This is the 8th installment in a series by Virginia Cornwell, an Ohio Grandparent Rights Attorney and Ohio State Bar Association Certified Family Relations Specialist. Virginia is one of approximate 100 attorneys in Ohio to have received this honor.
GET IT RIGHT! IT MATTERS IN OHIO
A. MOTION TO INTERVENE
A Motion to Intervene is NOT the same things as a Motion for Visitation. It is not the name of the pleading that attorneys file when grandparents want custody. It does not matter if an attorney or someone at the court house tells you it is the same thing – the LAW says it is not the same thing, and when a grandparent loses their rights because the wrong thing was filed, it is the LAW that the court will point to when they do it. Sometimes when a grandparent files the wrong court papers, the court will try to help grandparents out by pointing out that the wrong request has been filed, but when the court is not so inclined, or believes it would be inappropriate to do so, that Motion to Intervene, sitting in the file all by itself, is going to be the noose that the grandparents’ rights are hung by.
So what is a Motion to Intervene, and when is it necessary? The are are governed by Ohio Rule of Civil Procedure 24. Civil Rule 24 discusses situations when a person has a RIGHT to intervene as well as situations where there is no RIGHT to intervene, but a court may ALLOW intervention. A review of Civil Rule 24 sets forth the legal analysis required to determine if a grandparent has a right to intervene, or may need the court’s permission to intervene.
In cases where the parties were married, and a grandparent seeks visitation, the right to intervene is given as a statutory right, and therefore grandparents do not have to rely on Civil Rule 24. This statutory right is given in Ohio Revised Code 3109.051. A good discussion about when these filings are necessary and when they are and are not necessary, and a court’s discretion (but not requirement) to convert a Motion to Intervene into a Motion for Visitation is found in Liming v. Damos, 2006-Ohio-2518
B. MOTION TO BE ADDED AS A PARTY
One thing that grandparents can count on, is that in divorce, legal separation or annulment actions, Civil Rule 24 does not apply. Civil Rule 75 provides that Civil Rule 24 does not apply in divorce, legal separation or annulment actions, but instead, Civil Rule 75 does provide a method for being added as a party.
C. MOTION FOR CUSTODY
This article has already discussed under what situations a grandparent may obtain custody, but in one of those situations, we can’t say it often enough – Grandparents – if your children are involved in a children’s services case, FILE YOUR COURT PAPERS FOR CUSTODY EARLY IN THE CASE, BEFORE THE DISPOSITION AND SERVE IT ON ALL ATTORNEYS AND/OR PARTIES. If the INITIAL case is dismissed and re-filed because it cannot be resolved in 90 days, then you need to file your court papers in each subsequent case as well, subject to the same time limitations.
D. MOTION FOR VISITATION
A motion to intervene cannot be a substitute for either a motion for custody or a motion for visitation. If grandparents want visitation, they have request visitation in their court papers.
The other articles in the series can be seen here:
DISCLAIMER – read it!