Clarity on compliance with parenting schedules for parties subject to a custody agreement and/or order was made on April 1, 2020 by Cuyahoga County Domestic Relations Court Administrative Judge Leslie A. Celebrezze.  Pursuant to the April 1, 2020 Journal Entry, “[p]arents who are subject to parenting time orders shall continue to follow them absent good cause shown; these orders remain in full force and effect.  Parties shall adhere to all holiday and spring break schedules as designated by their schools at the beginning of the school year regardless of the recent changes.”  A full copy of Judge Celebrezze’s April 1, 2020 Journal Entry may be found on the following link.  http://domestic.cuyahogacounty.us/pdf_domestic/en-US/COVID-19/COVID-19%20and%20Parenting%20Time%20Orders.pdf

To date, surrounding counties have not issued similar Journal Entries regarding compliance with parenting schedule orders set forth in a custody agreement.  That does not necessarily mean compliance with the parenting schedule should not be made during the effective timeframe of the stay home Order.  If you have any questions about Judge Celebrezze’s Journal Entry, or the impact of the stay home order with your particular custody order, please contact Dworken & Bernstein Co., L.P.A. at 440-352-3391 or visit our website at www.dworkenlaw.com.

Understanding Stepparent Adoption

Stepparent adoption gives the stepparent all of the rights and obligations of a natural parent. Most people considering step-parent adoption focus on the rights. When a step-parent is an active participant in raising a child, it’s only natural that both the step-parent and natural parent would want the step-parent to be able to speak to school officials, authorize medical care, sign permission slips, and generally conduct the business of being a parent.

Many people also use step-parent adoption as a means of ensuring that the step-parent/child relationship will continue if the natural parent passes away, becomes incapacitated, or is otherwise unavailable.

However, many people fail to consider other ramifications of adoption, such as the fact that step-parent adoption survives divorce. That means not only that the step-parent who has adopted a child may be liable for child support after a divorce, but also that he or she will be entitled to parenting time—perhaps even primary physical custody. Many step-parents and natural parents embrace this commitment, but it is important to ensure that everyone involved fully understands the ramifications of adoption.

The Ohio Stepparent Adoption Process

Unlike many other states, Ohio does not provide a simplified or abbreviated process for step-parent adoption.

To further complicate matters, specific requirements and procedures may differ somewhat from one Ohio county to another.

For example, Cuyahoga County provides a three-page list of items and documentation that must accompany a petition for step-parent adoption with little or no explanation of many of the listed items and requires that a licensed adoption agency be involved in any adoption other than by a biological relative.

Lake County provides clearer instructions and downloadable forms, but the list of required documentation from varied sources can nonetheless be daunting.

Both Lake and Cuyahoga counties require home studies and letters of recommendation, but the specific requirements such as number, subject matter, and source of the letters, differ.

Work With an Experienced Adoption Lawyer

Working with an experienced Ohio family law attorney can help ease the process and ensure that you don’t overlook technical requirements or make small mistakes that could delay or derail the step-parent adoption process. Your attorney can also explain the long-term legal ramifications of adoption, including step-parent adoption.

Having an experienced legal advocate at your side is particularly important if the adoption is contested, there are difficulties or irregularities involving the consent of the other parent, or there are any issues in the would-be adoptive parent’s background that may raise concerns with the court or the agency conducting the home study.

To schedule a consultation with one of our experienced adoption attorneys, just call 440-946-7656 or fill out the contact form on this site.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

What some may not know (or know and don’t take seriously enough) is that making payments the wrong way can also get you in hot water.

Use of Child Support Payment Central (CSPC)

One of the most common ways Ohio child support payors create trouble for themselves is by circumventing the state disbursement system. The vast majority of Ohio child support payments are automatically deducted from the payor’s wages and forwarded to the CSPC by the employer. However, there are exceptions. For example, most self-employed parents are not subject to wage garnishment and must take responsibility for making child support payments.

Those payments must nonetheless be made through the CSPC, and that’s much more than a technical guideline. Under Ohio law, payments made directly to the custodial or recipient parent are considered gifts. Thus, a parent who opts to write a personal check to the child’s other parent or provide cash rather than going through the CSPC risks getting no credit at all for those child support payments. In other words, a parent who has made direct payments outside the system will be considered delinquent in his or her child support obligations.

