Grandparents Rights in Ohio: Custody and Visitation

This article contains a LOT of information about Grandparent Rights in Ohio, the law, the cases, and what it all means to you.  In order to help you quickly and easily find the information that YOU are looking for today, we have put together a little road map with links to the appropriate text of the article.  This way, you do not have to wade through information you do not want, you can go straight to the information you came for.   The Table of Contents is also to help you organize all the information in this article.  If you would like to discuss how the law applies to your situation, please call us at 614-225-9316 to schedule a consultation. 

 

 TABLE OF CONTENTS

1)    GRANDPARENT CUSTODY IN OHIO

• Unsuitability and How it Relates to Parents Who Were Married 
• Unsuitability & How it Relates to Parents Who Were Never Married
• Unsuitability & How it Relates to Guardianship in Probate Court
• Temporary Custody vs. Legal Custody and How it Relates to Unsuitability
• Unsuitability and How it Relates to Cases in Which a Child is Adjudicated to be Abused, Neglected or Dependent (Children’s Services Cases) 
• Ohio Grandparent Rights To Seek Or Provide Kinship Care, Temporary Custody, Visitation, Or Custody When The Child Is In The Custody Of Children Services, Family And Youth Services, Department Of Human Services Or A Similar Agency
• Modification of Grandparent Custody

 2)    GRANDPARENTS VISITATION IN OHIO

A. Ohio Grandparent Visitation When The Parents Of The Child Are Or Were Married When The Child Was Born

B.  Grandparent Visitation In Ohio When The Parents Of The Child Were Not Married When The Child Was Born

C.  Comparison Of Ohio Grandparent Visitation Rights With Children Who Were Born During Wedlock And Children Who Were Born Out Of Wedlock

D.  Ohio Grandparents Visitation When One Of The Parents Of The Child Is Deceased

 3)    GETTING IT RIGHT: IT MATTERS IN OHIO!

• A. MOTION TO INTERVENE
• B. MOTION TO BE ADDED AS A PARTY
• C. MOTION FOR CUSTODY
• D. MOTION FOR VISITATION

 4)    OHIO GRANDPARENT CARETAKER AFFIDAVIT - A Temporary Solution For Situations When Parents Are Absent And Did Not Give Grandparents A Power Of Attorney

 5)    OHIO GRANDPARENTS POWER OF ATTORNEY

 6)    OHIO GRANDPARENTS RIGHTS ATTORNEYS / GRANDPARENTS RIGHTS LAWYER OHIO / GRANDPARENTS RIGHTS ATTORNEY OHIO

  

UNSUITABILITY & HOW IT RELATES TO PARENTS WHO WERE MARRIED

In the Ohio Supreme Court case In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, gives an interesting discussion of whether a finding of unsuitability is necessary in cases where the parents were married.  One of the things that is most interesting about the Hockstok discussion of the necessity of finding unsuitability (whether a case is in juvenile court or domestic court) is the fact that the discussion in Hockstok is all dicta (discussion by a Judge in a decision which not part of the holding of the case).  The reason the discussion is all dicta is the Hockstok case did not involve a custody dispute in a case where the parents were married. 

On the one hand, in Hockstok, the Supreme Court discusses the position that natural parents have a fundamental rights in child custody cases, and that custody should not be awarded to a non-parent, either in a domestic relations case, or in a juvenile court case, absent a finding of unsuitability.  The Supreme Court went on to discuss constitutional rights under the Due Process clause of the Fourteenth Amendment to the United States Constitution, and Section 16, Article I of the Ohio Constitution. 

On the other hand, in Hockstok, the Ohio Supreme Court distinguishes the case at hand from other supreme cases which upheld a decision of a domestic relations court which made NO finding of unsuitability.  The problem is, Ohio Revised Code 3109.04(D)(2) controls the award of custody to a non-parent when the parents were married and have filed a divorce, dissolution, annulment, legal separation or child support actions, and that statute does NOT require a finding of unsuitability in order to award custody to a non-parent.  Instead it only requires that the court find that it is not in the child’s best interest that either parent be awarded custody of the child.  This is not an oversight.  There used to be a requirement of unsuitability in Ohio in any award of custody to a non-parent, and 3109.04 has changed this requirements when the parents were married and are now having some sort of legal disruption.  Absent the parents initiating this litigation, there is no right for a non-relative to request custody, but once the parents file, the standard is low, compared to the unsuitability standard for parents who were never married. 

