Tag Archives: Dayton Child Visitation Lawyers

Can the Child choose which Parent they want to live with in Ohio?

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,child_support_ohio_termination 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.

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Can I Increase Visitation With My Child As Opposed to Filing for Custody?

kideatinghotdogWe have previously posted on the topic of filing a motion to change custody of minor children from one parent to the other (a motion to “reallocate parental rights and responsibilities”).  As was discussed in that post, the petitioning parent that wants to become the custodial parent has the burden to prove that there has been some substantive change in circumstances of the current custodial parent or the minor child (not the petitioning parent’s circumstances).  This can be a rather high burden for the petitioning parent to meet, and if the child appears to be doing alright in the current situation, the chances of success are not that great, even if the petitioning parent’s home would be a better destination for the children. Courts are loath to shift the children around after custody has been established, and therefore, a change in circumstances is needed.  Once the parent shows that there is such a change, he or she must demonstrate that a change in custodial status would be in the children’s best interest.  If the parent cannot first adequately show a change in circumstances, there is no need to even evaluate the children’s best interest.

However, what if the petitioning parent does not want to obtain legal custody, but rather wants to merely increase visitation with the children?  Although the motion would still be considered a motion to reallocate parental rights and responsibilities, the standard for modification of the prior Court Order is not as high.  The petitioning parent need not show that there is any change in circumstances in order to prevail on a motion to increase parenting time (“Visitation”).  Rather, all the petitioning parent must do is demonstrate that increasing visitation is in the child’s best interest.  Essentially, a petitioning parent skips straight to the best interest issue, and never has to show that something has changed with the custodial parent or child.  Motions to increase parenting time are common and are often granted, considering that increasing visitation would not fundamentally disrupt the children’s life and more contact with a parent is in most cases beneficial to the child.

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Can a child get SSI in Ohio?

Can a Child Qualify for Social Security Disability Benefits?

Many parents and guardians with children under the age of 18 wonder whether their children could qualify for Social Security disability benefits.  Disabled children under the age of 18 can qualify for benefits under the Supplemental Security Income (“SSI”) program, which is administered by the Social Security Administration, depending on the nature of their disabilities, on their income, and on the resources available to them. According to 42 U.S.C. § 1382c(a)(3)(C)(i), a child under the age of 18 is disabled if the child “has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”  In simpler language, a “disability” for purposes of SSI benefits must be a very serious medical condition that will last for at least one year.  For example, a child who suffers from partial or total paralysis, or from mental retardation, could qualify for SSI benefits.  A child with a broken leg, however, would likely not qualify.

In addition to satisfying the definition of “disabled,” a child may not earn more than a certain amount from employment.  42 U.S.C. § 1382c(a)(3)(C)(ii) states that a child under the age of 18 who “engages in substantial gainful activity” does not satisfy the definition of “disabled.”  This means that a child who is employed and who earns more than $1,000.00 per month from employment would not qualify for SSI benefits in 2011 (the limit on a child’s total monthly income changes every year).  At the same time, a child who is unemployed, or who is employed but earns less than $1,000.00 per month, could qualify.

Further, a determination of a child’s eligibility for SSI benefits also involves the income of the child’s parents or guardians.  This part of the eligibility determination can be relatively complicated, but in short, a child whose parents or guardians could be described as among the working poor would probably qualify, whereas a child whose parents could be described as among the middle or upper class would probably not qualify (or would qualify for only minimal benefits).

Normally, a determination of eligibility can take three to five months.  Children with certain conditions, however, can qualify for immediate benefit payments while the determination is pending.  Examples of conditions that would qualify a child to receive immediate payments include cerebral palsy, Down syndrome, HIV infection, muscular dystrophy, total blindness and total deafness.

Although the Social Security Administration publishes a number of self-help guides regarding the eligibility of children for SSI benefits, the process of applying for SSI benefits can be complex.  If you have questions about whether your child could be eligible to receive benefits, then you should consider a free consultation with an attorney focusing in Social Security law.