Too often, noncustodial parents who have reason to want to make a direct payment convince themselves that it will all work out as long as they create a record—for example, have a canceled check or a receipt from the custodial parent. But, that generally won’t prevent the payment from being treated as a gift rather than being credited toward the child support obligation. Consult your attorney before making any deviation from the court-ordered payment system.

Other Types of Domestic Support

Spousal support (also known as “alimony” or “spousal maintenance”) is typically also paid through the Office of Child Support. However, the court may permit spousal support to be paid directly to the recipient. In making direct payments, it is important to create a record that will allow you to establish that maintenance payments have been made on schedule, and any missed payments have been made up.

Some tips for ensuring that support paid directly is properly credited include:

• Avoid paying in cash: not only is it more difficult to prove that you’ve made cash payments, but it is easier for one or both parties to become legitimately confused about what was paid when
• Understand how money orders work: many people assume that a money order is as good as a check for tracking purposes, but the process for proving that a money order was received and cashed is cumbersome and may take several weeks. If you do use money orders, be sure that you keep your receipts and clearly note which payment the money order covered, as well as when and how it was delivered.
• If you must pay cash, keep receipts: if you do make cash payments, maintain a careful record. Never send cash through the mail or drop it off in a mailbox. Hand the cash directly to the recipient, and get a detailed receipt. That means not just “Received $300 from John Smith,” but something more like, “Received $300 in cash from John Smith on June 2, 2019, for June 1-14 spousal maintenance.”

Whatever method you use, it’s to your advantage to keep an organized record. If you regularly pay your support through documentable means such as a check, you will likely be able to reconstruct the record if you must. But, there’s no good reason to create that stress for yourself and risk missing pieces when protecting yourself will take just a minute or two each time you make a payment? Recording the date you sent or delivered the payment, the form of the payment (cash, check, money order, etc), the amount, the check or money order number, and how it was delivered will make it quicker and easier to demonstrate that your payments are up to date if a dispute ever arises.

Understanding Your Rights and Obligations

Many people obligated to pay child support or spousal maintenance get into trouble because they didn’t fully understand the process, or didn’t recognize the importance of following court-ordered procedures and maintaining good records. Your divorce lawyer can help ensure that you have the information you need.

If you’re considering divorce or your spouse is filing for divorce, learn more about how an experienced divorce attorney can help protect your rights, your assets, and your relationship with your children. Just call 440-946-7656 or fill out our contact form.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

A divorcing couple who shares a business will have two separate decisions to make: how to keep the business running profitably while the divorce is underway, and how to maintain or dispose of the business post-divorce.

Your best chance of preserving the value of the business and securing your financial stability is to assess the situation objectively and attempt to make the same rational, unemotional type of decisions you would in any other aspect of the business.

Options for a Co-Owned Business in Divorce

In terms of longer-term resolution of the business, the couple must first decide whether they want to continue co-owning the business.

Some divorced couples do continue to successfully share business interests and even work together. But, it’s not for everyone, and requires hard, realistic consideration.

Whether legal changes will be required to do so depends on the type of business entity and how the couple holds the business and/or its assets. And, allocation of interest in the business will have to be considered not just in isolation, but also in the context of the division of assets in the divorce case.

If the couple chooses not to—or is unable to—continue sharing the business, then one or both parties will have to transfer his or her interest in the business.

Allocation of the Business in a Property Settlement

It’s possible that the business will be awarded to one party or the other in the divorce case, or that the couple will reach a resolution that allocates the business to one spouse and balances that out by giving the other a disproportionate share of other assets. Depending on the type of business entity involved and how the business is held, this may or may not require a transfer of interests or even dissolution of a partnership.

Sale of One of Both Parties’ Interests in the Business

One party may, perhaps as a part of the divorce settlement agreement, buy out the other’s interest in the business. However, that’s not the only sale option available.

Other possibilities include one party selling his or her interest to a third party and an outright sale of the business.

Where a third party sale is in play, the parties will typically have to agree on a valuation or present evidence that allows the divorce court to determine fair market value for the sale. If the parties are unable to agree, or simply lack the requisite expertise to agree on the fair value, one or more experts may be necessary to assess the value of the business.

Work with a Law Firm that Understands Divorce and Business

Not every divorce lawyer has the knowledge and experience necessary to manage the disposition of a shared business in a divorce case. If you are divorcing or considering divorce and share a business with your spouse, it is to your advantage to work with a law firm that has the knowledge base and resources to manage all aspects of your case.