The Supreme Court of Ohio likely knows that that the current version of 3109.04 has constitutional problems, and that a challenge is coming.  The dicta in the Hockstok case gives the public an inkling of what to expect from the Supreme Court if an when this challenge happens.  As a remedial measure, some jurists recommend that parties and their attorneys should assert, and a court should find unsuitability before making any award of custody to a non-relative in Ohio.

UNSUITABILITY AND PARENTS WHO WERE NEVER MARRIED

According to the Ohio Supreme Court case In re Perales (1977) 52 Ohio St.2d 89, in order to find a parent unsuitable, a court must find by a preponderance of the evidence, that the parent: 

• Abandoned the child, or
• Contractually relinquished custody of the child, or
• That the parent has become totally incapable of supporting or caring for the child, or
• That an award of custody to the parent would be detrimental to the child.

 In addition, if the court makes a finding of unsuitability based upon detriment to the child, the measure of suitability is the harmful effect or adverse impact upon the child.  The court’s finding cannot be based on society’s judgment of the parent.  In other words, if the parent is doing something that society does not approve of, but has no impact on the child, then a court cannot use that as a basis for awarding custody to a non-parent. 

 So what is the difference between what is detrimental to the child, and what is simply a matter of societal norms?  Essentially, the difference lies with the child, and the perceptions of the child, the witnesses, the guardian ad litem and the Judge or Magistrate.  It is a fine line, but the starting point should be an objective look at the child – what does the child perceive as being detrimental?  The child’s perception alone is not determinative, and but it is significant.  The actions, behavior, preferences and well being of the child will be closely scrutinized.  The child’s physical and mental health and behavior in both environments will be considered.  A good discussion of the fine line between adverse impact / harmful effect and societal norms can be find in the case In re Z.A.P. 177 Ohio App.3d 217, 2008 Ohio 3701. 

 In cases between a parent and a non-parent filed under Ohio Revised Code 2151.23(A)(2) ( Ohio Revised Code Statute that says Juvenile Court has jurisdiction over children not already the ward of another court, except in Richland and Fairfield Counties – where matters are heard in the domestic relations court), a court may not award custody of a child to a non-parent without first finding that the parent is unsuitable to raise the child. 

UNSUITABILITY AND GUARDIANSHIP IN PROBATE COURT

  For example, the Hockstock court discussed a prior case,  Masitto v. Masitto (1986), 22 Ohio St.3d 63, in which the natural father of the child, prior to divorcing the mother, had consented to the grandparents receiving guardianship of the child through the probate court.  The natural father and mother later divorced, and made no provision for custody in the divorce, but instead incorporated the guardianship order of the probate court.  The Supreme Court noted that in Masitto, the father had contractually agreed to the appointment of the grandparents as legal guardians, and that Ohio Revised Code 2111.06 requires unsuitability as a prerequisite for guardianship.  This means that any parent who gives guardianship of their children to grandparents (or someone else) in probate court has, by their own consent, established their unsuitability and has opened the door for custody to the person who received guardianship. 

TEMPORARY CUSTODY VS. LEGAL CUSTODY, AND HOW IT RELATES TO UNSUITABILITY

 In the Ohio Supreme Court case, In re Hockstock, which arose out of Licking County, the Ohio Supreme Court noted that there is a distinct difference between a parent granting temporary custody to a grandparent, and a parent granting legal custody to a grandparent.  Specifically, the Hockstock court found that a grant of temporary custody was not a “contractual relinquishment of custody of the child”, and in fact, the parent had contested every time the grandparents sought to obtain legal custody.  The Hockstock court also noted, that even when a parent has relinquished legal custody to a non-parent, the parent has residual legal rights, and the grant of custody is NOT a termination of parental rights.  The Hockstock court noted the statutory definition found in Ohio Revised Code 2151.011(B)(19) specifically provides that there are residual parental rights, even when a parent has given up or lost legal custody:

“Legal custody” means a legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities. An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by any section of the Revised Code or by the court.

