Virginia Cornwell is an Ohio Family Lawyer in Columbus, Ohio and an Ohio State Bar Association Certified Family Relations Specialist.  She helps clients throughout Ohio and accepts cases from all 88 Ohio Counties.

What is community property in Ohio?  We get that question a lot from our divorce clients.  The truth is, there is no community property in Ohio because Ohio is not a community property state.  Ohio law uses the term “marital property”.  Naturally, the next logical question would be “Okay, so what is considered marital property in Ohio?”  The answer is simple.  Everything is considered marital property in Ohio unless you can prove that it is separate property.

SEPARATE ASSETS

So what is separate property in Ohio?  Ohio Revised Code 3107.171 governs property division during a divorce, legal separation or dissolution.  (There is no property division in an annulment because the marriage is invalidated.)  That statute defines separate property as being any real property (real estate) or personal property (every kind of property EXCEPT real estate) that a court finds to be one of these things:

• An inheritance by one spouse
• Any property that was acquired by one spouse before marriage
• Passive income and appreciation from separate property.  “Passive income” means income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse.
• Any property acquired by one spouse after a decree of legal separation issued under section 3105.17 of the Revised Code;
• Any property excluded by a valid antenuptial agreement (prenuptial, aka a “prenup”) ;
• A personal injury award, (except for loss of marital earnings)
•  Any gift that is made after the marriage and  is proven to have been given to only one spouse

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MARITAL ASSETS

So if property doesn’t fall under the category of separate property, then what is it?  The answer is MARITAL PROPERTY.  Ohio is not a community property state.  Ohio law presumes everything is marital property until the party asserting the claim of separate property PROVES IT.  If you can prove that something is separate property, then it is marital property, subject to division by the court in a divorce, dissolution or legal separation.  The same law that defines separate property in Ohio defines marital property.  Ohio Revised Code 3105.171 says that the following types of property are marital:

•  All property currently owned by either spouse, including, retirement benefits and deferred compensation, that was acquired by either during the marriage;
• All interest that either spouse currently has in real or personal property, including retirement benefits and deferred compensation, that was acquired by either during the marriage;
• All income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either spouse during the marriage;
• “Marital property” does not include any separate property.

Sounds simple enough, doesn’t it?  Not so fast.  In our next article about marital and separate property we’ll talk about the burden of proving separate property, “tracing” separate property, and what happens when separate property is “transmuted”, or becomes untraceable.

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DISCLAIMER – Read it, it’s important!

Virginia Cornwell is a Columbus Ohio Family Law Attorney who assists clients with family law matters throughout Ohio.

Trying to end your marriage in Ohio can be difficult if the wife is pregnant.  Difficult, but not impossible.

Ironically, the difficulty does not come from any obstacle in the law, but rather from the practices in your county, or from the preferences of the Judge in your case.  Ohio law does not contain any authority for a Judge or Magistrate to refuse to grant a divorce, dissolution, annulment or legal separation on the basis of pregnancy.  Nevertheless, for several reasons, many Ohio courts will delay granting the divorce (or ending the marriage) if the wife is pregnant.

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One reason that Ohio courts will sometimes decline to grant the divorce until the child is born is so that child support will be established.  The court does not want the child to go without support for several months while paternity is established and support is ordered through the child support enforcement agency.

Another reason the court may be reluctant to grant the divorce while the wife is pregnant may be that the Judge does not want the mother and father to have to go through yet another court action to establish parentage, support and parental rights.   In such cases, it is possible that the domestic court believes that if the paternity is not established in the divorce case, that the father will have to seek parental rights in a juvenile court case.  The domestic court Judge may also be concerned that if the father has to file a separate action in juvenile court to establish paternity of the child, he will be disadvantaged.  For various reasons, unmarried fathers in Ohio juvenile courts sometimes have to work harder to receive the same rights they would receive in domestic court.

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However, Ohio Revised Code 3111.06(A)  states:

If an action for divorce, dissolution, or legal separation has been filed in a court of common pleas, that court of common pleas has original jurisdiction to determine if the parent and child relationship exists between one or both of the parties and any child alleged or presumed to be the child of one or both of the parties.

This would allow the domestic relations court to retain jurisdiction over the parents for purposes of establishing paternity of the unborn child.  The statute does not limit such jurisdiction only to the divorce proceedings.  Thus, there appears to be no legal reason the court cannot grant the divorce now, and deal with paternity, support and parental rights later, on a post-decree basis in the domestic court (divorce, dissolution, annulment, or legal separation) case.