In Northeast Ohio, Dworken & Bernstein Co., L.P.A is that law firm

Call 440-946-7656 or fill out the contact form on this site right now to schedule your consultation.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

Does It Take Long to Get Divorced in Ohio?

The divorce process can be stressful, and no one wants a divorce case to drag on. But, you also don’t want to cut corners when important decisions are in play. Decisions like who keeps the family home, who the children spend most of their time with, and who is responsible for debts incurred during the marriage.

The ease or difficulty of resolving those issues is the most significant factor in determining an Ohio dissolution of marriage or divorce timeline. In fact, Ohio law provides for a different, more streamlined process for those couples who are able to resolve all issues by agreement.

Contested v. Uncontested Divorce Timeline

Ohio Dissolution of Marriage Timeline

In Ohio, couples seeking to end a marriage have the option of using the uncontested process known as dissolution of marriage.

To begin a dissolution of marriage proceeding, the couple files a joint petition. The dissolution process is generally quicker, cheaper, and less stressful than a contested divorce. However, dissolution requires that the parties are able to agree on all issues.

If the court determines that the agreement the parties reach meets the appropriate legal standards, such as being in the best interests of any minor children, an Ohio decree of dissolution may be entered as soon as 30 days after the filing the petition for dissolution.

The Ohio Supreme Court guidelines say that a dissolution case should be concluded within 90 days from the date of filing.

It’s important to note, however, that in a dissolution case much of the work happens before the petition is filed. How long it actually takes to obtain a dissolution decree from the time you decide to end your marriage will depend on several factors, such as:

• How quickly you seek legal representation to get the process started
• To what degree are you and your spouse willing and able to work together to resolve issues
• The simplicity or complexity of the issues in your case

When both parties are committed to finding an amicable resolution, the pre-petition process can move swiftly.

Ohio Divorce Timeline

When the parties can’t reach an agreement and take advantage of the dissolution process, one spouse or the other will file a petition for divorce.

A divorce case may ultimately be resolved by agreement, or some or all of the issues may be resolved by the court after a contested hearing. The same factors referenced in connection with a dissolution case will determine how long a contested divorce case takes to resolve.

The more willing and able the parties are to negotiate effectively, the more quickly the case can move forward. Taking advantage of mediation can also speed up the divorce process. However, even when each party is negotiating in good faith, complex divorce cases can take time to resolve.

The Ohio Supreme Court guidelines say that a contested divorce case without children should be resolved within 12 months of filing, and a case involving children within 18 months. However, the most complex and contentious Ohio divorce cases may take longer to finalize.

Talk to an Ohio Divorce Lawyer as Soon as Possible

Whether you are near an agreement with your spouse and plan to pursue the dissolution process or you are embarking on what may be a long, hotly-contested proceeding, one thing is certain: the sooner you get started, the sooner your case can be resolved.

Scheduling a consultation with an experienced Ohio divorce lawyer is the first step.

Allocation of Parental Rights and Responsibilities

In Ohio, what most people think of as “custody” and “visitation” is legally termed “allocation of parental rights and responsibilities.” While the specific details will vary from family to family, there are two basic structures for parenting orders. The court may designate one parent as the residential parent and legal custodian of the children, then specifically divide other rights and responsibilities such as visitation and child support. Or, if the parties request it, the court may enter a shared parenting order.

The court may accept a parenting plan submitted jointly by the parties, approve a parenting plan submitted by one party, or craft its own parenting plan. In making any of these determinations, the standard is the same: the best interest of the child or children.

The Best Interest of the Child Standard

In determining the arrangement that is in the best interest of the child or children, the court may consider any relevant information. However, Ohio law sets forth specific factors to be considered. These include:

• The wishes of the parents
• The wishes and concerns of the child
• The child’s relationship with family members, including parents, siblings, and anyone else who significantly affects the interests of the child
• The child’s adjustment to home, school, and community
• The mental health of everyone involved
• The physical health of everyone involved
• The likelihood that each parent will honor and facilitate the court’s order regarding parenting time
• Whether either parent has failed to make child support payments
• Any issues of child abuse or neglect
• Whether either parent has moved or intends to move out of state