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Can I Leave the State with my Child?

Often, people want to know whether they can leave the state with their child during or after a divorce.  Like many answers to legal questions, a good attorney will tell the client, “it moving_w_childdepends.”  Here is a very brief overview of the law and considerations.

Prior to the Divorce Process

If the two parents are still married and there has not been a complaint for divorce filed in any court of this state, Ohio law states that parents stand on equal footing as to custody of the children, and that both parents are considered the residential and legal custodian of the children.  This means that yes, technically, there is no crime involved for taking the children and moving to another state.  As a legal custodian, the parent that wants to move certainly can determine where and with whom the child shall reside.

However, it should be noted that while a parent that is the legal custodian of the children can move and relocate with his or her children, this fact may in fact impact a court’s later determination on how to allocate parental rights and responsibilities (custody and parenting time/visitation).  Some of the factors that a court is to consider is whether a parent is or is planning to establish a residence outside of Ohio, whether a parent is more likely than the other to facilitate and promote visitation, and finally, whether the other parent has been guilty of parental kidnapping.  Please note that although no criminal charges will follow, taking the children out of state may be considered “parental kidnapping.”

During the Divorce Process

When the parents are not yet divorced, but a complaint for divorce has actually been filed in an Ohio court, there still has not been a FINAL allocation of parental rights and responsibilities.   However, unless the parents are still residing in the same household, the Court will issue temporary orders as to custody and visitation.  The Court will normally award one parent the interim temporary custody of the children during the pendency of the case.  If the parent that was not designated as the temporary custodian takes the children, then that parent will be guilty of contempt of court for violating a valid court order.

Furthermore, it is very common and routine for both parents to seek and obtain temporary restraining orders during the pendency of the case.  Normally these restraining orders prohibit a parent from removing the children from the state of Ohio, except for vacations of 14 days or less.  Again, if the non-residential (temporary) custodian removes the children to another state, that parent will be in violation of a valid court order.

If a parent believes it is necessary to move to another state, that parent will have to file a motion requesting the court allow that parent to do so.

Again, this is a very brief sketch as to this subject and it cannot be urged strongly enough that any parent that wants to move out of Ohio consult an attorney to ensure that it will not negatively impact that parent’s case for custody or subject him or her to civil or criminal penalties.

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Are Gay and Lesbian Couples Disadvantaged When Seeking Custody in Ohio?

Gay and lesbian couples are often concerned that their “non-traditional family” will be a disadvantage in custody decisions. While technically this issue is never to be determinative of custody disputes, lest tgay_adoptionhe Court violate the Equal Protection Clause, many gay and lesbian couples feel that their sexual orientation played a role in the ultimate disposition of the Court.   Putting aside potential biases of certain judges, there is at least one case that seems to lend credence to those concerns.  In 2008, the Second Appellant District in Clark County decided a case by the name of Page v. Page in which the Court specifically stated that a homosexual relationship of a mother caused adverse affects to the minor children and warranted a change of custody from that mother to the father.  The facts of that case can be summarized as follows:

Four years after the mother was designated the residential parent of both children, the father filed a motion to modify the allocation of parental rights and responsibilities.  The common pleas trial Court granted the father’s motion and awarded him custody.  The appellate court held that the common pleas court did not err in finding that a change of circumstances occurred as there was evidence that, as a collateral result of the mother’s relationship with her same-sex partner, both children had experienced personality disorders, and therefore, modification of custody was in the children’s best interest. The court determined that the adverse collateral effects of the mother’s relationship with her partner and the partner’s role in the children’s lives showed little room for improvement in the future.

While the Court was careful to say that it was not basing its decision on the simple fact that the mother was a lesbian, but rather the collateral affects that her relationship had on the children, it should give pause to the gay and lesbian couples fighting for custody.  This is something to keep an eye on in the future as more and more gay and lesbian couples fight for custody of one of the partner’s minor children.

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