Tag Archives: legal blindness
Under Ohio law, once a parent is designated as the residential and custodial parent, the prefernce is to maintain that person as the custodial parent. The Courts want to avoid a perneial tug-of-war between the parents with the children caught in the middle. Courts do not want to see motion after motion filed by the parents, but would rather have the custody established and settled for the benefit of the children. However, when it is appropriate, a post-decree motion for a reallocation of parental rights should be filed. The issue, then, becomes what must a parent prove in order to gain custody of their children from the other parent.
When the issue of custody is originally litigated during the divorce proceeding, the parents stand on equal footing as to custody and the standard is simply what would be in the “best interest of the child.” The best interest standard is a broad concept with 10 factors listed in the statute for the Court to consider.
The situation changes in the context of a post-decree motion. Unlike when the issue of custody was originally litigated during the divorce, the burden is higher on the petitioner. The parents no longer stand on equal footing as the preference or presumption is to maintain the status quo. For that reason the legal standard is more involved, which are:
1. That there has been a change in circumstances of the residential parent or the child since the original decree was issued (note: a change in circumstances of the non-residential parent does not matter). There must be some change that warrants a reallocation of parental rights and responsibilities. case law has been developed which provides lawyers an idea of what the courts consider to be a substantive change in circumstances.
2. That the change of custody is in the best interest of the child (and the court is again guided by the factors set out in the statute).
3. That any harm to the child by disrupting the status quo will be outweighed by the benefits of the change.
This is a condensed expression of the legal standard, and anyone wishing to have custody altered should consult an attorney, but hopefully it will give our readers an idea of what they must show if they want to pursue custody of their child.
Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation (937) 432 – 9775.
This post is directed to the many “do-it-yourselfers” in the residential leasing market. This post is not meant to help the large, multi-dwelling landlords with full-time management and legal staffs. No, this is for the guy who gets transferred to another city and decides to rent out that house or condo in his current location rather than deal with market, or those budding real estate mogulists who’ve squirreled away money from their day job to have acquired 3 or 4 properties rented around town. These are the landlords that will most likely deal directly with tenants, and those that are least prepared to do so, considering their skills lie in engineering, or medicine, or building decks, or anything besides leasing residential housing. So here is a quick checklist for those who play landlord on the weekends:
1) Make sure to reduce the lease agreement to writing if the tenancy period is going to last over a year. You should always reduce your agreements to writing in order to prove the deal anyway, but oral tenancies lasting longer than a year are not even enforceable.
2) Never threaten to physically remove the tenant or lock the tenant out of the premises, even if they have failed to pay rent. Self-help is completely illegal in Ohio. Even if you can do so peacefully, you are never allowed to personally dispossess the tenant from the premises. The only legal way to evict a residential tenant in Ohio is through the statutory procedures proscribed in O.R.C. Sec. 2913, and the eviction must be sanctioned by a court in all circumstances.
3) You have a duty to keep the premises in a safe and habitable condition. This duty is not negotiable and you cannot shift this duty to the tenant, even in exchange for lower rent. It is ultimately the responsibility of the landlord to ensure the premises is up to building, housing and health codes, and at all times remains in habitable condition
4) Never retaliate against a tenant should they report code violations. You could be open to damages and attorneys fees if the court finds that you initiated eviction proceedings in retaliation for the tenants reporting alleged code violations.
5) Make sure to carry-out each duty the law requires of you under the Landlord-Tenant Act (O.R.C. Sec 5321). Most of the duties are self-evident and require only that you conduct yourself with basic human decency in the leasing of property, but you should look them over nonetheless.
6) If you intend to evict the tenant for the non-payment of rent or other default, make sure you provide the required Three-Day notice to vacate, required under state law before you do anything else. Do not file the eviction action in court until you have first provided the tenant with a notice to vacate, and then have waited at least three days. The court will lack jurisdiction to hear the eviction action unless the tenant is given the notice.