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Unmarried Fathers Beware: Seek Out Your Rights or the Mother May LEGALLY Move Without Telling You

FATHERS LAWYERSometimes unmarried fathers are hesitant to go to court to seek their rights for a variety of reasons:

  • They do not want to antagonize the mother.
  • They are afraid of how much child support they will have to pay if they begin legal proceedings.
  • They do not want to begin their co-parenting relationship with the mother by taking her to court.
  • They are not sure if they have spent enough time trying to work out an agreement with the mother yet.

These are all valid concerns.  However, the risk that the Father who waits takes is that they mother will move.  Until an unmarried father has established his parental rights of parenting time, the mother has no duty to tell him when she is going to move and where she is going.  Even when he does have parenting time, unless the court orders it (father needs to ask for it), mother might simply have a duty to let the COURT know where she is going, not the father.

FATHER ATTORNEYIf a father goes to court to seek his parental rights, he can ask for a restraining order while the case is pending, keeping the mother from removing the child from the jurisdiction of the court.  If he does not do this, and the mother moves, the father may have a tough time serving her with his complaint, and if he cannot serve her, he cannot get relief from the court.

Therefore, every father has to balance the concerns above with the concern that the mother might move and take the child out of his reach forever.  This is something that has to be decided on a case by case basis, there is no hard and fast rule that a father has to rush to court, but he should be aware of the risk.

CALL NOW at (614) 225-9316

FAMILY LAWYERVirginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

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Ohio Unmarried and Never Married Parent FAQs

COLUMBUS OHIO CUSTODY ATTORNEYS PARENTS NOT MARRIED In Columbus and throughout Ohio, custody attorneys are often asked about the rights of parents who are not married to the mother or father of their child.  We have answered a lot of the basic questions in other articles on our web site.  This article will focus on some of the questions frequently asked in the comments from our readers.

Columbus Ohio Custody AttorneyQ.  Are Ohio Fathers of infants who are not married to the mother allowed to have overnight visits with the child?

A.  It depends on the whether the Father has a court order for visitation, the Ohio County that issued the visitation order, the county that the case is in, and the particular Judge or Magistrate that issued the order.  If the Father has no court ordered time with his child, even if he pays child support, he has no legal right to visitation with his child.

Columbus Ohio Custody AttorneyMost Ohio counties have a local visitation schedule.  This schedule is the FLOOR, not the CEILING of the amount of time a fit parent will have with their child.  If your particular county has a separate schedule for infants, then your county’s model schedule should be used as a guideline for what to expect.  In Franklin County (Columbus), Fathers who are not married to their child’s mother typically start overnights very quickly, usually on a schedule similar to Franklin County Local Rule 27 (aka Franklin County Local Rule 22).  Other counties, such as Pickaway County, do not have overnights in their parenting schedule until the child is at least 12 months old.

CALL NOW  at (614) 225-9316 or contact us by e-mail.

Columbus Ohio Child Custody AttorneyThis is where the issue of your particular Judge or Magistrate comes into the “it depends” answer.  In Columbus, and throughout Ohio, a Judge or Magistrate can order ANY schedule that he or she believes is in the best interest of the child.  They are not required to order a schedule the same as, or even similar to, the model visitation schedule for the county.  The more modern trend is that children, especially young children, should have frequent time spent with each parent in order to properly bond with each parent.  In other words, the modern trends is that even if a mother is still breastfeeding, overnights are not off the table at any age.  Remember, breast milk can be pumped, and babies have been drinking formula for a long time.  So the issue is, what can you expect from your Judge or Magistrate?  An experienced Ohio Custody Attorney can help you understand what your particular Judge or Magistrate’s recent trends seem to be.  Of course, this does not mean that your attorney can tell you with certainty what to expect.  Instead, an experienced custody attorney can apply his or her experience with your particular Magistrate to the facts of your situation and give you a general idea regarding what the possibilities are and what you might expect.

Columbus Ohio Agree Residential Parent Change AttorneyQ.  If the parents of the child agree to shared parenting (aka joint custody, shared custody, 50/50 parenting) do they need to hire an attorney to write up the paperwork?

