Tag Archives: constitutional rights
Under current Ohio law, grandparents are permitted to petition the court for visitation rights with respect to their grandchildren. One would think that such a petition would not be necessary, but, unfortunately, more than we would like to think grandparents are prevented from seeing thier grandchildren. Quite frequently, grandparents turn to the courts in order to have the opportunity to spend time with their grandchildren. This often comes up as a problem when a couple divorces and whomever is chosen as the residential parent does not want his or her former in-laws to visit the children. Therefore, grandparents need to be aware that if the Court finds that it is in the child’s best interest to have visitation with his or her grandparents, they do have legal recourse. However, it must be noted that the Court is required to give some special weight to the wishes of the parents as to whether the grandparents are granted the right to certain visitation with the children.
This does not mean that the parents wishes control the Court’s decision, but that if the parents feel strongly against visitation, the court must consider that fact. But even if the residential parent does not want to allow the visitation, the Court can , and often does, grant the visitation if it is in the best interest of the child. There are specific stautory provisions that cover the visitation rights of grandparents in Ohio, so you should seek the advice of counsel to determine if your case is worth pursuing.
Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation (937) 432 – 9775.
It happens all the time. A client will walk into my office to discuss a criminal matter and even before I can start the preliminary questioning about the situation, the client exasperatedly proclaims, “the police did not read me my rights.” Usually, the client believes that this is a case-winning fact and one that I ought to care much about. However, the truth of the matter is that the police do not have to read the widely-known “Miranda rights” to each and every person they arrest. And even if they do violate the person’s 5th Amendment rights, this may not have any impact on the ultimate outcome of the case.
The reason is that under current constitutional law, the police only have to read the Miranda rights when they are conducting “custodial interrogation” of the suspect. That is, if the police do not attempt to question the person about a crime, they do not have to advise the person that they have the right to remain silent, to an attorney, and so on. Simply asking an arrestee his name and where he lives would not qualify as “interrogation.” The police must be attempting to elicit inculpatory information from the suspect about a possible crime in order for it to be said the suspect was “interrogated”.
In short, it is only when two distinct criteria are met that the Miranda requirement is triggered: (1) the suspect must be in “custody” (a very fact specific inquiry) and the (2) the police must attempt to question the suspect about a crime they are investigating. If neither of these are satisfied, there is no Miranda violation. For instance, if an arrestee volunteers statements to the police, sometimes done as a last ditch effort to avoid arrest, the police and prosecutor are completely free to use those statements at a later trial, even when the defendant is never Mirandized. Because the police did not interrogate the suspect, but merely listened to what the suspect had to say on his own, one of the two necessary criteria discussed above are absent. Lesson to take from this: it is almost always true that talking to the police is a bad idea.
Furthermore, it is not that uncommon for the police to feel that they have no need to immediately question the suspect due to the fact he or she believes they have all the evidence they need in order to sustain an arrest (and ultimately, a conviction). Perhaps the officer witnessed the crime first-hand, or there are numerous witnesses at the scene who immediately point the finger at the arrestee. In either case, the officer may have no need to question the defendant and, therefore, no need to read the Miranda warnings at all. The bottom line is that not every person arrested has a constitutional right to have the Miranda warnings read to them, but rather only when they are subjected to custodial interrogation.
But this is not the end of the story. Let’s assume that the police in fact engaged in custodial interrogation and failed to properly Mirandize the suspect. This constitutional violation may not have any practical impact on the resolution of the defendant’s case. The remedy available for such a violation is not that the case is dismissed (as many people incorrectly believe), but rather that the statements obtained as a result of the violation will be excluded from trial. If the state has ample other evidence to sustain a conviction, the exclusion of these inculpatory statements will not make much of a dent in the overall strength of the state’s case. The state may not care that these statements are inadmissible given all of the other evidence it can still put before a jury. And this can obviously impact plea bargaining leverage as well. Now, of course, if the state’s case is weak and the statements are really needed in order for it to carry its burden at trial, then the police misconduct ends up being a huge chip that the defense can use during plea negotiations. And in rare cases, if the state’s case is so weak that without the use of the defendant’s statements it can not make out a prima facie case, the case may be dismissed upon motion.
So the next time you here someone complain that they were not “read their rights,” do not get the impression that they are out of the woods.
It is one of the most common myths that people maintain when it comes to child custody: Once a child reaches a certain age, that child can choose which parent to live with, right? Well, that is actually incorrect. However, this myth is based in history and actually grounded is truth. Under former Ohio law, once a child attained the age of 12 years old, that child had the power to choose which parent was to be deemed the residential parent and legal custodian of that child. However, under current Ohio law, minor children no longer have the ability to choose which parent they want to live with on a permanent basis. In other words, when the Court issues its final divorce decree which, among other things, allocates parental rights and responsibilities, it is not the child that determines which parent is to be the residential parent, even if that child is a teenager. Ohio law treats a 14 year old in the same manner as a 4 year old when it comes to determining which parent with be designated as the residential parent. And, like almost all issues involving minor children, the determination is guided by what is in the “best interest of the child”.
So, divorcing parents, remember that your child will not be choosing for or against you when it comes to custody issues. Rather, the Court will decide and you need to focus your energy on convincing the Court that it would be in the best interest of the child to live with you … do not work on convincing the child that he or she should choose you. Which, in truth, is not fair to the child anyway.
Last updated byon .