In Ohio the issues of child custody laws – child custody and visitation are two of the most difficult issues in a divorce proceeding. While the parents appear to be the focus of a custody battle because they are the parties that are being heard, the real focus in any custody battle is the child. As with most states, Ohio courts focus on what is in the best interest of the child when deciding custody disputes.
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