There are very few situations where you are required to have an attorney.  You are almost always allowed to represent yourself.  Yes, you can prepare your own paperwork.  If you do decide to hire an attorney, the attorney can only represent EITHER the mother or the father, but NOT BOTH.  This is a conflict of interest, even if the parties agree to shared parenting.  You CAN, however, prepare your own paperwork.  A shared parenting plan is not an especially easy thing to draft on your own, but if you want to (or need to) represent yourself, the website for the Clerk of Court may offer some helpful forms.  If you don’t find what you are looking for on your clerk’s website, try another Ohio county clerk of court.  You can also find some sample forms online at the Franklin County Law Library (Columbus).  The free forms page of our website has many helpful links for you if you need to draft your own paperwork.  Another option would be for one of the parties to hire an attorney to draft the paperwork, and the other party can take their paperwork to their own attorney to be reviewed.  If the paperwork is okay, the parties may want to present their own paperwork to the court.   This is called “unbundled services” and it is perfectly fine, as long as your fee agreement with your attorney is very clear about the scope of the services that are to be provided.  Many firms offer flat fees for the preparation of paperwork where the parties have agreed on all matters in advance.

CALL NOW  at (614) 225-9316 or contact us by e-mail.

Columbus Ohio Lawyer Attorney for Unmarried FathersQ.  In Ohio, can the mother of a child from an unmarried relationship take the child and leave the state if the father does not have any court ordered visitation?

YES.  In fact, even if an Ohio father DOES have court ordered visitation, this does not automatically stop the mother from moving out of state with the child.  It does, however require her to file a relocation notice with the court saying where she has moved.  The Father can then file a motion to reallocate parental rights and responsibilities or to modify parenting time.  In the meantime, until the court makes a new order, the mother is court ordered to make the child available on the same schedule in her court order.   What’s the lesson here?  If you learn that your child is going to be moved out of state, DO SOMETHING, FAST!  If you don’t know what to do, go meet with an attorney.

Columbus Ohio Attorney Stop Child from Being Moved Out of StateWhat about Fathers who have shared parenting (aka joint custody or shared custody)?  Can the mother still just take the child and move out of the state?  That depends on the language of your shared parenting plan.  Hopefully, you had the help of an experienced child custody attorney to help you draft the plan, and the plan has provisions regarding moving and what changes if either of the parents move out of the city, out of the county or out of the state (it varies from case to case).  If your plan does not saying anything about moving, all may not be lost.  Check your local rules of court for the county that issued the plan.  Your local rules may have a provision regarding moving that requires things such as a certain amount of notice before moving the child, filing a motion and having a hearing first, or (best case scenario, but rare), a provision that says if the school placement parent moves, the other parent becomes the school placement parent.

In Ohio, if  an unmarried father has no court papers giving him parental rights, and the mother of his child wants to move, she can move.  She is not even required to tell the father where she has moved.  Fathers in Ohio have no rights to time with their children or custody of their child until they go to court and get them.  Fathers often put off going to court because they are afraid that their child support will be raised beyond what they can afford.   An attorney can calculate what the child support guidelines amount would be based on your current income, so you at least know what to expect.  If a father who is not married files a complaint to establish paternity and/or parental rights, many Ohio counties, including Franklin County, will issue a temporary restraining order prohibiting the mother from permanently removing the child from the court’s jurisdiction until the father’s custody, visitation or shared parenting motion can be heard and ruled upon by the court.

CALL NOW  at (614) 225-9316 or contact us by e-mail.

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Ohio Father’s Rights News: Fast Action May Be Needed to Protect Your Rights!

Ohio Father of Unborn Child

Ohio Fathers may need to act fast to preserve their rights to parent their child. Although registering with the Ohio Putative Father’s Registry before the birth of their child or within 15 days of the birth of their child will entitled them to notice of an adoption, it does not necessarily preserve their right to stop their child from being adopted, and their parental rights from being terminated.  Recent Ohio Supreme Court decisions have promoted father’s rights and affirmed the rights of birth fathers to stop the adoption of their children.  The conclusion that can be drawn from these decisions is thats the best way to stop your child from being adopted, and your parental rights from being terminated, is to file an action in Juvenile court to establish paternity and/ or parental rights.  An action to establish paternity can be filed even before the child is born.