Shared Parenting in Ohio

Generally, it is in the best interest of the children for each parent to remain involved, spending time wit the children and contributing to their upbringing. However, shared parenting only works if the parents are able to work together in the best interest of the children. Therefore, a court considering a shared parenting order will also consider factors such as:

• The ability of the parents to cooperate and make joint decisions regarding the children
• The ability of each parent to encourage and foster the children’s relationship with the other parent
• Any history of or potential for abuse
• The geographic proximity of the parents to one another
• Recommendations of the guardian ad litem, if one has been appointed

Establishing Custody and Visitation in Ohio

Whether you’re negotiating an agreement with your spouse or fighting for your parental rights in court, the process is delicate and requires a thorough understanding of the legal and practical factors involved. Working with an experienced family law attorney can help to:

• Reduce stress by ensuring that you know what to expect at every turn
• Ensure that you have assembled the most important evidence
• Are prepared to negotiate effectively or present a convincing case in court
• Reduce tensions by negotiating through a legal representative
• Ensure that you fully understand the ramifications of your agreement

If you have children and are preparing to divorce or are in the process of divorce, give yourself the benefit of a seasoned advocate in your corner. Schedule a consultation with one of our experienced family law attorneys right now.

What is the Difference Between Divorce and Dissolution?

A dissolution of marriage action is a simpler, less expensive, and less confrontational means of ending a marriage in Ohio.

The Ohio Divorce Process

An Ohio divorce case is filed and served on the other spouse much like any civil lawsuit in Ohio. The spouse petitioning for divorce must allege and prove grounds for the divorce.

Under Ohio law, the only grounds for divorce are:

• Adultery
• Extreme cruelty
• Fraudulent contract
• Gross neglect of duty
• Habitual drunkenness
• One of the parties had a living spouse at the time of the marriage
• The non-filing spouse was willfully absent for a period of at least one year
• One of the parties procured a divorce outside the state, which released that party from his or her legal obligations but left the other bound
• The parties have lived separate and apart for an uninterrupted period of at last one year
• Incompatibility, unless denied by either spouse

It is notable that even when the parties have been separated for months, an Ohio spouse cannot obtain a divorce unless he or she can prove one of the listed fault grounds or the other spouse agrees that the couple is incompatible.

The process of obtaining a divorce can be drawn out, contentious, and expensive. Each party has the right to “discover” information about the other’s income and assets, and the spouses may disagree about the value of certain assets. Often, this process requires the use of expert witnesses to determine the value of the marital estate.

Ultimately, the court may be called upon to make a number of decisions, often over the objections of one party or the other. For example:

• Custody and visitation of minor children (technically described as “allocation of parental rights and responsibilities” in Ohio)
• Division of marital property
• Responsibility for marital debts
• The amount of child support payable
• Spousal support (more commonly known as “alimony”)

The Ohio Dissolution of Marriage Process

The key difference between divorce and dissolution is that there are no contested issues in an Ohio dissolution case.

There is no need to prove fault, as the parties are jointly requesting that the marriage be dissolved. And, a petition for dissolution of marriage isn’t filed until the couple has resolved all of the relevant issues, such as custody, child support, visitation, the division of property, responsibility for debts, and any spousal support.

This process is more cooperative and often less expensive than the divorce process. For example, there is no formal discovery process available in a dissolution. Rather, the parties must voluntarily share whatever information is necessary to reach an agreement.

Choosing Between Divorce and Dissolution

The dissolution of marriage process offers obvious advantages, but it isn’t an option for every couple. To use this streamlined, cooperative process, the couple must be able to resolve every issue before submitting the petition.

That doesn’t mean, though, that the divorcing couple must sort out all of the legal, financial, and procedural details on their own. Often, an experienced divorce and dissolution attorney can assist by guiding a party through the issues and drafting an agreement. In fact, it is possible to convert a divorce proceeding to a dissolution if the couple is able to reach agreement on all outstanding issues.

Whether you are attempting to resolve your issues amicably and hope to pursue a dissolution, or you are in conflict with your spouse and expect to use the divorce process, your first step should be to talk with an experienced Ohio family law attorney. You can get started right now by scheduling a consultation with one of our divorce and dissolution lawyers.

Equitable division

In thе ѕtаtе of Ohiо, mаritаl рrореrtу is ѕubjесt to an “equitаblе diviѕiоn” uроn divоrсе.

