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Ohio Child Custody Part 2: Rights of Married and Unmarried Parents

January 3, 2011

This is Part 2 of a Columbus Ohio Child Custody Lawyer series on the Ohio Child Custody Process.

To view the other installments in the series click the links below:  

  • Ohio Child Custody Part 1
  • Ohio Child Custody Part 3
  • Ohio Child Custody Part 4
  • Ohio Child Custody Part 5
  • OHIO CUSTODY RIGHTS OF MARRIED PARENTS

    In Ohio, parents who are married each have the right to have their child with them at any time.  This means that if parents split up, and cannot agree regarding the Child, the old adage that “possession is 9/10 of the law” kicks in.  This puts the Child in a terrible position – the Child becomes a wishbone, and ends up with the Parent that pulls the hardest.  This is not in the best interest of the Child, and the Law has a couple of options for parents that cannot agree about the division of parental rights and parental time.

    If the parents cannot afford to get a divorce right away, and cannot agree who should have the Child, one option is for the parents to attend mediation to establish a parenting schedule.  Some mediation through the court system is free, even if you do not have a case pending, it just depends on the county you reside in.  Click here for more information about mediation.

    If one of the parents files for divorce, at a minimum, the following parenting issues will be decided if the divorce case proceeds to conclusion:

    • Whether the parents will have shared parenting or if one of the parties will be designated the (sole) residential parent (commonly called sole custody, legal custody or physical custody)
    • If the parents have shared parenting, which parent will be the child’s school placement parent.
    • (CLICK HERE FOR MORE INFORMATION REGARDING THE MEANING AND SIGNIFICANCE OF THE DESIGNATIONS OF RESIDENTIAL PARENT AND SCHOOL PLACEMENT PARENT)
    • A parenting time schedule which allows for the Child to see both parents, unless one of the parents is a danger to the Child, physically or psychologically.
    • Which parent, if either, should pay child support to the other
    • The appropriate amount of child support to be paid
    • Which parent (or both) is responsible for providing health insurance for the Child.
    • Which parent (or both) is responsible for paying for medical expenses of the Child which are not covered by insurance
    • Which parent (or both) will claim the Child as a dependent for tax deduction purposes (Ironically, federal law, not state law, governs which parent shall claim the Child for tax purposes, and a state law cannot order you to waive a right given to you by federal law.  Still, Ohio law has not yet been changed to exclude this provision because nobody (yet) wants to litigate this matter on appeal.  The cost involved outweighs the benefit of the dependent exemption, so unfortunately this law remains part of the Ohio Revised Code at this time.

    PARENTAL RIGHTS OF OHIO FATHERS WHO WERE NEVER MARRIED TO THE MOTHER OF THEIR CHILD, AND WHO HAVE ALREADY ESTABLISHED PATERNITY

    Q. Does legally establishing paternity entitle the Father of a child to visitation with the Child?

    No.  This is a common misconception.  Another common misconception is that the Father who has establisheded paternity is then entitled to visitation with the Child pursuant to the schedule that is set out in the local rule model visitation schedule of the county where the Child resides.  This is also untrue.  The purpose of those schedules is to provide an example of the minimum amount of time that a fit parent should have with their child IF AN ACTION IS BROUGHT BEFORE THE COURT TO GET COURT ORDERED VISITATION, CUSTODY OR SHARED PARENTING.

    Q. Does payment of child support legally entitle the Father of the Child to exercise parenting time with the Child?

    No.  Child support and visitation are two different things in the eyes of Ohio Law.  Paying child support does not entitle a father (or a mother, as the case may be) to have visitation.  Likewise, if a parent has court ordered visitation (parenting time) with their child, their visitation cannot be withheld because they have not paid child support,  unless of course, they are in jail for failure to pay child support.

    Q.  Well then, how is an unmarried father who has established paternity supposed to get time with his child?

    The Court must make an order granting the Father visitation (parenting time), legal custody (residential parent), or shared parenting before the Father of the Child of an unmarried female has the legal right to spend time with the Child.  Ohio Law provides that once parentage has been established, a court designating the residential parent and legal custodian of a child of an unmarried mother shall treat the Mother and Father as standing upon an equality when making the designation.  As with married parents, the Court can make an order upon the agreement of the parties, or after a trial in which the court ONLY listens to evidence which complies with the Ohio Rules of Evidence.  If a person represents themselves, they are expected to comply with the Ohio Rules of Evidence just the same as a person who has a lawyer.  This is something a lot of people find out the hard way.

    • For more information about the rights of fathers (married and unmarried), click here.
    • For more information about the rights of fathers who were never married to the Mother of the Child, click here.

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