COLUMBUS OHIO FATHERS RIGHTS ATTORNEYIn re Adoption of G.V. and In re Adoption of P.A.C. both held that the probate court may not proceed with an adoption while there is an issue pending in juvenile court concerning the parenting of the child.  The Court applied their 2006 decision In re Adoption of Pushcar to these cases, holding that the issue in juvenile court must be finalized before the adoption may proceed.

In Pushcar, the child’s biological parents were not married.  The husband of the child’s mother filed to adopt the child, and the biological father opposed the adoption.  The biological father’s paternity action had not yet been finalized, and at issue was whether it was necessary for the biological father to consent to the adoption.  The Court held that his consent to the adoption was necessary, even if paternity had not yet been formally established.

FRANKLIN COUNTY OHIO FATHERS ATTORNEYBehind this decision is the policy concern that, “the right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law.”  In re Adoption of Masa.  Ohio recognizes the interest parents have in raising their children as fundamental, and “the state’s interest in finding the best home for the child does not arise until the parent has been found unfit.” Cruzan v. Director.

UNMARRIED MILITARY FATHER MOTHER IN OHIO PATERNITYThe Ohio Supreme Court applied this principle in the 2010 decision In re Adoption of P.A.C.  In this case, the child’s biological father, Gary Otten, was not married to the child’s mother and was not listed on the birth certificate.  Otten opposed the child’s adoption. Applying Pushcar, the Supreme Court affirmed that his consent to the adoption was necessary, even though he had not registered with the Putative Father RegistryPushcar was applied in another recent decision as well.  In In re Adoption of G.V. the biological father had registered with the Putative Father Registry before the adoption petition was filed.  The Supreme Court again held that Pushcar applied to this case, making his consent to the adoption necessary.

A putative father is an individual who may be a child’s father, but was not married to the child’s mother on or before the child was born, has not established paternity of the child, or has not been determined to be the father of the child by a court proceeding or an administrative agency.  In the event that an adoption petition is filed for a child, the Putative Father Registry operates as a system to identify an undisclosed putative father and provide him with notice of the adoption petition.  The Ohio Department of Job and Family Services suggests that anyone who thinks someone may be pregnant and that he may be the father should register with the Putative Father Registry no later than 15 days after the child’s birth.  Registration is free, and adults or minors may register.   You can read more about the Putative Father Registry here: http://jfs.ohio.gov/pfr/.

ATTORNEY WHO REPRESENTS FATHERS IN COLUMBUS OHIOPLEASE NOTE: The Ohio Putative Father Registry form only has a post office box.  If you are close to the 15 day deadline, and do not want to take a risk that your form will be processed too late, or that your form may be lost in the mail, then you should consider going down to the Putative Father Registry office in person.  There is a toll free number on the form that you can call, and if you explain your circumstances they SHOULD give you their office address.  The last published address that this office was able to find was: 50 W. Town Street, Suite 400, Columbus, Ohio, 43215.  Remember, it is up to YOU to make sure you have their current address, so pick up the phone and call them, don’t rely on this website to make sure you have the current address.

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

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 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 established 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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Columbus Ohio Father’s Rights Attorney

Father Infant Visitation Ohio Father's LawyerColumbus Ohio Father’s Rights Attorney

In Ohio, does a father have a right to get visitation, even if paternity has not yet been established?

Does the law regarding an Ohio Father’s Rights include  the right for the father to request temporary orders regarding visitation or custody, even if paternity has not yet been established?

Franklin County Ohio Father's Rights LawyerThe answer is YES.  Since  the husband is presumed to be the biological father when a child is born to a couple who is married, this issue applies to Ohio Father’s Rights situations where the mother and father of a child were never married.  Ohio Revised Code 3109.043 (Temporary Custody Order While Action is Pending) states the following regarding an Ohio Father’s Rights to visitation and/or custody while a court case is pending, or temporary orders:

In any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child, when requested in the complaint, answer, or counterclaim, or by motion served with the pleading, upon satisfactory proof by affidavit duly filed with the clerk of the court, the court, without oral hearing and for good cause shown, may make a temporary order regarding the allocation of parental rights and responsibilities for the care of the child while the action is pending.

If a parent and child relationship has not already been established pursuant to section 3111.02 of the Revised Code, the court may take into consideration when determining whether to award parenting time, visitation rights, or temporary custody to a putative father that the putative father is named on the birth record of the child, the child has the putative father’s surname, or a clear pattern of a parent and child relationship between the child and the putative father exists.