“Equitable division” does not mean that each spouse rесеivеѕ thе ѕаmе аmоunt in аѕѕеtѕ аnd рrореrtу; inѕtеаd, it rеfеrѕ tо whаt thе соurt bеliеvеѕ is a fаir аnd equitаblе diѕtributiоn of marital рrореrtу after taking into account some fасtоrѕ.

If one оr bоth ѕроuѕеѕ оwn a business, its value will nееd to bе determined аnd рrоviѕiоnѕ inсludеd in thе divоrсе ѕеttlеmеnt to еnѕurе thаt еligiblе аѕѕеtѕ from it аrе divided appropriately.

Additionally, pension рlаnѕ, 401(k) accounts, аnd оthеr retirement fundѕ must bе divided thrоugh thе filing оf a Quаlifiеd Domestic Rеlаtiоnѕ Ordеr (QDRO).

What constitutes equitability

In Ohiо, thе question оf what iѕ “equitаblе” focuses on fасtоrѕ such as:

• Thе length of thе marriage;
• The economic dеѕirаbilitу оf retaining marital assets as opposed tо ѕеlling them (in which саѕе thе spouses wоuld еquitаblу ѕрlit thе рrосееdѕ оf thе sale);
• Thе аррrорriаtеnеѕѕ оf аllоwing a сuѕtоdiаl раrеnt to rеmаin in the family home; аnd,
• Thе tax соnѕеquеnсеѕ аnd thе соѕtѕ оf ѕеlling mаritаl аѕѕеtѕ.

Thеrеfоrе, it iѕ аdviѕаblе tо speak to an experienced Ohiо divоrсе lаwуеr who саn wоrk сlоѕеlу with you tо еnѕurе your finаnсiаl interests are рrоtесtеd during divоrсе and thе diviѕiоn оf mаritаl рrореrtу.

Methods оf Mаritаl Prореrtу Diviѕiоn

When it comes tо thе рrосеѕѕ of dividing marital аѕѕеtѕ in a divоrсе, divorcing spouses hаvе ѕоmе diffеrеnt орtiоnѕ аvаilаblе.

While оnе option is to go tо соurt аnd lеt a judgе dесidе, this is usually not thе bеѕt орtiоn fоr either spouse. Evеn when ѕроuѕеѕ diѕаgrее оn whо gеtѕ whаt, pursuing a аmiсаblе resolution аllоwѕ them tо соntrоl the outcome and wоrking thrоugh thеir differences withоut judiсiаl intervention will tурiсаllу be fаr lеѕѕ соѕtlу thаn going tо соurt.

Aѕ аltеrnаtivеѕ to litigаtiоn, divоrсing ѕроuѕеѕ саn аlѕо seek to divide their mаritаl аѕѕеtѕ thrоugh:

Nеgоtiаtiоnѕ

Tурiсаllу, in Ohio, ѕроuѕеѕ will nеgоtiаtе thе diviѕiоn оf their mаritаl аѕѕеtѕ аlоng with thе оthеr аѕресtѕ of their divоrсе (ѕuсh as ѕроuѕаl ѕuрроrt and раrеnting rightѕ). Each spouse rерrеѕеntеd bу his or her attorney will wоrk toward a division of assets and debts that bоth can accept and which will соmрlу Ohiо lаw.

Mediation

If ѕроuѕеѕ are unаblе tо reach a рrореrtу ѕеttlеmеnt indереndеntlу, they саn еnliѕt thе help of a mеdiаtоr. Thе mеdiаtоr ѕеrvеѕ аѕ a nеutrаl third раrtу (but not аѕ a decision-maker) and hеlрѕ thе spouses еxрlоrе additional opportunities for соmрrоmiѕе.

Have Questions? Speak to an Ohio Divorce Attorney Today

Dividing mаritаl property iѕ a еѕѕеntiаl раrt оf the divorce рrосеѕѕ. Dо not make a mistake thаt соuld lеаvе you in a vulnеrаblе роѕitiоn. Contact one of our experienced and skilled Ohio divorce attorneys today.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. 

