Tag Archives: parents
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 the 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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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.
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If a person wants to take custody of a child that is alleged to be an abused, neglected or dependent child, either with Children Services filing a complaint, or a private party filing a complaint for custody, those prospective custodians must have a home study conducted before they can take the child.
Homestudies may also be conducted when a parent wishes to have custody changed from the original residential parent to him or her. In this instance, the Court may want to learn more about the prospective residence.
Many people get nervous when the issue of a home study is raised, fearing that outsiders will soon be prying into their lives in ways that seem untoward or unfair. However, homestudies are rather pro forma and the items the investigators are interested in are very basic in nature. When Children Services or a private organization conduct a homestudy, they are effectively looking primarily at the following:
1. Is the home structurally sound?
2. Is there adequate room in the home that would allow the custodians to take-in another child?
3. Is the home sanitary and safe in all respects?
4. Who lives in the home? And would any current resident present a danger to this particular child if he or she were to be brought into the home?
While this is not the entire list of factors the investigators will look at (according to the investigators themselves), the truth is that the above list consists of the primary factors the investigators will be interested in. Like most agencies, Children Services is overworked and is constantly having to place children in safe environments and no case can be investigated in the manner it would be in a perfect world. Therefore, when investigators visit a home they are looking for basic and immediate red-flags that would caution against placing the children in this particular home, mostly because the lack of resources prevent the sort of in-depth investigation that all of us would prefer.
As long as the home is safe, sanitary and well equipped to take in another child, the homestudy should be positive in the end.
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.
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