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If the parties want to get divorced NOW, and do not want to wait until the child is born, there may be some steps the parties can take to convince the court to approve the divorce.

First, the issue of whether a Judge will or will not grant a divorce while the wife is pregnant often boils down to the preferences of the individual Judge (and possibly Magistrate) assigned to your case.

Second, the level of cooperation between the parties may have some influence on whether the Judge will trust that the issues of paternity, support and parental rights will be dealt with quickly after the child is born.  There are several ways the parties can cooperate to assure the Judge there is no reason to hold the case open.

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• If the husband and wife know that the husband could not possibly be the father of the baby, they should stipulate to this fact in the divorce decree.  The court can then make findings rebutting the legal presumption that the husband is the father and “disestablish paternity” in the divorce decree.
• The parties can give the court stipulated findings of fact that contain all information needed to make a child support order.
• The parties could bring a post decree motion to establish paternity, support and parental rights of the child to the court for filing on the day of the divorce decree, file the motion on the day of their final hearing, and set the first hearing date to occur in front of the same judge a few weeks after the child’s due date.  If either of the parties wants genetic testing, they could agree to the manner in which the genetic testing will be done.  If the parties use a private service for the testing, they could have the results before they attend their first hearing.
  

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You might wonder how courts can just decide to hold a divorce case open for many months against the parties’ wishes.  First, domestic courts have broad discretion.  They cannot just do anything they want, but they can do a lot.

Second, even if a party were to try to take the issue up the court of appeals, babies develop faster than appellate courts make decisions.  By the time your case was heard in the court of appeals, the baby would be born, rendering the issue on appeal moot.

Third, even if somehow the court of appeals agreed to hear your case quickly, I’ll say it again:  domestic courts have a lot of discretion in Ohio.  They are probably going to be allowed to do what they think is best in this case.

An Ohio family law attorney can help you decide what is the best course of action in your case.

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DISCLAIMER – Read it, it’s important!

Virginia Cornwell is a Columbus Annulment Attorney and Columbus Family Law Lawyer, representing clients throughout Ohio.

  1.    Annulment (sometimes called annulment of marriage) is not the same thing as dissolution (sometimes called dissolution of marriage, dissolutionment, disolutionment, etc). In a dissolution, the marriage is ended by agreement, but as far as the law is concerned, the parties had a legal marriage, it is just over now. In Annulment, the marriage is voided, erased. Legally, the law has erased the marriage.

2.  Unlike dissolution, where the parties must agree on everything and file together, an Annulment can either be agreed OR contested.  That means that the parties can either file together, or one person can file for annulment on his or her own.

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3.  Just like in divorce, there must be grounds for annulment in order for an Ohio court to grant the annulment.  The grounds for divorce in Ohio are NOT the same as the grounds for Annulment.  The most notable difference in the grounds is that in Annulment, the parties cannot simply agree that they are incompatible.  There has to be some defect in the marriage that is serious enough that the law will allow the marriage to be erased instead of simply ended.  To read more about the possible grounds for annulment of marriage in Ohio, click here.

4.  Even if grounds for annulment exist in your case, it doesn’t automatically mean you can file for annulment.  Usually, it has to be the “aggrieved party”, meaning the person who was wronged, who files for the annulment.  To learn more about who is the aggrieved party, read Ohio Revised Code 3105.32, and Ohio Revised Code 3105.31.  In addition, there are time limits for annulment.  In many cases, the person who was wronged must file within two years, but there are different time limits for different grounds for annulment.  To read more about time limits for Annulment in Ohio, click here.

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5.  Ohio has a separate statute dealing with changing names after an annulment.  In annulment cases, the court may, if it wants to, change the name of a person back to what it was before the parties married, even if neither of the parties requests the name change.  This differs from the Ohio divorce statute about changing the party’s name , which requires the consent of the parties to change a party’s name.  This may be especially important in a case where the husband is the aggrieved party and he wants to have the court “take his name back” from the wife.

6.  Ohio law allows people to get restraining orders against the other person while an annulment case is pending, in order to prevent the other spouse from harassing or harming themselves or their children.  The restraining orders can also prevent people from leaving the state with a child, selling or hiding assets, etc.  See Ohio Rule of Civil Procedure 75 (I).