Laws and circumstances can differ and change. Please contact us for a personal review of your situation

When it comes to divorce, child custody issues are usually emotional and can sometimes become contentious. Unfortunately, parents often receive misinformation from well-meaning friends, co-workers, and relatives. There are many child custody myths, but here are seven common myths relating to child custody:

1. Mothers always receive custody.

   In past decades, many states ruled that custody of children under a certain age–usually those not yet in elementary school–was automatically awarded to the mother if the parents divorced. Most states, including Ohio, have since rejected this rule and require the court to determine custody based on what is in the child’s “best interest” regardless of gender. Some parents agree to let the mother have primary custody after divorce because she may have more time or is able to better meet the child’s needs. Fathers should never let myths about favoring the mother during custody stop them from seeking full custody of their children or shared parenting of their children.

2. Children choose which parent they live with once they reach a certain age.

   This is another popular myth. The courts in Ohio retain jurisdiction over custodial matters involving children until they reach eighteen years old. The court does say that any child exhibiting “maturity” may say who they feel should have custody, but the court is under no obligation to award custody based on a child’s preference. The term “maturity” is not defined by divorce statutes, but the court will often conduct an informal interview with the child(ren) if the parents request it or the judge feels that it is a good idea. It is a good idea to remember that a child’s preference is only one of the many factors used to determine the best interests of the child.

3. You can deny visitation if an ex doesn’t pay child support.

   There are several issues that can cause a parent to lose visitation rights or be ordered to have supervised visits. Non-payment of child support is not one of them. In the eyes of the law, child support and child visitation are two completely separate matters. The opposite is true as well.  A parent who is not allowed to visit his or her children is still obligated to pay child support if ordered to do so by the court.

4. No one with a history of domestic violence, mental illness, criminal convictions or substance abuse will get custody rights.

   Like mothers getting sole custody, this was often true in the past, but states have taken a more liberal view in these situations. The courts realize that an ongoing relationship with both parents is important and it is likely that even in these situations they will allow a parent to see their children. People who have struggled with these issues (with the exception of conviction for a sexually related crime) may still have options like supervised visits, especially if it can be shown that the parent is dealing with these problems. Courts are hesitant to terminate a parent’s rights altogether.

5. The police will enforce custody orders that aren’t followed.

   Custody order violations may include the other parent returning a child late or keeping the child overnight when they aren’t supposed to. Although courts expect parents to follow the custody orders, they and the police are not meant to be used as referees. Police officers are reluctant to get involved in divorce situations and do not have the authority to enforce a civil court order unless the situation develops into a criminal activity such as kidnapping. The law expects both parents to communicate. If you cannot resolve the situation between yourselves, remember that courts want provable facts, not allegations. Document violations and make sure that you have copies of your divorce agreement. Running to court with something minor–that does not actually harm the child–can often backfire. Normally a court will only change a custody agreement if one of the parents has made a violation that it considers serious–such as taking the child without alerting the other parent.

6. My ex and I can modify the custody agreement ourselves.

   Your children get older, situations change. What once worked may not work anymore. Exes will often informally make a change to a custody arrangement, altering visitation days or changing who pays for certain things. It’s admirable that you are open and communicating about your child’s needs, but modifications to arrangements can only be done by the court. If your informal changes are working out for your child, a judge can consider these changes in the modification agreement but is not required to do so. Your custody agreement is a legal document and only the court has the authority to modify these orders.

7. My ex has no custody rights, so I can move out of state without telling them.

   If you have a custody order from an Ohio court, the law requires you to file a notice of intent to relocate prior to moving out of state. The notice must be sent to the non-custodial parent and contain your new address–unless disclosing it is prohibited by another court order. If possible, you should at least try to obtain the consent of the non-custodial parent prior to filing anything in court. Even a parent without custody of their child still possesses rights and can ask for a hearing from the court. If you have already moved to another state, the other parent can ask the court to order you to bring the child back to Ohio. Either way, there will still be a hearing to determine if the move is actually in the best interests of the child.

Child custody issues can be complicated. Try to sort things out amicably, find out what your rights are and review your custody agreement often. Don’t hesitate to seek the counsel of a family law attorney. This will result in less conflict and will make things easier for those affected the most–your children.

This information is an excerpt from a series of blogs written by Jack Carney-DeBord, a Family Law attorney in southern Ohio.

To learn more about these or other child custody myths, contact the expert family law attorneys at Dworken & Bernstein.

In Lake County, call 440.946.7656

In Cuyahoga County, call 216.861.4211

Ohio child custody laws are written to protect the child’s best interest first and foremost. In most situations, it is in the best interest of the child to have both parents play an active role in the child’s upbringing. When both parties enjoy the rewards and responsibilities of being a parent, it benefits the child. To that end, Ohio custody laws encourage parents to work together to formulate a custody arrangement that benefits everyone in the family.

