Tag Archives: ohio
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.
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We had quite a reaction to the blog related to whether a child can choose which parent to live with upon the parents divorce in Ohio. Readers were surprised to learn that a child no longer had the ability to make such a choice, even if the child is 12 or 13 years old, and many were upset to learn this fact (evidently many were counting on this fact). Given the level of reaction, we thought that a few points of clarification were in order. While it is true that a child in Ohio no longer has the absolute right to choose which parent he or she would like to be deemed the residential and custodial parent, a child’s preferences can play a role in the Court’s ultimate decision on the matter.
Under current Ohio law, when a party requests (or upon the Court’s own motion) the minor child can be interviewed by the judge or magistrate in chambers (called an “in-camera” review) as to the child’s wishes and concerns related to custody matters. However, before the Court will take into account the child’s wishes or preferences regarding child custody, it must first determine whether the child has the maturity level to adequately express such feelings in a useful manner (what the statute calls “reasoning ability”).
Should the child have the requisite reasoning ability, the Court must then ask whether interviewing the child and asking him or her to express those wishes and concerns is actually in the best interest of the child, or whether asking the child to “choose” between parents would be detrimental to the child. In other words, although the Court is empowered to take into account the child’s preferences in determining custody matters, it will only do so if the child is mature enough to provide useful input and if asking the child to pick between parents would not be detrimental to the child’s well-being. So, in short, for those of you counting on the fact that your child wants to live with you as being the winning card against your ex, there is some benefit to that being the case, even if the law doesn’t allow the child to make the ultimate decision.
Many divorcing couples say that they want to work out Joint-Custody of their children, but wonder how to make that a part of the Divorce Decree. Well, the answer is that there is such a thing as Joint Custody under Ohio divorce statutes, but it is not actually called “Joint Custody”. Rather, in Ohio, what people generally mean by Joint Custody is something called “Shared Parenting Plan”. With a shared parenting plan, the parties agree to share the parenting responsibilities such that one parent is not designated as the sole residential parent and legal custodian of the minor children. The parties agree on some form of shared parenting plan and submit the plan to the court for its approval. If the Court accepts the shared parenting plan, then the plan is actually incorporated as part of the final divorce decree and both parents will have be deemed to have legal custody of the children, as opposed to one parent being the residential/custodial parent and the other having visitation rights only.
So if an attorney or a court talks about a shared parenting plan, remember that that is simply a term for what most people refer to as joint custody.
Most people think that when someone is indicted in Ohio for a felony that there are only two possible resolutions: (1) The person will plead or be found guilty, or (2) the person will be acquitted of the charges. That is not entirely true. Ohio has a couple of alternatives that an attorney could pursue on behalf of a felony criminal defendant. First, the attorney could file a motion for Intervention in Lieu of Conviction (“ILC”). In short, ILC basically allows a person who committed a crime due to their addiction to drugs or alcohol to receive treatment for their substance abuse problems instead of a conviction and prison time. But, ILC is not available for all felony defendants and a given defendant must first be found to qualify for ILC. Ask your attorney whether you qualify (ILC is not available for certain crimes and certain offenders). If the Court accepts the ILC it will then prescribe a particular treatment program for the defendant and suspend the pending criminal action. If the defendant does what the Court demands as far as the treatment goes, the Court will dismiss the charges and the defendant can avoid a felony conviction altogether.
The second possibility is something called “Diversion.” Diversion is similar to ILC in that if the defendant is accepted for diversion and completes the program, then ultimately he or she avoids being convicted of a felony. The defendant is “diverted” out of the criminal court system and given a chance to accomplish certain goals set by the program. If the defendant successfully completes the diversion program, then the Court will dismiss the charges. However, like ILC, only certain charges and certain types of criminal defendants are eligible for a diversion program.
I was looking over the Morrison & Nicholson Ohio Law Blog webstats the other day and noticed that quite a few people were looking for information about Ohio’s dissolution of marriage process and whether or not a lawyer is required. Thus, this blog entry was born: What is a dissolution and do I Need a Lawyer for an Ohio Dissolution of Marriage?
In most states the term dissolution refers to a traditional divorce proceeding. However, in Ohio a dissolution of marriage is a statutory alternative to a divorce proceeding in which husband and wife both agree on parental rights, spousal support, and division of personal property, contained in a document called a separation agreement. The husband and wife then file the a dissolution petition to the court, attaching the separation agreement and various other forms, asking the court to issue a decree.
Ok, so you have googled “dissolution of marriage in Ohio,” purchased the forms from an online legal form vendor for 300 bucks and now your thinking about all the money your going to save by not having to hire a lawyer. Can this work? Yes, it can. A lawyer is not necessarily required to get a marriage dissolution. However, before you go that route keep in mind that many of these online forms warehouses give little or no instruction as to filling out the forms and the process of filing. Furthermore an attorney can help negotiate, advise, and protect your interests. For those of you willing to bear the storm I hope that this blog entry will at give you a big picture perspective of the process itself.
Before you order anything online you should stop by your local county clerk’s office (normally the Division of Domestic Relations) or the website and take a look at the forms that are required for a dissolution. Doing so will give you a better idea about whether this is something that you would like to tackle yourself. Also, the people working in the Clerk’s office are generally not very helpful as they are not allowed by law to give legal advice, don’t say that I didn’t warn you.
After you have have all the required forms properly filled out you then submit them to the court. A petition hearing date will then be set anywhere from 45-90 days later. At this hearing a judge will ask you and your spouse a few questions then she will issue the decree of dissolution and voilia, your marriage is dissolved.