UNSUITABILITY AND HOW IT RELATES TO CASES IN WHICH A CHILD IS ADJUDICATED TO BE ABUSED, NEGLECTED OR DEPENDENT (CHILDREN’S SERVICES CASES)           

On March 29, 2006, The Supreme Court of Ohio, in In re C.R. held that when a juvenile court adjudicates a child to be abused, neglected or dependent, it has no duty to make a separate finding at the dispositional hearing that the parent is unsuitable before awarding legal custody to a non-parent, because an adjudication of abuse, neglect or dependency  is a determination about the care and condition of a child, and implicitly involves a determination of the unsuitability of the child’s custodial and/or non-custodial parents. 

Ohio Grandparent Rights To Seek Or Provide Kinship Care, Temporary Custody, Visitation, Or Custody When The Child Is In The Custody Of Children Services, Family And Youth Services, Department Of Human Services Or A Similar Agency

Ohio Grandparents often have a very difficult time obtaining custody of their grandchildren when they are in the temporary or legal custody of a PCSA (Public Children’s Services Agency) in Ohio.  It is very difficult to get the agency to tell you anything about the case.  Often, the grandparents will get either no information, mixed information or even false information from the Children’s Services Agency.   Most of the time however, they do not return your calls.

It is important to remember that phone calls are invisible.  I’ll say that again.  PHONE CALLS ARE INVISIBLE. Do NOT wait for that caseworker to return your call.  It probably won’t happen, and if it does, it still will not get you any closer to getting temporary or legal custody of your grandchild.  If a children’s services case is open on your grandchild, and you want to take temporary or legal custody of your grandchild, or have your grandchild live with you while the children’s services case is pending, you need to notify children’s services, IN WRITING, that you are will to take legal custody, temporary custody, provide kinship care, or simply have the child placed with you while the court case is proceeding.  You are well advised to fax this information to children’s services.  You can send faxes at many stores, like FedEx/Kinko’s, Staples, or other similar stores.  KEEP THE FAX CONFIRMATION RECEIPT to prove the letter was received.

Now, getting information regarding a working fax number of the Children’s Services case worker assigned to your child’s case may be difficult in and of itself.  You do not have a lot of time.  Sometimes Children’s Services case move very quickly and if you do not act early in the case, almost right away, you are damaging your chances of being able to take custody of your grandchild if their parents lose custody.

If you are the parent of a child that is participating in the court case, your (adult) child’s attorney may be able to give you the fax number.  If not, try using the main fax number for the children’s services agency, which should be able to be found on the internet.  (Please note, ODJFS keeps a listing of the children’s services phone numbers and fax numbers for all 88 Counties.  I recently tried to the call the phone number for one of those counties, and it rang endlessly with no answer.  Don’t be discouraged!  There are phone numbers for the main children’s services office, and many regional children’s services offices.  Ask a person who knows how to search the internet well to help you find one.  You can fax it to a couple of different fax numbers to make sure it gets through.)  Address the letter to both the caseworker and the supervisor of the caseworker.  It is okay if you don’t know their names, just make sure that you have the names and date of birth of the child and, if possible, the parents, included in the letter and spelled correctly.  If the parents go by different names, and not always their legal names, include that information as well so that the Children Services agency can match up the letter with the appropriate caseworker.  When you fax the letter, send a second fax with a copy of the fax confirmation sheet.  This sends a message that you can prove that you notified the caseworker regarding your intention to take temporary or legal custody of your grandchild, or become a care giver for your grandchild.

Okay, so you have notified the caseworker that you want to take custody of your grandchild, even if only temporarily.  Don’t expect anything to happen yet, you have a lot more work to do.  Now you have to notify the COURT.  This is as important if not MORE important than notifying the agency.  The agency often has different motives than the court.  The Court is more likely to recognize and properly address your right to seek custody of your grandchild if they are removed from their parents’ care, either temporarily or permanently.