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7.  Even though the court may ultimately find the marriage to be invalid, the court may (but is not required to) make “temporary orders” of support while the annulment is pending.  The court can also make orders regarding temporary custody while the case is pending.  Temporary orders might be issued in a contested annulment case, but are almost never ordered in annulments that are filed jointly.  This is probably because when the parties jointly file the annulment papers, they want the marriage to be over as soon as possible, and the case will not be open long enough for temporary orders to be needed.

8.  Annulment in Ohio may undo the marriage, but it does NOT undo the legitimacy of any children that were born during the marriage.  The children still have the presumption of paternity that is afforded to children born during a marriage.

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9.  A court cannot award BOTH an annulment and a divorce (or legal separation, dissolution, etc.)  If one party files for annulment and the other party counterclaims for divorce or legal separation, that does not mean that annulment is now off the table.  The court must decide if there are grounds for an annulment.  Even if there are grounds for annulment, some of the grounds for annulment are also grounds for divorce.  The best policy is for the court to allow the aggrieved party their choice of remedy, assuming that party has met his or her burden of proof.

10.  In annulment, unlike divorce or dissolution (and sometimes legal separation), there is no property division, and no spousal support after the marriage is annulled.

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DISCLAIMER – Read it, it’s important!

Virginia Cornwell is a Columbus Ohio Child Support Attorney and an Ohio State Bar Association Certified Family Relations Specialist.

• How far back can child support go in Ohio?
• I didn’t even know about this baby, and now, 10 years later she is going for child support all the way back to birth.  Can she do that?
• In Ohio, is there a certain age where, if you haven’t already applied for child support ,you can’t get back support?
• Is there a statute of limitations on child support in Ohio?

The key to answering all of these questions is PATERNITY.  Whether or not paternity has been established is the primary factor in determining how far back child support can go in Ohio.  The secondary factor in determining how far back child support will go is whether you request child support through the child support enforcement agency or file a Complaint (or Motion) in court.

Ohio Revised Code 3111.05 (statute of limitations)  says an action to determine the existence or nonexistence of the father and child relationship (paternity, or parentage) may not be brought later that five years after the child reaches the age of 18. That means that in Ohio paternity can be established up until the age of 23.

Q.  Who can file an action to establish paternity in Ohio?

A.  According to Ohio Revised Code 3111.04, the following people can bring an action for paternity:

• the child or the child’s personal representative
• the child’s mother or her personal representative
• a man alleged or alleging himself to be the child’s father or his personal representative
• the child support enforcement agency of the county in which the child resides IF the child’s mother, father, or alleged father is a recipient of public assistance or of services under Title IV-D of the “Social Security Act,” 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended.  Public assistance, as used in this statute, means:

• Medicaid
• Ohio works first
• Disability financial assistance

Establishing Paternity as an Adult in Ohio

The issue of filing a paternity action in order to seek child support after a child turns 18 is a murky issue in Ohio, and the nuances of this issue are still being determined by Ohio courts.

On the other hand, you have Ohio Revised Code 3111.05.  This statute of limitations, which we discussed at the beginning of this article, clearly states that a paternity action can be brought by the mother, father, child or CSEA Agency  until the child’s 23rd birthday (five years after the child turns 18).  Sounds simple enough right?  Wrong.  The tricky part is, that according to the Supreme Court of Ohio in Carnes v. Kemp,, 104 Ohio St. 3d 629, if you are seeking child support after the child has turned 18, apparently that can only be done when the adult child files to establish paternity AND seek child support.

The issue presented to the Ohio Supreme Court in Carnes was “Does a court have subject-matter jurisdiction to award retroactive child support payments in a paternity action initiated after the child has reached the age of majority?”  The Supreme Court of Ohio answered the question with a YES.  The Court noted that Ohio Revised Code 3111.13(C) states that a juvenile court has the authority to make a support order once a parentage determination is made, and that this means that 3111.05 “extends the length of time in which to bring a parentage action, and 3111.13(C) does not limit a juvenile court’s jurisdiction in a parentage action to award retroactive child support to minor children only.  This means that an adult, emancipated child can seek retroactive child support until his or her 23rd birthday.  If granted, the time period for retroactive child support could be from birth through age 18.

