Child Custody – Page 2

Split Custody in Ohio – What Does it Mean?

September 28, 2013

Virginia Cornwell is an Ohio Family Lawyer and an Ohio State Bar Association Certified Family Relations Specialist

Split custody is, essentially when custodial rights are not the same for all of the children of the relationship. An example would be when a relationship ends and Mother is the residential parent of the daughter while Father is the residential parent of the son.

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An example of this type of custody arrangement in the news right now is the split custody between gay couple David Tutera and Ryan Jurica. David Tutera is a Celebrity Wedding Planner. In their situation, a surrogate mother was implanted with two embryos, one fathered by David and one by Ryan. In the split, Ryan is taking custody of his biological son and David is taking custody of his biological daughter. To read more about the situation, click the link below.

http://omg.yahoo.com/news/david-tutera-splits-kids-custody-battle-ryan-jurica-163000109-us-weekly.html

Split custody can stem from more than simple biology. There are many reasons that split custody may be in the best interest of the child(ren). The children may be much closer to one parent over the other. A child may have discipline or mental health issues such that it is best that he be in a single child (no siblings) household most of the time, for the safety or emotional well being of the siblings. Children may be older and the court gives great weight to their preferences, which are not the same, and the list goes on. Whatever the reason, split custody is sometimes, in the eyes of the court, what is in the best interest of the child.

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Split custody can have implications other than coordinating visitation (parenting time). In Ohio, courts use a different child support guidelines worksheet for split custody than they do for sole custody or shared parenting.

If you want to speak to an Ohio Custody Lawyer regarding your situation, please give us a call at 614-225-9316.

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DISCLAIMER – Read it, it’s important!

Interference with Custody

July 13, 2013

Lawyer for Custody Interference with custody is a crime in Ohio. The issue comes up when somebody will not return your child to you. This sometimes occurs with relatives or friends of the family who try to assert their wishes to spend (more) time with a child by simply refusing to return the child to his or her parent. A parent may allow a person to visit friends or family , but the visit is over when the parent says it is over.

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Ohio Revised Code 2919.23 says:

(A) No person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor a person identified in division (A)(1), (2), or (3) of this section from the parent, guardian, or custodian of the person identified in division (A)(1), (2), or (3) of this section:

(1) A child under the age of eighteen, or a mentally or physically handicapped child under the age of twenty-one;

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Another example of Interference with Custody may arise when a person, rather than directly refusing to return a child, passively refuses to return a child by blaming the child for the failure to return to the parent. Ohio Revised Code 2919.23 goes on to say:

(B) No person shall aid, abet, induce, cause, or encourage a child or a ward of the juvenile court who has been committed to the custody of any person, department, or public or private institution to leave the custody of that person, department, or institution without legal consent.

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Often, police are called when there is an interference with custody situation. If the dispute is between two persons who have court ordered time with the child, the police often insist that “it is a civil matter” and tell you to call your lawyer. Interference with Custody is a crime in Ohio, and there is NOTHING in the statute that says that the law does not apply to parents, grandparents or relatives. This appears to be simply a matter of preference on the part of the police that the issue be handled in civil court whenever possible. The police CAN make an arrest if they so desire.

It is sometimes difficult to get the police to prosecute interference with custody, but if they are called to assist and the person doing the interference does not return your child, the police may be willing to do so.

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DISCLAIMER – Read it, it’s important!

Change of Circumstances and Grandparent Custody

July 12, 2013

The concept of “change of circumstances” is an important, but complicated concept in family law. When a person wants to change the court’s custody orders, there has to be a change in circumstances.

The first important question is “Whose circumstances have to have changed?” The answer to that depends on whether the order is a shared parenting decree (two residential parents), joint custody (one parent and one non-parent) or whether a person (or persons) have legal custody (aka residential parent or sole custody). In a nutshell, the question is “Shared Parenting, Joint Custody or Sole Custody? ”

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When a person has sole custody of a child (aka “legal custody” or sole residential parent), then the change of circumstances must be a change in the circumstances of the child or legal custodian. It does not matter if the parent who has visitation only, (or has no visitation but simply retains his or her residual parental rights) has changed his or her circumstances, even if his or her circumstances have changed substantially.