Under Ohio Revised Code 2151.353 (Orders of Disposition of Abused, Neglected and Dependent Children), the law of Ohio provides that ONE of the options a court may choose if a child is found to be abused, neglected or dependent would be to award temporary or legal custody to A RELATIVE LIVING INSIDE OR OUTSIDE THE STATE. In order for a person to be awarded legal custody, that person MUST HAVE FILED A MOTION REQUESTING LEGAL CUSTODY PRIOR TO THE DISPOSITIONAL HEARING.  This requirement bears close scrutiny, so I’ll break it down into three parts:

• Relative must have filed a motion with the court.  (You may need the help of an attorney for this – Children’s Services will not give you the case number, because they usually do not want relatives interfering with their authority)
• The Motion must be a Motion for Custody, if custody is what you are seeking.  A Motion to Intervene is NOT the same thing as a Motion for Custody.  There are Ohio Grandparents who have lost their rights forever because their attorney filed a Motion to Intervene.  (Note that when a court WANTS to grant the grandparents custody, Ohio courts sometimes elect to “treat” the motion to intervene as if it were in fact a motion for custody, but when the court does not want to grant custody to grandparents, the court will often use this technicality as a reason for denying custody to the grandparents.  The only way to MAKE the court consider giving you custody is to file a Motion.)
• The Motion must be filed BEFORE THE DISPOSITION HEARING.  In Ohio, abuse, neglect or dependency cases must be adjudicated within 90 days.  The disposition often happens on the same day as the adjudication.  In order to be safe, The Motion must be filed with the court and a copy mailed to all parties OR their attorneys 14 days before the 90 days expires.  The 90 day time period begins on the date the complaint is filed. 

In addition to filing a motion, everyone in the grandparent’s household must go through a background check, which usually involves being fingerprinted by Children’s Services.  If Children’s Services will not cooperate with you, will not return your calls, and drags their feet about performing a background check, you are probably going to have to pay for one yourself.  This can be done electronically, through fingerprinting.  Request that the results be sent to you, not to Children’s Services.  When you get the results, take them to court to show the judge or magistrate.  At that point Children’s Services will probably say that the fingerprint results are unacceptable and the magistrate will probably ask Children’s Services why they didn’t return your calls and arrange for you to be fingerprinted.  At that point, Children’s Services will probably follow through with your fingerprinting.  So why did you go through this silly, expensive ordeal?  So that Children’s Services would have to either do the background check or accept the one you had done.

At this point, you are probably beginning to understand what a difficult ordeal that grandparents and other relatives have when trying to get custody of their grandchildren in a children’s services case.  If you have the means to afford a lawyer, you are well advised to get a lawyer EARLY in the case, not when it’s too late.  Because of the lack of information or incorrect information grandparents receive about their grandchildren when they are in the custody of children’s services, grandparents often wait too long to retain a lawyer.  An unfortunate example of this mistake is when grandparents fail to file a motion for custody BEFORE the children are determined to be abused, neglected or dependent by a court, and instead waiting until the children have been in the custody of the agency for many months, and the agency has filed a motion to terminate parental rights.  If parental rights are terminated, grandparents may have no legal right or access to custody or visitation with their grandchildren.  Waiting and hoping that things will work out for the best may cost these grandparents dearly.  Instead, the best thing they could have done is to become involved early and if possible, hire an attorney.

Children’s Services is charged with ensuring the safety of the child.  They are going to trust a foster parent more than a relative because the foster parent is motivated to be honest with the agency and to provide supervision as required by the agency.  The agency trusts a foster parent not to release the child back to the parent who, according to the law, abused or neglected the child.  However, the children’s services agency does not have the final say in who receives custody of the child.  Grandparents and relatives CANNOT prove a negative.  They cannot prove that they are NOT going to do something.  The court knows this, but it helps to have an attorney to represent the grandparents in court.

Matters are even more complicated if the grandparent seeking custody lives outside of the state of Ohio.  In order to place children outside of the state of Ohio, Children’s Services must comply with the Interstate Compact on the Placement of Children.  Pursuant to Ohio Administrative Code 5101:2-52-04, the Ohio Children’s Service Agency must make the request to the Ohio Interstate Compact on the Placement of Children Office (ICPC) of its need to obtain an evaluation of a placement resource and the receiving state’s authorization to place the child.  By simply failing to do this, a Children’s Services agency can make it difficult or impossible for a grandparent to receive custody of their child.  Therefore, the grandparent will probably have to engage the help of the court in order to receive custody of their grandchild. 