Effective Date: 05-17-2006

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Licking Union Richland Knox Morrow County Ohio Father's AttorneyThere are several things about that statute that you want to read carefully.  Every word matters.  Here is some additional information about important phrases from the statute:

PROCEEDING PERTAINING TO THE ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES :

    • First, this means a COURT proceeding.  It does NOT apply to an administrative proceeding for child support through the CSEA.  The CSEA has no authority to order visitation.  Sometimes, during an administrative child support proceeding, if the parties agree, the CSEA attorney or liason will give the parties a form to seek court ordered visitation, but that form is still submitted to the COURT, and is not ordered by the CSEA.
    • Second, notice the phrase “parental rights and responsibilities”.  This means that if a Father files a motion in an actions which was only filed as a grandparent visitation proceeding, the court may find that it has no authority to make temporary orders for visitation for the Father.  The Father may file a motion to be made a party to the grandparent visitation proceeding, but unless he files a Complaint for the Allocation of Parental Rights and Responsibilities (and, if applicable, for establishment of paternity), the court may find that the action is not a “proceeding pertaining to the allocation of parental rights and responsibilities), and therefore deny the Father’s request for Temporary Visitation.  (The Mother would, at that point, still have full custody of the child pursuant to 3109.042, and would not need temporary orders for visitation.)
    • Temporary Orders are available during the INITIAL proceeding, not in post-decree proceedings.
    • Temporary Orders of visitation are not available in a court proceeding which is merely an objection to an administrative child support order.  The court proceeding has to include a complaint, answer or counterclaim for parental rights and responsibilities.

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Visitation in Ohio no not DNA tests birth certificate child supportWHEN REQUESTED IN THE COMPLAINT, ANSWER OR COUNTERCLAIM, OR BY MOTION SERVED WITH THE PLEADING:

To establish an Ohio Father’s Rights to temporary visitation or custody, the Father, or his Ohio Father’s Rights Attorney, should request temporary orders pursuant to Ohio Revised Code 3109.043 in his Complaint, or his Answer to the Mother’s Complaint, if the Mother filed the Complaint.  In the alternative, the Father can seek his Ohio Father’s Rights by filing a motion.  It is unclear from the statute whether his Motion must be served with his Complaint, Answer or Counterclaim, but it is the better practice to file the Motion at the outset of the case.  In addition, sometimes a request tucked at the end of a Complaint Answer or Counterclaim escapes the notice of the court at the initial hearing, but a Motion which is pending on the Court’s Docket is more likely to be noticed and addressed at the first hearing.

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Paternity established no child support order visitation go to courtSomething that is important to note is that if child support is not yet established, but paternity is established (perhaps through an Affidavit signed at the child’s birth which allows the Father’s name to be on the child’s birth certificate), Ohio judges and magistrates almost always establish a temporary order of child support.  If the father, or his attorney, has not already filed a Motion for Temporary Orders or requested temporary orders in his complaint, this would be a great time to point out that Ohio Revised Code 3119.08 mandates the following:

Whenever a court issues a child support order, it shall include in the order specific provisions for regular, holiday, vacation, parenting time, and special visitation in accordance with section 3109.0513109.11, or 3109.12 of the Revised Code or in accordance with any other applicable section of the Revised Code.

Effective Date: 03-22-2001

Ohio County Temporary Orders Affidavit Motion Affidavit Temporary Orders

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UPON SATISFACTORY PROOF BY AFFIDAVIT:

If you don’t know what an affidavit is, there are several sources you can consult to make sure you know what it is and you are preparing your affidavit correctly.  Here are some additional resources regarding Temporary Orders Affidavits:

http://www.cornwell-law.com/08/temporary-orders-affidavits/

http://temporaryorders.com/

Book and Forms Temporary Orders Affidavits in OhioWITHOUT ORAL HEARING AND WITH GOOD CAUSE SHOWN:

This means that the court does not have to require a full hearing, with the presentation of testimony, to make temporary orders.  It also means that the burden is upon Fathers to show the court good cause in their affidavits regarding why they should have temporary custody or visitation.  If your county doesn’t have a form affidavit that you can use and which asks all the court needs to know about the best interest of the child, then you may have to submit narrative affidavits.

CALL NOW  at (614) 225-9316 or contact us by e-mail.

 

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