Attorney David P. Drew is a competent divorce lawyer and can provide legal counsel on; divorce, child custody, visitation, alimony, spousal support, parenting, mediation, and other family law related issues pertinent to Ohio.
Ohio no longer uses the term "custody." Instead, Ohio courts "allocate the parental rights and responsibilities for the care of the minor children of the marriage." When making the allocation of the parental rights and responsibilities for the care of the children, the court must take into account that which would be in the best interest of the children.
How are parental rights and responsibilities allocated?
The court may allocate the parental rights and responsibilities for the care of the children in either of the following ways:
it may allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designating that parent as the "residential parent" and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the children and the right of the parent who is not the residential parent to have continuing contact with the children; or
the court may allocate the parental rights and responsibilities for the care of the children to both parents and issue a "shared parenting" order requiring the parents to share all or some of the aspects of the physical and legal care of the children in accordance with the approved plan for shared parenting. In a shared parenting situation, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the "residential parent," the "residential parent and legal custodian," or the "custodial parent" of the child.
What is "shared parenting?
" Shared parenting is the term Ohio uses for what is sometimes commonly known as "joint custody." The court may allocate the parental rights and responsibilities for the care of the children to both parents and issue a shared parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the children in accordance with the approved plan for shared parenting. It does not necessarily mean an equal, 50/50 division of time with the children, child support or any other of the issues dealing with the children.
How does the court determine what is in the "best interest of a child" when allocating parental rights and responsibilities?
In determining the best interest of a child the court considers all relevant factors, including, but not limited to:
- The wishes of the child's parents regarding his/her 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 his parents, siblings, and any other person who may significantly affect the child's best interest;
- The child's adjustment to his home, school, and community;
- The mental and physical health of all persons involved in the situation;
- The parent more likely to honor and facilitate visitation and companionship rights approved by the court;
- 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;
- Whether either parent previously has been convicted 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 previously has been convicted of or pleaded guilty to a charge of domestic violence and whether he/she 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;
- Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent his or her right to visitation 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.
To assist the court in making these determinations, prior to trial, the court may order an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations.
How does the court determine if it is going to grant shared parenting?
If at least one parent requests that the court grant shared parenting the requesting parent must submit a proposed shared parenting plan which must include proposed provisions covering all factors that are relevant to the care of the children, including, but not limited to, provisions covering factors such as physical living arrangements, child support obligations, provision for the children's medical and dental care, school placement, and the parent with which the children will be physically located during legal holidays, school holidays, and other days of special importance. The court can order the parent not requesting shared parenting to submit a proposed parenting plan. If both parties agree on shared parenting, they can submit a joint shared parenting plan.
The court must then review the proposed plan or plans and determine whether shared parenting is in the best interests of the child or children and if so whether which plan or plans submitted is in the best interest of the child. Modifications may be made to the plan if ordered by the court.
When determining whether shared parenting is in the best interests of the child or children the court must take into consideration all of the factors listed in FAQ #3 above plus, the court shall consider:
- The ability of the parents to cooperate and make decisions jointly, with respect to the children;
- The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
- Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
- The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
- The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.
Can an allocation of parental rights and responsibilities be modified?
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, his/her 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. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
- The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
- The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
- The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.