How Do Ohio Courts Decide Custody Issues?

Ohio family courts allocate parental rights and responsibilities for the minor children of parties in two ways. According to state statute, the court may “allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate 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.”

If the court allocates the parental rights to one parent, the court may, in its discretion, assign all of the legal rights to make major decisions for the child to that one parent. In other words, the residential parent may have the sole authority to make all decisions that affect the child with regard to the child’s health care, education, religion, extracurricular activities, and any other major factor that influences the child’s life.

The second choice for allocating parental rights is through an Ohio shared parenting plan. The same Ohio statute that provides for the appointment of a residential parent also provides for a shared parenting plan. Under this subsection, “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.”

However, before the court can allocate parental rights and responsibilities for the child to either parent, it must first determine what is in the child’s best interest. To do this, family court judges apply the “best interest test.” This “test” consists of 10 factors that the court must consider as it makes a decision whether to grant sole legal custody to the mother or to the father.

The factors used by Ohio family court judges when determining the best interest of a child regarding the allocation of parental rights and responsibilities are enumerated in Ohio Revised Code Section 3109.04. There are 10 factors; however, the statute specifically states, “the court shall consider all relevant factors, including, but not limited to” the following factors. Therefore, the court may also consider any other factor it deems relevant when determining the best interest of a child in addition to:

• The wishes of the parents regarding the care of their child;
• The wishes and concerns of the child, as expressed to the court, if the court has interviewed the child in chambers;
• The child’s relationship with his or her parents, siblings, and others who have a significant effect on the best interest of the child;
• How the child is adjusting to his or her home, school, and community;
• The physical and mental health of all parties;
• Which parent is more likely to facilitate and honor court-ordered parenting time, visitation, and companionship rights;
• Whether either parent has failed to abide by court-ordered child support payments, including any arrearage that may be owed by the parent;
• Whether either parent or a member of the household has been convicted or pleaded guilty to a criminal offense that resulted in child abuse or child neglect; was the perpetrator of said abuse or neglect; has been convicted or pleaded guilty to a domestic violence charge or a sexually oriented offense, or has caused physical harm to a member of the family or the household;
• Whether either parent was willfully and continuously denied the other parent’s court-order right to see the child; and,
• Whether either parent has moved to another state or plans to move to another state.

In addition to considering the above factors, the judge may also consider testimony and evidence presented by both parties. In highly-contested custody battles, parties will retain experts such as psychologists, medical professionals, psychiatrists, and educational professionals. The use of experts in a custody battle is designed to present the judge with relevant facts and opinions as to what is in the child’s best interest. It is completely within the judge’s discretion whether to rely upon any expert testimony when making his or her decision.

Is There A Better Way To Decide Custody In Ohio?

Ohio, like many other states, has shifted the focus of custody toward shared parenting rather than sole, legal, or residential custody. Numerous studies have found that it is in the best interest of the child to have both parents in his or her life as much as possible. One study found that “children from divorced families are better adjusted when they live with both parents at different homes or spend significant time with both parents compared with children who interact with only one parent.” Another study found that ” children fare better when they spend time living with both of their parents.”

It is a common belief by many experts in several fields that “children from birth to adulthood need time and attention from their parents.” Unfortunately, when parents decide to end their marriage, the children will obviously lose time with each parent. Therefore, parents must find a way to ensure that their children are spending an adequate amount of time with both parents regardless of the fact that the parents are not residing in the same household. Shared parenting is one way Ohio family courts make it possible for children to receive the benefit of having both parents play an active and continuous role in their lives.

What is an Ohio Shared Parenting Plan?

Shared parenting is similar to what other states call joint custody, time-sharing, parenting plans, and co-parenting. Ohio defines shared parenting under Oho Revised Code Section 3109.04 as a plan that includes “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.”

In a shared parenting situation, both parents are considered the “residential parent” for legal purposes. In other words, both parents share in making major decisions that affect their child’s life.