Okay, so, if you read the Carnes case, plus the statutes, you’d think that, since a mother can file an action for paternity until a child is age 23, that a mother would also be able to file for retroactive child support until the child turns 23, just like the adult child did in Carnes, right?   Maybe not.  In the case In re J.V., E.V. Appellant, E.V., the mother of J.V., filed for an action for retroactive child support.  The court of appeals said that because the child was over 18 the court lacked subject matter jurisdiction to award child support to the mother.  The court noted that unlike the Carnes v. Kemp case, no action for paternity had been filed, but said that even if the mother HAD filed an action for paternity, the Carnes case only held that an adult emancipated child could establish paternity and get 18 years back support after reaching the age of 18.  The Court of Appeals in In re J.V. said that the Carnes case did NOT say that a mother had a right to file a claim for retroactive child support after the child turns 18, only that an adult child has the right.  This interpretation of Carnes may not be completely consistent with the Supreme Court’s holding in Carnes, and it is very likely that there will be more decisions addressing this issue in the next few years.

So what’s the lesson here?  Ohio fathers should establish paternity as early as possible.  Because guess what – if the child waits until it is an adult to establish paternity and seek support – you may get a whopper child support award of 18 years, all at once, and the support will be set at what you are making when the child is as old as 23, instead of what you are making when the child is a newborn.

Q.  Where do you go to file a divorce in Columbus, Ohio (Franklin County)?  

If you have a Columbus, Ohio divorce attorney, your attorney will file the divorce for you.  If you are filing your own divorce, you will go to the Franklin County Court House, Clerk of Court, Domestic Relations Division, 373 S. High Street, Fourth Floor, Columbus, Ohio, 43215.  Click here to see a map of the area, and click here to get driving directions.

Q.  What is the phone number for the Franklin County Family Court?  What is the phone number for the court in Columbus Ohio that handles divorce, dissolution, annulment and legal separation?

You can find a phone listing for Columbus, Ohio divorce, dissolution, annulment and legal separation court by clicking HERE.  You should be warned though, that these phone numbers are NOT the phone numbers of people who can give you legal advice.  Only attorneys can give you legal advice.  If you want to know what the law is, if you have a case, if this is the right county or court to file your case in, how to prepare your legal papers, etc. – those things are all legal advice.  The employees at the court cannot and will not answer those questions – even if you have just one question.  Only an Ohio family law attorney or the law itself can legally answer those questions for you.

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Q.  Where can I find a copy of Franklin County Ohio Local Rule 27 (Juvenile Court Rule 22)? 

You can get a copy of the entire Franklin County Ohio Domestic Relations Court Local Rules here.   If you only want to see Local Rule 27 /Local Rule 22, (black with a white background, difficult to print or copy/paste,) click here.  If you find that copy difficult to read or print, take a look at the copy of Franklin County Local Rule 27 posted on our website.

Q.  I have Local Rule 27 visitation.  My weekend falls right before a holiday weekend that is supposed to be my holiday weekend?  Do I get to have my kids for my weekend AND the holiday?  What happens the weekend after the holiday?

Franklin County Local Rule 27 addresses problems like this in paragraph 5(a), which says:

In the event of a conflict between regular parenting time and holiday parenting time, holiday parenting time prevails.  The alternating weekend parenting time schedule continues, however, as if the holiday had not intervened.  This means that one parent may have the children three weekends in a row.  This process equalizes itself over the course of time for each parent.

This means that holiday parenting time trumps regular (non-holiday parenting time).  The weekend that is missed because of the holiday is not made up.  Over the course of two years, each parent should get the time that they should have.

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 Q.  Who gets the children for Easter under Franklin County Local Rule 27? 

Franklin County Local Rule 27 does not specify which parent receives Easter.  If it falls at end of Spring Break, and there are no other orders which specify what happens to the Easter holiday, then the parent who has the child for Spring Break will also have the child for Easter.  Easter, like many religious holidays, are not provided for in Local Rule 27.  Columbus, Ohio families are very diverse, and not everybody celebrates the same holidays.

Franklin County Juvenile Rule 22 / Local Rule 27 paragraph 5(c) has a blank line for “days of special meaning”.  This is where parents, if they agree, would write down the religious holidays and days of special meaning that the mother or father want to celebrate with the child, and how they shall be split between the parents.  So, whether your holiday is Chanukah, Easter, Kwanzaa or other holidays, if you want those holidays included in your order, it is up to you to either write those holidays in, or ask the court to include the holidays as part of your order.