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In Alexander v. Alexander, 2013-Ohio-2349, (June 7, 2013), the court of appeals for Champaign County found that the trial court did not abuse it’s discretion when it overruled the Mother’s Motion to Change Allocation of Parental Rights and Responsibilities regarding her three children. The children were in the custody of their paternal grandmother as a result of the agreement of the Mother and Father during their divorce. The Mother had visitation (parenting time).

During the trial on the Mother’s Motion to Reallocate, Mother testified that she had been working for some time to make a more stable home for the children. Among other things, Mother testified that she was employed and had lived in her apartment for a year and a half. The trial court found that pursuant to Ohio Revised Code 3109.04(E)(1)(a), the change of circumstances must have occurred “in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree“. In this case, the changes were in the Mother’s circumstances. In addition, the trial court found that the children have become more stable in the grandparents’ home, and so the “harm of a change in environment for the children outweighs any advantages that may have now arisen to justify a change.”

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Ohio Revised Code 3109.04(E)(1)(a) says that even if there HAS been a change in circumstances of the RIGHT person, the court should not change custody unless the change is in the child’s best interest AND one of the following is true:

(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.

(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

Change of circumstances is complicated. There is no statute that says “such and such is a change of circumstances”. If you would like to consult with one of our Family Law Attorneys in Ohio, please give us a call.

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DISCLAIMER – Read it, it’s important!

What is a “Change of Circumstances” in Ohio Custody Cases?

July 1, 2013

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist and a Columbus Ohio Family Lawyer. This article is the first in a series of articles about what is a change of circumstances according to Ohio custody, visitation and shared parenting law.

Ohio Revised Code 3109.04 (E)(1)(a) requires:

The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

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Ohio law has several hurdles for a parent that wants to change custody, and the burden of proof is on the parent who wants the change. The first step of these complicated requirements is generally that there must have been a change or circumstances based on facts that did not exist at the time of last custody order. For the most part, the Ohio Revised Code is silent about what is or is not a “change of circumstances”, and the answer is found in case law. Sounds simple, right? Nope. Case law varies among the appellate districts. The best you can do is look at the case law, and which trends last over time. The bottom line is that unless a court is directly violating a case precedent that has authority over that court, the court has a LOT of latitude to decide whether or not there has been a change in circumstances.

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Military Parents and Change of Circumstances

One exception to this is found in Ohio Revised Code 3109.051 (click here on or after 1/1/14) which says: The court shall not find past, present, or possible future active military service in the uniformed services to constitute a change in circumstances justifying modification of a prior decree. For more information about Ohio active military members being deployed and custody, click this link to read our article about this subject.

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So What is a Change of Circumstances?

CHANGE HOPE What about non-military parents? For those parents, what constitutes a change of circumstances is mostly a matter of case law. There are a few issues that have gone to the supreme court of ohio, and those rulings apply to the whole state, but there are other issues that vary from one appellate district to another.

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Moving and Change of Circumstances

In Masters v. Masters, 69 Ohio St.3d 83 the Supreme Court of Ohio found that a trial court abuses its discretion when it modifies custody based solely upon evidence that the residential parent intends to leave the State of Ohio with the child. Supreme Court said it was unconscionable for a trial court to treat a parent’s desire to leave the state as a substantial change in circumstances. However, in that case, the mother had not actually left the state, had only expressed an intention to leave. A very different result may occur if the parent has already left. When a parent moves, a child changes schools, loses peers, changes doctors and sometimes loses frequent access to relatives. These are factors a court would consider. Courts are not big fans of parents moving the child far away from the other parent. Put simply – it’s complicated.

For more information, see our series of articles on Change of Circumstances, or give our office a call for a consultation.

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DISCLAIMER – Read it, it’s important!

Military Custody Issues: Deployment and Active Service in Ohio

October 8, 2012

When military servicemembers (sometimes also referred to as service members) are called to active duty or are deployed it can wreak havoc on their families, especially families with children. Even though the servicemember may already have a Family Care Plan in place, service members who are divorced or unmarried parents may be worried that the other parent is going to try to take advantage of the situation to gain custody of their children. However, Ohio has special protections for members of the uniformed services who are called to active duty. Uniformed Services means according to Ohio Revised Code 3109.04: the United States armed forces, the army national guard, and the air national guard or any reserve component thereof, or the commissioned corps of the United States public health service.