Just as the court must determine what is in the child’s best interest when deciding to grant residential custody, the court must also do the same if it is considering shared parenting. In addition to the factors used under the “best interest test,” the court will also consider the following factors before granting shared parenting:

• Can both parents cooperate with each other to make joint decisions regarding the child?
• Will each parent encourage a sharing loving, affectionate relationship with the other parent and encourage contact between the child and the other parent?
• Does either parent have a history of child or spouse abuse, domestic violence, or parental kidnapping or is there a potential for these actions?
• For practical considerations, what is the geographic proximity of the parents and will that hinder shared parenting?
• If a guardian ad litem has been appointed for the child, what is the guardian’s recommendation for shared parenting?

Does Shared Parenting Mean in Equal Time for both Parents and no Child Support?

When parents collaborate to propose a  shared parenting plan, it is often a more successful plan because both parents have contributed in working out the details for shared parenting. However, either parent may file a motion with the court requesting a Shared Parenting Decree and file an Ohio Shared Parenting Plan at least 30 days prior to the final hearing date. The time requirement may be waived by consent of both parties.

Even though the parents are sharing the parental responsibilities for their child, this does not necessarily mean that the child will spend exactly half of his or her time with each parent. In some cases, parents may be able to work out a parenting plan that is close to 50/50; however, that is sometimes impossible due to work and school schedules. It is better to develop a plan that meets the needs of the child, works with the schedules of both parents, and maximizes the time that the child spends with each parent under the circumstances.

For example, switching homes every other night or every few nights can be very disruptive for the child. The goal of a parenting plan is to provide stability for the child as well as access to each parent. For some families, this may result in the child switching homes every other week but for other families, the child may spend Monday through Thursday with one parent and Friday through Sunday with the other parent. The benefit of shared parenting is that it offers much more flexibility for the parents in deciding when the child will spend time with each parent. Traditional custody and visitation schedules can be very rigid and do not always meet the needs and demands of an active family.

Tips for Making Shared Parenting Work

Shared parenting is only as successful as the parents make it. If parents refuse to work together to resolve issues and problems, the shared parenting plan will fail.

Unfortunately, there are many negative emotions associated with a divorce. Parties may be angry, hurt, frustrated, and spiteful with each other; however, they must put their personal feelings for each other aside in order to do what is in the best interest of their child.

Shared parenting can only work if the parents are committed to doing whatever is necessary to resolve their differences in order to do what is best for their child.

Below are some suggestions and tips for making an Ohio shared parenting plan work.

• Never badmouth your ex-spouse to or in front of your child. Even though you may be angry with your ex-spouse, keep that to yourself.
• Custody is not a prize to be won. Your divorce is about you but shared parenting is about what is best for your child. Spending time with your child is not something you “win” at the expense of your ex-spouse. Set aside your need to “win” against your spouse and do what is best for your child.
• View shared parenting as a contract. Negotiate realistic terms for your shared parenting plan based on your schedule and the needs of your child. If it is better for your child to spend a little more time with your ex-spouse because of your travel schedule for work, that is okay because your child is the one who ultimately benefits from spending as much time with both of you as your schedules permit.
• Accommodate your child’s needs. Obviously, the needs and desires of a toddler are far different from the needs and desires of a teenager. Develop a shared parenting plan that meets your child’s needs and takes into consideration your child’s age-appropriate desires.
• Never use your child as a messenger. Communicate directly with your ex-spouse rather than placing your child in the middle of your conflict.
• Communicate details with your ex-spouse. School functions, medical appointments and reports, extra-curricular activities, etc. should be shared with your ex-spouse as soon as you receive notice. You want to know what happens in your child’s life when he or she is not in your home— your ex-spouse deserves the same consideration.
• Accept different parenting styles. You may not allow your child to eat snacks after dinner; however, your ex-spouse does not see the harm in allowing a healthy snack before bedtime. You and your ex-spouse are not required to have exactly the same parenting styles and rules; however, some consistency benefits the child. It is often very helpful to use a mediator to assist you and your spouse in establishing some “ground rules” that apply at both homes to reduce conflicts.
• Do not jump to conclusions. Children like to test boundaries and some children realize they can “play” parents against each other to gain what they want. Instead of accepting what your child tells you or jumping to a conclusion, communicate with your ex-spouse to keep everything on a neutral basis and avoid problems.

This information is an excerpt from a series of blogs written by Jack Carney-DeBord, a Family Law attorney in southern Ohio.

To learn more about shared parenting/child custody laws, contact the expert family law attorneys at Dworken & Bernstein.

In Lake County, call 440.946.7656

In Cuyahoga County, call 216.861.4211