 MODIFICATION OF GRANDPARENT CUSTODY

 In response to the residual rights that parents retain a non-parent is awarded legal custody, the standard to modify any award of legal custody to a non-parent is the “best interest of the child” standard.  The parent only has to be found unsuitable at the time of the initial award of legal custody.  Thereafter, if the parent files seeks to modify the award of legal custody, the standard of review is the best interest of the child.

2)    GRANDPARENT VISITATION IN OHIO

Once upon a time there was a U.S. Supreme Court called Troxel v. Granville, 530 U.S. 57 (2000).   The state of Washington used to have a statute that permitted any person to apply for visitation with a child at any time.  The Troxels applied for visitation with the daughters of their deceased son.  After many appeals, the case reached the U.S. Supreme Court.  The U.S. Supreme Court found that that the Washington statute was overly broad, and violated the mother’s constitutional due process right to the care, custody and control of her children.  In support of their decision, the U.S. Supreme Court noted that the Washington statute had requirement that the parent be found unfit AND the statute (and the Washington courts) gave no special weight to the wishes of the parent.  Pursuant to Parham v. J.R. 442 U.S. 584, there is a presumption that a fit parent acts in the best interest of their child.  The Supreme Court went on to say that the problem was no so much that the court intervened, but that it gave no special weight to wishes of the parents. 

Unfortunately, to the detriment of many Ohio grandparents, after the Troxel case many attorneys concluded that ANY statute which allowed grandparent visitation would not be upheld if challenged.  Ohio has several statutes which allow grandparent or non-parent visitation.   

On October 10, 2005, the Ohio Supreme Court , in the case Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, held that Ohio Revised Code 3109.11 (visitation for relatives of deceased mother or father) and 3109.12 (relatives of child born to an unmarried woman) do not unconstitutionally infringe upon parents’ due process right to make fundamental decisions regarding care, custody and control of their children, and that the statutes are narrowly tailored to serve the state’s compelling interest in protecting children. 

CURRENT STATE OF THE LAW FOR GRANDPARENT VISITATION IN OHIO

In Ohio, Grandparents have the right to petition a court for visitation in a several different  circumstances.  They do not have an automatic right to have visitation.  That is a decision made by the court on a case by case basis, using the best interest of the child standard.  Generally, Ohio courts have been generous in awarding grandparent visitation.

When grandparent visitation is awarded by a court, it is generally a visitation schedule that is less than what would be awarded to a parent.  There is a reason for this – a grandparent’s rights are not the same as a parent’s rights.  Ohio courts want to be very clear about this, and do NOT want to send a signal to grandparents that the courts are the place to win a power struggle between and parent and a grandparent.  In addition, if the court finds, (after being presented with evidence that is admissible in court under the Ohio Rules of Evidence and is NOT hearsay) that the grandparent is making statements or taking actions to alienate the parent from the child, the court may decline to grant visitation or severely limit visitation.

Most parents who oppose court ordered grandparent visitation state one or more of the following reasons for denying or severely limiting grandparent visitation:

• The child is not comfortable with the grandmother or grandfather
• The child does not really know or have a relationship with the grandmother or grandfather
• The child is somehow at risk with the grandmother or grandfather
• The child was somehow injured or frightened while in the grandparent’s care
• The grandparent or grandparents have not contacted the parents in a long time and being served with the court papers was a complete surprise
• The grandparents have left the child in the care of or exposed the child to persons who are inappropriate to be around the child
• The grandparents do not properly feed or care for the child while the children are or have been in their care
• The parent has never denied the grandparent visitation with the child, so there is no need for a court ordered visitation schedule
• The other parent is or was a bad person and so the child should not be exposed to the parents of the bad person
• Giving the grandparent rights to court ordered visitation takes away some of the rights of the parents
• The grandparents only wants grandparent rights in order to add to the court ordered visitation time which the other parent already has or is about to receive

The court hears these allegations all the time.   Some of them have merit, but most do not.  Almost none of them are provable in a court of law, because the allegations are mostly hearsay.

