If you are ending your marriage or suing for custody of a child born outside of marriage, you should know about Ohio’s guidelines for determining court-ordered custody and parenting time arrangements. It is wise to proceed very carefully with advice from a family law attorney when dealing with these issues.
Q: My spouse and I are divorcing in Ohio. How will the court determine which of us will have custody of our children?
A: Ohio recognizes two custodial arrangements: sole custody and shared parenting. The difference between the two is the decision-making rights of the parents. In a sole custody arrangement, one parent makes decisions and takes action about the care and welfare of the child, including: medical care, obtaining health insurance, enrolling the child in school, and making decisions about extracurricular activities and religious upbringing. In a shared parenting situation, both parents have the same legal right to discuss and make final decisions for the children.
Many Ohio courts begin by presuming that most cases will result in shared parenting, where both parents are actively involved in making major decisions for their children, particularly if the children are older or if the parents made joint decisions about the children before divorce or custody litigation.
Ohio courts consider the “best interests of the children” to determine whether sole custody or shared parenting is appropriate. The court takes into consideration many factors, including: 1) the wishes of each parent and the children; 2) how comfortable the children are in each parent’s home, school or community; 3) whether one parent has withheld the children from the other parent; 4) whether the parents have difficulty communicating about decisions affecting the children; 5) the mental and physical health of the parents and the children; 6) whether one parent is planning to move (especially if the move is far away or out of state); and 7) the recommendation of a guardian ad litem involved in the case.
Q: What are our options for setting a parenting time schedule?
A: In addition to determining whether parents should make joint decisions regarding their children, Ohio courts also must determine when both parents will see their children (called “parenting time”). Most Ohio courts have a “model visitation or companionship schedule” that suggests a parenting time arrangement. Although each court schedule is different, generally, the children will live primarily with one parent and see the other parent every other weekend as well as additional time during the week.
When possible, it is best for parents to agree to tailor the parenting time schedule around their particular family’s needs. For instance, some parents may agree to an alternating week schedule where the children spend one week with one parent, and then live with the other parent the following week. Research suggests it is better for young children to see both parents more frequently during the week, so some parents of young children may decide to follow a schedule where the children go from one home to the other every two to three days (including alternating weekends). Such a schedule may also work well when both parents work.
Regardless of the parenting time schedule, both parents can attend school events and their children’s extracurricular activities. These occasions provide additional time for parents to have contact with their children and support their children’s interests.
Q: My partner and I are same-sex parents, but we are not married. Do we need to do anything to ensure we both have equal rights to our children?
A: Since the U.S. Supreme Court’s Obergefell v. Hodges decision in June 2015, all states recognize marriage between two same-sex partners. In Ohio, children born during the marriage of same-sex couples have two legally recognized parents. However, Obergefell does not create a parent-child relationship for children born to unmarried, same-sex couples, or for children born before the couple’s marriage.
In same-sex families where a child was born before the marriage, or where the partners are not married, the parent without a biological tie to the child is essentially a legal stranger to the child. (The same is true for fathers of children born outside marriage in heterosexual relationships). This means that, if the biological parent dies, the child could be taken away from the other parent, unless steps have been taken to establish a parent-child relationship. Until Ohio law catches up with societal changes, same-sex families should take steps to establish a legal relationship between the non-biological parent and the child. The non-biological parent can establish a legal relationship with the child by adopting the child or by asking a local court to provide a judicial order granting custody and decision-making rights.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorneys Scott N. Friedman and Elizabeth A. Johnson, both of Friedman & Mirman Co., L.P.A. in Columbus.