to encourage a healthy relationship with the non-custodial parent, and a child’s own preferences. See Ohio Revised Code Section 3109.04(F). To assist the Court in determining what custody arrangement is in the best interest of the minor child(ren), the Court will often order the parties and the minor child(ren) to be evaluated by a Court social worker. Once the social worker has completed his/her evaluation, the social worker will issue a report of his/her findings and can testify as to his/her opinion relative to child custody.
In many cases, the Court will also appoint a Guardian ad Litem to represent the best interest of the minor child(ren) involved. Once appointed, the Guardian ad Litem will meet with the minor child(ren) and meet with both parents to assess the situation. The Guardian ad Litem may also do other things to better understand the best interest of the child(ren), such as accessing school records, interviewing teachers or school administration, speaking with child care providers, etc. If the custody case goes to Trial, the Guardian ad Litem may choose to participate in the litigation as an attorney or to testify in a manner similar to that of an expert witness.
Once all of the factors have been considered, the Court social worker’s report has been reviewed, and the Guardian ad Litem has been consulted, the Court can order or the parties can agree to two (2) kinds of custody arrangements: sole custody or shared parenting. In a "sole custody" arrangement, one parent is designated the "residential parent and legal custodian" of the minor child(ren). The nonresidential parent has parenting time with the minor child(ren) according to a visitation schedule set forth by the Court or agreed to by the parties. In a "shared parenting" arrangement, the parties share legal custody of the minor child(ren); however, "shared parenting" arrangements do not always result in the parents having equal parenting time with the minor child(ren). Instead, one parent is designated "residential parent for school purposes," and this is often the parent with which the minor child(ren) spend(s) the majority of time. Again, the parenting time allotted for each parent is set forth in a schedule set forth by the Court or determined by agreement of the parties.
Before entering into a divorce or modification of a prior custody order, it is important to consult with a qualified attorney to understand how the law surrounding custody in Domestic Relations Court will apply in your case.
Child Custody in Juvenile Court
In family law situations, Juvenile Court has jurisdiction to handle child custody disputes that arise between parents that are not and have never been married to one another. In some unusual situations, Juvenile Court also has jurisdiction to determine custody when the parties are married and wish to remain married. When a child is born out of wedlock, Ohio law presumes that the mother has full custody of the child; however, the father of the child can pursue his custody rights in a Juvenile Court action and the Court "shall treat the mother and father as standing upon an equality" when making a custody determination. See Ohio Revised Code Section 3109.042.
Similar to custody cases in domestic relations court, child custody can be established or modified by agreement of the parties or by Court order. Again, the court will make a custody determination based on the "best interest of the child" standard, giving consideration to the factors listed in the above section (O.R.C. 3109(F)). In some counties, Juvenile Court will require that the parties participate in a "mediation", an informal negotiation between the parties facilitated by a neutral third party, to determine if the parties’ dispute can be remedied without further Court intervention.
If the parties are unable to come to an agreement in mediation (or if the county in question does not require or encourage mediation), Juvenile Court may also order the parties and the minor child(ren) to be evaluated by a Court psychologist or social worker. This psychologist or social worker will issue a report conveying his/her findings and can testify as to his or her opinion relative to custody. Juvenile Court can also appoint a Guardian ad Litem for the minor child(ren) to represent the child(ren)’s best interest. A Guardian ad Litem in Juvenile Court has all of the authority and responsibility as a Guardian in Domestic Relations court.
Similar to custody cases in domestic relations court, Juvenile Court can order or the parties can agree to one of two kinds of custody arrangements described above: sole custody or shared parenting. One important consideration in both Juvenile Court and Domestic Relations Court is that custody and/or visitation is not linked to or contingent upon payment of child support. In other words, a parent who wants to establish child support must file with either his/her county’s Child Support Enforcement Agency ("CSEA") or file a separate action in Juvenile Court, if appropriate.
Before entering into a Juvenile Court action or a modification of a prior custody order, it is important to consult with a qualified attorney to understand how the law surrounding custody in Juvenile Court will apply to your specific factual circumstances.
In any Ohio divorce, the court orders an equitable, but not necessarily equal, division of property acquired during the marriage. The court does not divide any property acquired before the spouses married. Therefore, it is important to document what property the spouses own and when each acquired it.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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