Before determining whether visitation is in the best interest of the child, a court is going to want to know why the visitation that the parent (grandparent’s son or daughter) already has is not available as time for the grandparent to see the child.  If the grandparent can regularly see the child during their son or daughter’s parenting time, a court will want to know what the grandparent felt the need to file for grandparent rights.  If the grandparent does not have a good answer to this question, the court will likely conclude that the grandparent simply wants to expand the amount of time their child has with the grandchildren, and deny the grandparent’s filing for grandparent rights.

Of all of the reasons that parents have for avoiding court ordered grandparent rights, the most commonly litigated reason is that the parent’s assertion that the grandparent already has access to the child and there is no need for a court ordered schedule.  If the grandparent is able to present credible evidence about why there is a need for the court ordered schedule, and establish that access to the grandchild was denied until the court papers were filed for grandparent rights, the parent’s assertion does not usually stand up under scrutiny.  If the parent who has custody of the children would rather go to trial than have a court ordered grandparent rights visitation schedule, this often has the effect of convincing the court that there IS a need for a court ordered schedule for grandparent visitation.

The second most litigated reason that reason parents give for denying grandparent visitation is that parents are willing to grant visitation, but the parents want to control and/or supervise the visitation.  A court is going to want to know if there is any reason that the grandparent is a risk to the grandchild.  If not, the court is going to want to know what the parent’s justification, in terms of the CHILD’S NEEDS, not the PARENT’S NEEDS, to have grandparent visitation controlled or supervised by the parent.

 A.  Ohio Grandparent Visitation When the Parents of the Child Were Married When the Child Was BORN

Pursuant to Ohio Revised Code 3109.051(B), a grandparent may request visitation with their grandchild or grandchildren by filing a motion in a divorce, dissolution of marriage, legal separation, annulment, or child support proceeding.  The law actually provides that the court may “grant reasonable companionship or visitation rights to any grandparent, any person related to the child by consanguinity (blood) or affinity (marriage), or any other person other than a parent”.  This means that anybody can try to intervene in these types of action and file a motion to receive visitation with a child.  However, just because anybody can apply, it does not mean that just anybody will be granted visitation of a child.  Aunts, uncles, friends of the family, people in gay or lesbian relationships can all apply for visitation, but of all these categories, grandparents are the class most likely to receive visitation.

It is important to note that if the parents of the child in question were married when the child was born, are still married, and none of the above proceedings has been filed by the parents, then a grandparent does not have a right to even petition the court for visitation.   When weighing the needs of a child, the law in Ohio puts preserving the sanctity of an intact marriage ABOVE the need of the child to have a relationship with both sides of the child’s extended family.  This causes distress to many grandparents who are alienated from their grandchildren due to conflicts between the parents, or one of the parents, and the grandparents.  The bottom line is if the parents of the children are happily married, and the children are well cared for (not the subject of an abuse, neglect, dependency proceeding, or a Children Services case, then grandparents are going to have to work out their differences with the parents in order to have access to the child.  Grandparents – read this next line carefully – short of being a dangerous criminal or child abuser yourself, the surest way to make sure you never get access to your grandchildren is to make a false report to Children’s Services.  DON’T DO IT.  You cannot unring that bell, and a great attorney is not going to be able to clean up that mess.  If you pick up that phone to call the local Children’s Services in your county about your grandchildren, you need to have a darn good reason to do so.

In Ohio, a court can award visitation to a grandparent during one of the above types of proceedings, if ALL of the following apply:

(a) The grandparent, relative, or other person files a motion with the court seeking companionship or visitation rights.

(b) The court determines that the grandparent, relative, or other person has an interest in the welfare of the child.

(c) The court determines that the granting of the companionship or visitation rights is in the best interest of the child. (the factors used to determine the best interest of the child when deciding visitation rights is set out in Ohio Revised Code 3109.051(D).

If an award of Ohio grandparents visitation rights is made during the above types of proceedings, and circumstances later change, a grandparent can file to modify their grandparent visitation.  Under Ohio law, a court should not consider modifying an award of grandparent visitation unless the circumstances of the child have changed.