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Q.  Where can I find Franklin County Ohio Court Forms? 

The Clerk of Court’s office has SOME of the forms on the walls in their office.  You can also find forms on both the main Franklin County Court of Common Pleas website and the Franklin County Domestic Relations Court website.   The Supreme Court of Ohio has SOME domestic relations forms that can be used in any county in Ohio.  You can also find some samples of pleadings that you must prepare yourself on the Franklin County Ohio Law Library’s website.  You can also look on the FORMS page of our website .

Q.  I got a divorce in Franklin County, and I have since moved.  Do I have to file any forms to let the court and the Child Support Enforcement Agency know I have moved?  

YES.  Not only do you need to let them know, but you have to let them know using the form they prefer to use, otherwise you may not receive important notices.  To let the Franklin County Domestic Relations Court know you have moved, you need to file this form.  To let the Franklin County CSEA know you have moved, you need to send this form to them.  To look at more Franklin County CSEA child support forms, take a look at their forms page.

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Didn’t find the information you wanted?  Feel free to leave us a comment below.  We do not answer comments posted on the blog directly, but if we receive several comments asking similar questions we might put up a blog post on the subject.  If you need help with your problem right away, please call our office to have a consultation with Virginia Cornwell.  A consultation does not mean that you intend to hire an attorney, it just means that you want to have your questions answered.  If you would be more comfortable, you can have a consultation on the phone and you don’t even need to come in to the office!

DISCLAIMER – Read it, it’s important!

Virginia Cornwell is a Columbus Ohio Family Law Attorney and an Ohio State Bar Association Family Relations Specialist.

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.

Q.  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.

Most 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.

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This 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.

Q.  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.

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Q.  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.

What 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.

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DISCLAIMER – Read it, it’s important!

Family law is a term that is often misunderstood.  People sometimes think that a family law attorney is a lawyer that you hire when you want to sue your family.  In a way, that’s true, but family law does not cover every area that might involve litigation between you and your family.  Traditionally, family law includes areas of law that are covered when you marry someone or have a child with them.  Modern family law also includes non traditional families, same sex parents, relative and grandparent custody and more.

Family law is, for the most part, a matter of state law.  That is not to say there is no federal law regarding family law, but it is first, and foremost a matter for the states to decide.  Ohio Family Law is the sum of all the Ohio laws which deal with issues such as:

Ohio family law statutes are contained in the Ohio Revised Code.  The provisions of the Ohio Revised Code which are most relevant to family law are:

• Title [31] XXXI DOMESTIC RELATIONS – CHILDREN
• Title [21] XXI COURTS – PROBATE – JUVENILE, Chapter 2151: JUVENILE COURT

Sometimes federal laws are enacted to provide enforcement of family law matters, such as the Uniform Interstate Family Support Act (UIFSA).   When competing laws of different states are causing conflicts throughout the country, sometimes federal legislation is enacted to provide some predictability among state laws, such as matters of  Interstate Jurisdiction (UCCJA, PKPA, UIFSA), but federal regulation of family law matters is the exception, not the rule.  If you want to know what family law is in your state, start with state law.

If you have been served with papers in an Ohio family law, custody or divorce case, your first thought is probably “What does this mean?  What do I have to do?  Do I need a lawyer?”  There are very few situations where you are absolutely required to have a lawyer.  Most family law cases do not require you to have a lawyer in order to appear and defend your case.  Everyone has the right to defend themselves in court.  However, the question of “Do I need an attorney?”  is a very different question from “Can I afford not to have an attorney?”   Most of the time the law is complicated, and people without an attorney have a hard time presenting their evidence.  But if you know you cannot afford an attorney, then you should show up and let the court know you want to defend yourself.  If your case is one of the few situations where you are absolutely REQUIRED to have an attorney, the court will tell you.

DISCLAIMER – Read it, it’s important!

Finding a good attorney for your family law needs can be a challenge.  Just as every attorney is unique, so is every client and every case. Almost every case has one or more weaknesses. Even if you are fortunate enough to have the rare situation where all of the law and all of the facts line up, that does not mean that you will be happy with the process, and the pace that things move through the courts.  Even if you have all the time in the world, you probably don’t have all the money in the world.