ACTIVE MILITARY SERVICE IS NOT A CHANGE OF CIRCUMSTANCES IN OHIO!

The good news in Ohio is that state law prohibits a court from changing custody based solely upon military service. Specifically, Ohio Revised Code 3109.04(I)(2) says: The court shall not find past, present, or possible future active military service in the uniformed services to constitute a change in circumstances justifying modification of a prior decree. This may not provide as much comfort to a parent in this situation, because they may believe (rightly or wrongly) that when a court wants to modify custody, the court finds a way to do it. In other words, what if the court modifies custody anyway, but doesn’t admit that the deployment is the reason for changing custody? In the very next sentence, Ohio Revised Code 3109.04(I)(2) provides additional protection to the servicemember. It says: The court shall make specific written findings of fact to support any modification under this division. What does this mean? It means that the court cannot just change custody, say that it is not based on the military service, but not give the reason for changing custody. The court MUST write down the facts upon which the court chose to change custody. These facts allow the military member to appeal if there was no legitimate basis for the court to change custody.

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Skeptics may say well, that’s great that the law allows me to fight for my kids’ rights, but how am I going to do that from Afghanistan (or Korea, Japan or wherever you are being deployed to)? Of course there is always the good old Servicemembers Civil Relief Act, but when it comes to kids, stalling the proceedings until you can appear is not always good enough, especially if the non-custodial parent has obtained emergency custody. Ohio Revised Code 3109.04(I) provides opportunities to the active duty or deployed military member that Ohio courts will rarely offer to anyone else. If the court will put a stay on the proceedings pursuant to the SCRA until the member can attend, then, at least while the member is deployed the problem is solved. The member may have to reapply for the stay several times, but the children will stay put and be cared for under the member’s Family Care Plan. However, if the non-custodial parent is seeking or has obtained any kind of temporary order or emergency custody order, the court MUST, pursuant to Ohio Revised Code 3109.04(I), allow the service member to “participate in the proceeding and present evidence by electronic means, including communication by telephone, video, or internet to the extent permitted by the rules of the supreme court of Ohio.”

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ACTIVE MILITARY SERVICE
So who qualifies for the protections Ohio offers under this law? ORC 3109.04 defines “Active military service” as service by a member of the uniformed services in compliance with military orders to report for combat operations, contingency operations, peacekeeping operations, a remote tour of duty, or other active service for which the member is required to report unaccompanied by any family member, including any period of illness, recovery from injury, leave, or other lawful absence during that operation, duty, or service.

NOTICE TO THE OTHER PARENT IS REQUIRED
If you are the parent of a child who is subject to an Ohio order “allocating parental rights and responsibilities” (custody, shared parenting visitation order or child support), or you are a party to a case to allocate parental rights and responsiblities, and you receive a military service order calling you to active duty, you must notify the other parent within three days of receiving the order. See Ohio Revised Code 3109.04(I)(1). You must also give written notice to the court, child support enforcement agency, and the other parent of the date of termination of the your active military service not later than 30 days after the date on which your service ends.

Once notice is received, EITHER parent can apply to the court for a hearing to expedite a custody change or modification proceeding so that the court can issue an order before the parent’s active military service begins. The application must state the date upon which the active duty service begins. The court MUST schedule and hold a hearing not later than thirty days after receipt of the application, except that the court shall give the case calendar priority and handle the case expeditiously if exigent (unusual, emergency) circumstances exist in the case.

Although the court cannot change custody based solely upon military service, according to Ohio Revised Code 3109.04(I)(1) Ohio courts can make a temporary order “for the duration of the parent’s active military service”. A temporary order shall specify whether the parent’s active military service is the basis of the order and shall state that the temporary order ends and the old order resumes within 10 days after receipt of notice of the end of active military service, unless the other parent demonstrates that resumption of the prior order is not in the child’s best interest. However, even in those circumstances, the court still cannot change custody based solely on military service. Remember, in Ohio, the court must have a change of circumstances to change custody. Instead, the court would put on a new order which the court believes is in the child’s best interest, but does not change custody.

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DISCLAIMER – Read it, it’s important!