What is important to realize here is that if grandparents of children whose parents were married want grandparent visitation, then the grandparents should to become involved EARLY in the proceedings in which the parents end their marriage or seek child support in court.  If a grandparent waits to see what the court will do in the divorce, decides they do not like the amount of parenting time that their son or daughter received, and THEN tries to file for grandparent visitation, a court is not going to take the request very seriously, unless both parents are denying the grandparent access to their grandchildren. 

In Ohio divorce situations, allegations are sometimes made that when one parent or the other exercises parenting time, it is really the grandparent who is caring for the child.  This is commonly an allegation that is used as a tool to allege that one parent is unable or unwilling to care for their children, and is delegating that responsibility to the grandparents.  Make no mistake – it is perfectly fine for grandparents to provide child care for grandchildren while parents are working.  Most courts would find this preferable to being with strangers in a day care setting.  However, if time with grandparents is going to constantly cause problems between parents, and jeapordize whether grandparents will be able to spend time with their grandchildren, then court ordered grandparent visitation may be the answer.

 B.  Grandparents Visitation in Ohio When the Parents of the Child Were NOT Married When the Child Was BORN 

 Ohio Revised Code 3109.12 says that if a child is born to an unmarried woman, the parents of the woman and any relative of the mother of the child may file a complaint requesting the reasonable visitation with the child.  Relatives of the father cannot petition the court for visitation with the child unless paternity of the child has been established.  When grandparent or relative visitation has been requested, the court may grant the visitation if it determines the visitation is in the best interest of the child.

The marriage or remarriage of the mother or father of a child does not affect the authority of the court to grant reasonable visitation with grandparents or relatives of either the father or the mother of the child.  Note this does not apply to adoption. This means that if a mother or father is not supporting his or her child, or if the mother or father is not visiting his or her child (either/or, does not have to be both), then he or she and their entire family could lose access to the child.

C.        Comparison of Ohio Grandparent Visitation Rights With Children Who Were Born During Wedlock and Children Who Were Born Out of Wedlock

It is important to note the difference between non-parent visitation in situations where the child was born during marriage, and when the child was born out of wedlock.  When the child was born during marriage, relatives and any other person (whether they are a relative or not) may file for visitation, but only if one of the parents have first filed an action for divorce, legal separation, dissolution, annulment, or child support.  In contrast, when the child was born out of wedlock, relatives of the child’s mother have an automatic right to request grandparent visitation any time, and, if paternity has been established, relatives of the father have the same right.  So, the law is more liberal about WHO  may file for visitation when the parents of the child were married when the child was born, and the law is more liberal about WHEN a relative may file for visitation when the parents of the child were not married.   

 D.   Grandparent Visitation in Ohio When One of the Parents of the Child is Deceased

 Ohio Revised Code 3109.11 provides that if either the father or mother of an unmarried minor child is deceased (child must be unmarried, has nothing to do with the parents), the court may grant visitation to grandparents or other relatives of the deceased father or mother.   

 It is VERY IMPORTANT to note that ORC 3109.11 also provides ” the remarriage of the surviving parent of the child or the adoption of the child by the spouse of the surviving parent of the child does not affect the authority of the court under this section to grant reasonable companionship or visitation rights with respect to the child to a parent or other relative of the child’s deceased father or mother.”  This is contrary to what many people believe the law to be – but it is right there in the statute.  If you are a grandparent, and your adult child is deceased, your right to request or receive grandparent visitation is NOT terminated by adoption or remarriage of the surviving parent.  Check for yourself! 

3)    GETTING 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 motion was filed, it is the LAW that the court will point to when they do it.  Sometimes when a grandparent files the wrong motion, the court will try to help grandparents out by pointing out that the wrong motion 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 the be the noose that the grandparents’ rights are hung by. 

So what is a Motion to Intervene, and when is it necessary?  Motions to Intervene 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 Motions to Intervene, 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 MOTION 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 motion 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 to file either a motion for visitation, or a complaint requesting visitation, depending upon the circumstances.

4)    OHIO GRANDPARENT CARETAKER AFFIDAVIT – A TEMPORARY SOLUTION FOR SITUATIONS WHERE BOTH PARENTS ARE ABSENT AND DID NOT GIVE GRANDPARENTS A POWER OF ATTORNEY

Ohio Revised Code 3109.65 provides a solution for a situation where a child is living with the grandparent and the parents of the child cannot be found.  This is only a temporary solution, and is not the same thing as legal custody, but it allows the grandparent to do necessary things for the child, such as enrolling the child in school, taking the child to the doctor, etc.

