Either or both parents can be awarded custody of the children in a divorce. In Ohio, the parent deemed most capable of nurturing and caring for the child, who appears to have a sincere desire to be the child’s caretaker is usually awarded physical custody.
Either party can request the judge have an “in camera” (in the judge’s chambers) discussion with the child(ren). In this meeting, the child can express his preference as to which parent he would prefer to live with. No child in Ohio has the absolute right to determine this, but if the child can express himself adequately in the opinion of the court, his or her wishes will be given much consideration. In the eyes of the court, the parents stand on equal ground unless there is some factor that deems one of the parents less desirable when considering “the best interests of the child.”
Best wishes of the child
This legal standard is defined in Ohio Revised Code (ORC) Section 3109 (F)(4). The “best interest” factors are:
· The wishes of the child’s parents regarding the child’s care;
· If the court has interviewed the child in chambers regarding 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;
· The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s interest;
· The child’s adjustment to the child’s home, school and community;
· The mental and physical health of all persons involved in the situation;
· The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companion rights;
· Whether either parent has failed to make all child support payments, including all arrearages;
· Whether either parent or a member of the household has previously been convicted or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused or neglected child or if there is any history of domestic violence, substance abuse, or sexually oriented offenses;
· 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 resident outside the state;
· The parent’s ability to cooperate and make joint decisions on childrearing.
The court will do everything possible to lessen the emotional trauma on the children. If the parents cannot come to an agreement, the court will establish custody at its discretion. Although very unusual, the state statute permits the court to award custody of a child to a relative of the child instead of one of the parents if this is considered to be in the child’s “best interest.”
Another custody arrangement which is becoming more popular is shared (joint) custody or shared parenting. In this case the divorcing parents work out an an agreement—called a shared parenting plan–designating parental rights and responsibilities and addressing such issues as residence, schooling, child care, religion, medical needs and methods to resolve disputes without going back to court. The court looks at these factors when considering the shared parenting plan:
· The ability of the parents to cooperate and make joint decisions with respect to their children;
· The ability of each to encourage the sharing of love, affection, and contact between the child and the other parent;
· Any history of or potential for child or spousal abuse or other domestic violence;
· Geographic proximity of parents to each other;
· Recommendations of the guardian ad litem (GAL) of the child. A GAL is appointed in a divorce case at the request of either party or by the court’s motion. The GAL is a person knowledgeable in domestic relations law, who protects the interest of the minor children. A GAL is often appointed when child custody is contested.
If the custody situation winds up being sole parenting, the nonresidential parent will likely have visitation rights. The custodial parent should note that payment of child support and visitation are separate issues and one cannot be used to deny the other. Third parties, such as grandparents, step parents, or other relatives may also request visitation rights. The court will grant an order of parenting time, companionship or visitation. In deciding whether to grant these rights, the court considers:
· The prior interaction with the person requesting visitation if that person is not a parent, brother, sister or relative;
· The geographical location of each parent and the distance between the residences or residence of the person requesting visitation if not a parent;
· The child’s and parent’s available time, including, but not limited to, the parent’s work schedule, the children’s school schedule, the child’s and parent’s holiday/vacation schedule;
· The age of the child;
· The child’s adjustment to home, school and community;
· The child’s wishes;
· The health and safety of the child;
· The amount of time available to the child to spend with siblings;
· The mental/physical health of the parties;
· Each parent’s willingness to reschedule missed visitation to encourage the other parent’s visitation rights;
· Whether the parent or other party requesting visitation has been convicted or plead guilty to child neglect/abuse;
· Whether either parent has continuously or willfully denied the other visitation;
· Whether either parents has established or plans to establish a residence out-of-state;
· Any other factor in the best interest of the child.
In Ohio, divorcing partners with children will usually be required by the court to complete one or more classes aimed at helping the children adjust to the divorce. Before granting visitation, the court can also order completion of classes.
Modification of custody
Modification of child custody can be more difficult than obtaining custody. The legal standard presumes the status quo for the child. The parent seeking modification must demonstrate a change in circumstances from the original decree and prove that the proposed changes in custody would be more beneficial than harmful to the child.
Divorce is emotionally stressful and can become complicated especially with issues involving children. If you are undergoing a divorce in Ohio, you might want to consider legal help to guide you through the process. Our experienced Ohio divorce lawyers are familiar with the various courts and procedures of various judges in the area. They will do everything possible to ensure your rights are protected including your custodial rights.
Contact the Ohio law firm of Slater & Zurz at 1-888-534-4850 for a free initial consultation or fill out the FREE CASE REVIEW form here on our website.