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Ohio Law Prohibits Courts from Using Military Service to Justify Modifying Child Custody Orders

Amendments to the Ohio Revised Code enacted on June 9, 2011 provide for additional court protection for the state’s military men and women who are sharing parental rights and responsibilities following the termination of marriage.

Q: What is the underlying purpose of this law?
A:
 The purpose is to prohibit any court from using military service, including deployments, to justify modifying an existing child custody order. The law now allows an active-duty service member to get a temporary order for parenting time modifications. It also says that any service member may ask the court to grant an order allowing a relative or someone else with a close bond to the child(ren) to take over visitation rights temporarily. The intent of such an order is to preserve the bond between children and their deployed parents, and to protect extended family relationships.

Q: I am the divorced parent of one child, and I’ve just been called for active military service. Must I notify my former spouse?
A:
 Yes. If a court has allocated parental rights and responsibilities between you and your former spouse (or if such an allocation is pending), you must notify your child’s other parent that you have been called within three days of receiving the military service order.

After you’ve notified your former spouse, either of you may ask the court for a hearing to expedite an allocation or modification proceeding so the court can issue an order before your active military service begins. 

The court must schedule and hold a hearing no later than 30 days after receiving the application, and must also give the case calendar priority and handle the case as quickly as possible, especially if special circumstances require a speedy decision.

Q: Under what circumstances will a court modify an existing decree allocating parental rights and responsibilities?
A:
 In the past, family courts could consider active military service as a “change in circumstances” that would, by itself, allow custody decrees to be modified. Current law prohibits this.

The law now says that the court can modify a prior decree allocating parental rights and responsibilities if the court determines that circumstances have changed for the child, the child’s residential parent, or either of the parents, and that modification best serves the interest of the child. Although future active military service may constitute a change in circumstances, it cannot be used as the only justification for modifying a prior decree.
 
Q: Can the court issue a “temporary order” modifying parental rights and responsibilities while I am on active duty?
A:
 Yes, but the temporary order must say that it was issued due to your active military service. When your active service ends, you must properly notify the court. Within 10 days of that notification, the court must terminate the temporary order and reinstate the prior order, unless your child’s other parent demonstrates that resuming the prior order is not in your child’s best interest.

If you were already involved in a legal proceeding concerning a temporary order for allocating or modifying parental rights and responsibilities when you were called for military service, the court must let you participate in the proceeding and present evidence by electronic means, including communication by telephone, video, or Internet. Within 30 days after your active military service ends, you must notify, in writing, the court, the child support enforcement agency, and the other parent of the termination date of your active military service

Q: What types of “temporary orders” can I request if I’m called for active duty?
A:
 You may apply to the court for any of the following temporary orders for the period extending from the date you leave to the date you return:
 (a) An order delegating all or part of your parenting time with your child to a relative or to another person who has a close, substantial relationship with the child (assuming the delegation is in your child’s best interest);
 (b) An order saying that the other parent must make the child reasonably available for parenting time with you when you are on leave from active military service;
 (c) An order saying that the other parent must facilitate contact, including telephone and electronic contact, between you and your child while you are on active military service.

Q: What factors does the court consider when weighing whether delegating parenting time to a third party is in the child’s best interest?
A:
 A court considers all relevant factors, such as the child’s: 
• prior interaction and interrelationships with the third party;
• geographical location of the parties’ residences;
• age; 
• adjustment to home, school and community; 
• health and safety;  and
• any other related factors. 

Even if you delegate some or all of your parenting time to another person (a third party), that does not mean the other person can automatically have visitation or companionship rights other than those specified under the order. 

4/30/2013

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Marilee C. Boroski of the Columbus law firm, Sowald, Sowald, Anderson & Hawley.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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