Ohio law states:

(A) Except as provided in division (B) of this section, if a child is living with a grandparent who has made reasonable attempts to locate and contact both of the child’s parents, or the child’s guardian or custodian, but has been unable to do so, the grandparent may obtain authority to exercise care, physical custody, and control of the child including authority to enroll the child in school, to discuss with the school district the child’s educational progress, to consent to all school-related matters regarding the child, and to consent to medical, psychological, or dental treatment for the child by executing a caretaker authorization affidavit in accordance with section 3109.67 of the Revised Code.

(B) The grandparent may execute a caretaker authorization affidavit without attempting to locate the following parent:

(1) If paternity has not been established with regard to the child, the child’s father.

(2) If the child is the subject of a custody order, the following parent:

(a) A parent who is prohibited from receiving a notice of relocation in accordance with section 3109.051 of the Revised Code;

(b) A parent whose parental rights have been terminated by order of a juvenile court pursuant to Chapter 2151 of the Revised Code.

Click here for a caretaker affidavit form that you can copy and paste

 5)    OHIO GRANDPARENTS POWER OF ATTORNEY

Ohio law provides that in certain circumstances a parent may give a grandparent a power of attorney to enroll the child in school, care for the child’s medical needs, etc.  This is similar to the caretaker affidavit situation described above, except that the parent is present and willing to execute the Power of Attorney.

When a parent seeks to create a power of attorney pursuant to section 3109.52 of the Revised Code, all of the following apply:

(A) The power of attorney shall be executed by both parents if any of the following apply:

(1) The parents are married to each other and are living as husband and wife.

(2) The child is the subject of a shared parenting order issued pursuant to section 3109.04 of the Revised Code.

(3) The child is the subject of a custody order issued pursuant to section 3109.04 of the Revised Code unless one of the following is the case:

(a) The parent who is not the residential parent and legal custodian is prohibited from receiving a notice of relocation in accordance with section 3109.051 of the Revised Code.

(b) The parental rights of the parent who is not the residential parent and legal custodian have been terminated by order of a juvenile court pursuant to Chapter 2151. of the Revised Code.

(c) The parent who is not the residential parent and legal custodian cannot be located with reasonable efforts.

(B) In all other cases, the power of attorney may be executed only by one of the following persons:

(1) The parent who is the residential parent and legal custodian of the child, as determined by court order or as provided in section 3109.042 of the Revised Code;

(2) The parent with whom the child is residing the majority of the school year in cases in which no court has issued an order designating a parent as the residential parent and legal custodian of the child or section 3109.042 of the Revised Code is not applicable.

Click here for a grandparent power of attorney form that you can copy and paste

6. OHIO GRANDPARENTS RIGHTS ATTORNEYS / GRANDPARENTS RIGHTS LAWYER OHIO / GRANDPARENTS RIGHTS ATTORNEY OHIO

The Law Offices of Virginia C. Cornwell has had tremendous success in representing Grandparents who have grandchildren residing in Ohio.  Some of our grandparent clients live in Ohio, but many live in other U.S. states.  We have helped grandparents obtain both custody and visitation.  Part of our success is due to our open and direct communication with our clients.  We don’t beat around the bush, we tell it like it is.  This allows our client to make an informed decision about which goals they want to pursue, and what course of action is most likely to get them there.  We are proud of our record of success in the area of grandparent rights and we look forward to many more years of service in this area of law.

The information provided in this web site is applicable in the state of Ohio and is provided as a public service. While Virginia Cornwell is a Columbus Ohio Divorce Lawyer, and a Columbus Ohio Custody Attorney, an Ohio Grandparent Rights Attorney and an International Family Law Attorney in Ohio, viewing the information in this web site does not constitute an attorney-client communication, and acting upon information obtained from this web site does not create an attorney-client relationship. If you would like to discuss the application of the law to your fact situation, or if you would like additional information, please call the Law Offices of Virginia C. Cornwell at 614-225-9316 to schedule a consultation.

 

 

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