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So what’s the point we’re getting at?  Here it is, plain and simple –  almost every family law case has some bad news.  The only exception is a case where the parties all agree regarding what should happen, and they simply need an attorney to represent one of the parties, (it would be a conflict of interest for one attorney to represent all of the parties) draft the paperwork and guide them through the process of getting the court order or child support enforcement agency (CSEA) order they need.   When you meet with an attorney, if you aren’t hearing any bad news, and your case is contested, then maybe you need to discuss the matter a little more.  Your case is the sum of the good news and the bad news.  You should talk about both before you begin, and make a decision with an understanding of the strengths and weaknesses of your case.  You cannot help your attorney with your case if you don’t understand the strengths and weaknesses.

You may have a situation where your children’s life has become intolerable, but the financial cost and legal risk of going back to court seems unbearable too.  In that case, you need to sit down with an attorney that will answer your questions, in plain English, and give you the information you need to choose between a rock and a hard place.  A good attorney will give you that information, and then it’s up to you to take that information regarding the law, the discretion the court has in your situation, and work with your attorney to make the best decision.  At the end of the day, it’s your life, and you are going to have to live with it.

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Beyond just getting the straight skinny on the good and bad news, you need to pick an attorney that you can talk to, and one that talks to you.  Clients have a right to know what is going on in their case and be involved in the decisions.  If you feel like your attorney is not treating you with respect, you either need to discuss it with your attorney and solve the problem, or find another attorney.  If your family law attorney cannot treat other attorneys with some respect as well, then you are more likely to pay higher legal fees and less likely to achieve what you want without an expensive trial and the risk of letting a judge decide your case without your participation.  If your attorney’s approach is keeping you from settling your case, it might be time for you to deliver some bad news of your own.  If you’re concerned, talk to your attorney about it.

Is every all or nothing with your lawyer?  Is that attitude coming from you as well?  That can be a risky and expensive approach.  Sometimes, with the help of your attorneys, you and the other party can agree on a few small issues, but the larger issues remain contested.  Guess what?  You can put on an Agreed Entry regarding the one or two things, and save both parties a bunch of money.  Guess what else – agreeing on little decisions often leads to agreeing on bigger decisions.  Maybe you do have some legitimate deal breakers, some issues that you cannot meet in the middle on.  You can still narrow down the issues.

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For example, perhaps you cannot agree who should pay child support or how much it should be.  That does not mean that you cannot stipulate regarding each party’s income, cost of health insurance or any other  issues that you have  investigated and have no legitimate dispute about.   Why not turn a five day trial into a one day trial and save both parties a ton of money?  Unfortunately, some attorneys cannot accept this approach.  If this is something that makes sense to you, but not to your family law or Ohio custody attorney, you may have a problem.  Perhaps you should have this discussion at your first meeting with your attorney to make sure that you see eye to eye on this issue.  It’s important, really important.

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DISCLAIMER – Read it, it’s important!

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 30 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.

In 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.

Behind 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.

The 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 Registry.  Pushcar 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 30 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/.

PLEASE NOTE: The Ohio Putative Father Registry form only has a post office box.  If you are close to the 30 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.

DISCLAIMER

If you have a custody or visitation order from another state, and you now live in Ohio, the process for registering your order with the courts in the state of Ohio is actually relatively simple.  Unfortunately, jurisdictions is an issue that can be complicated and sometimes difficult to understand.  However, if the state that made the order had jurisdiction to make the order, then registering it in Ohio is pretty basic. Here is a link to a packet of  forms which is a pretty good resource for registering a foreign decree in Ohio.  You can white out or cross out the name of the county and change it to your county’s name.  The filing fee might be different in your county as well, so you need to check that by either viewing your county’s website, or calling the clerk of court in your county.

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Registering your decree means that you have the right to have an Ohio police officer enforce your decree just as they would if it were made by a court in Ohio.  It does not mean that jurisdiction has moved to Ohio and that Ohio courts can CHANGE the order.  Ohio courts can only enforce the order.  The other parent can contest registration of the order, but only on a very limited basis.

Before you file your paperwork to register your order in Ohio, you should review the law to make sure you have dotted all your i’s and crossed your t’s.   To see the laws about child custody in Ohio and which state has jurisdiction, see Ohio Revised Code 3127.

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DISCLAIMER – Read it, it’s important!