Family Law / Child Custody and Visitation / Child Custody Information
Oftentimes custody cases are resolved before a trial is necessary. However, if this does not happen, the Court must determine what is in the child’s best interest. Oftentimes an advocate for the child is appointed. This advocate is called a Guardian ad Litem or GAL. The Guardian ad Litem conducts an investigation as to what is in the child’s best interest. The Guardian ad Litem interviews the parents, other people, the child and conducts home visits of both parents. The GAL then makes a recommendation to the Court. While the Guardian ad Litem’s recommendation is not binding on the Court, the Court often times considers the recommendation when determining custody and parenting time. Consequently, it is most beneficial to receive a positive recommendation. Roberta Roberts and her office are knowledgeable and effective in presenting evidence to the Court and the Guardian ad Litem to obtain a favorable outcome for the client.
No child custody arrangement is ever permanent. Circumstances change, parents change, and children change. What custody arrangement worked when your child was three may no longer be in the child’s best interest now. Sometimes, the need to modify custody is simply unavoidable.
Roberta Roberts provides the experience and perspective to cut through emotional barriers and resolve child custody. Ms. Roberts helps clients work through tough issues for a negotiated solution, or provide hard-nosed courtroom advocacy when parents are at an impasse.
When making a custody determination, the court must consider the “best interest of the child.” Contrary to popular belief, this is not a general, nondescript standard. The factors the court must consider are explained in a statute.
The Wishes Of The Child’s Parents Regarding The Child’s Care
In divorce cases, this factor does not favor one parent or the other as if both parents are in court seeking custody, both parents wish to be named the child(s) custodian. In Juvenile court this comes up, for example; a non parent is seeking custody of a child and one of the birth parents supports that non parent as having custody.
The Child’s Wishes
Contrary to popular belief, children (regardless of their age) do not get to simply choose where they want to live. The wishes of the child is one of the factors the court considers. The general belief people have is that if the child is 12 years old or older, they may simply choose where they want to live. I often have cases where, for example, a teenager knows they can ‘run the streets’ at the other parents house, so they state they want to go live with that other parent. Children do not always make the best choices. Thus, it would not make sense that they may simply choose where they want to live. Their wishes combined with what is in their best interest is what the court attempts to decide.
The Child’s Interaction and Interrelationship With The Child’s Parents, Siblings, and Any Other Person Who May Significanlty Affect….
This factor is much broader than the first two factors above. The court will consider the child’s relationship with other people involved in their life. The most obvious relationship the court will examine is between the child and their parents. The court will also examine the child’s relationship with their brothers and sisters and any other person significant in their life. This may involve friends, grandparents, etc.
The Child’s Adjustment To The Child’s Home, School, and Community
This factor may be even broader yet. The court will consider how the child is behaving (or adjusting) at home. The court will look at how the child is doing in school (are there behavior issues, how is the child’s grades, is the child involved in extracurricular activities, is the child getting to school on time or is the child missing school, etc.). The court will consider how long has the child lived in the community they currently reside, does the child play sports or other community activities, how does the child feel about his community, school, home, etc. and does the child seem well adjusted there. The court may consider whether the child has friends or teammates in the neighborhood and what does the child do in their free time.
The Mental and Physical Health Of All Persons Involved In The Situation
The parties may ask the court to order psychological evaluations to determine the mental health of the other parent. In addition, the parties may seek to introduce evidence of the other parent’s physical health. If one parent is suffering from some type if mental health issue that prevents or hampers their parenting ability, the court will consider that. The court will also consider if a parent is suffering from some physical ailment that prevents them from being able to parent the child. I have experienced this in cases where it is shown that one parent is actively involved with the child and takes the child outside for physical activity such as walking, bike riding, etc. whereas the other parent allows the child to sit inside and play video games (this would be particularly important, if for example, the child was suffering from health problems associated with being overweight or leading a sedentary lifestyle).
The Parent More Likely To Honor And Facilitate Court-Approved Parenting Time Rights Or Visitation and Companionship Rights
This factor is fairly self explanatory. The court will make assumptions about which parent would be more likely to honor court ordered parenting time. The court would consider which parent seems to facilitate the relationship between the child and the other parent. The flip side of this is that the court would consider whether one parent seems to attempt to interfere with the relationship between the child and the other parent. This factor is more prominent in parental alienation cases but is a consideration to lesser degrees in many cases.
Whether Either Parent Has Failed To Make Child Support Payments
The court will consider whether a parent who has been ordered to pay child support has failed to make the payments. A person seeking custody of a child should be current on their child support obligation. However, this factor alone is not determinative. It is possible to be behind in child support but prevail on the other factors in the statute.
Whether either Parent Or Any Member Of The Household Of Either Parent Previously Has Been Convicted………
This is a very serious factor for the court to consider. Obviously the court would not want to place a child with a parent or in a household with a parent if the parent or someone else in the household has pled guilty or been convicted of, for example, of domestic violence or some criminal offense involving harm to a child.
Whether The Residential Parent Or One Of The Parents Subject To A Shared Parenting Decree has
A parent who willfully and continuously denies the other parent court ordered parenting time is severely frowned upon by the court. Such behavior could result in the court awarding the other parent custody if the other factors support such a ruling.
Whether Either Parent Has Established A Residence, Or Is Planning to Establish A Residence, Outside This State
This factor is rarely an issue however, it does arise when one parent is residing in Ohio and the other parent wishes to move out of state. The court would consider how far the other parent is moving, why the other parent is moving, how close of a relationship the child has with the non moving parent, etc.
3109.401 State policy on parent and child relationship.
(A) The general assembly finds the following:
(1) That the parent and child relationship is of fundamental importance to the welfare of a child, and that the relationship between a child and each parent should be fostered unless inconsistent with the child’s best interests;
(2) That parents have the responsibility to make decisions and perform other parenting functions necessary for the care and growth of their children;
(3) That the courts, when allocating parenting functions and responsibilities with respect to the child in a divorce, dissolution of marriage, legal separation, annulment, or any other proceeding addressing the allocation of parental rights and responsibilities, must determine the child’s best interests;
(4) That the courts and parents must take into consideration the following general principles when allocating parental rights and responsibilities and developing appropriate terms for parenting plans:
(a) Children are served by a parenting arrangement that best provides for a child’s safety, emotional growth, health, stability, and physical care.
(b) Exposure of the child to harmful parental conflict should be minimized as much as possible.
(c) Whenever appropriate, parents should be encouraged to meet their responsibilities to their children through agreements rather than by relying on judicial intervention.
(d) When a parenting plan provides for mutual decision-making responsibility by the parents but they are unable to make decisions mutually, they should make a good faith effort to utilize the mediation process as required by the parenting plan.
(e) In apportioning between the parents the daily physical living arrangements of the child and the child’s location during legal and school holidays, vacations, and days of special importance, a court should not impose any type of standard schedule unless a standard schedule meets the needs of the child better than any proposed alternative parenting plan.
(B) It is, therefore, the purpose of this chapter, when it is in the child’s best interest, to foster the relationship between the child and each parent when a court allocates parental rights and responsibilities with respect to the child in a divorce, dissolution, legal separation, annulment, or any other proceeding addressing the allocation of parental rights and responsibilities.
(C) There is hereby created the task force on family law and children consisting of twenty-four members. The Ohio state bar association shall appoint three members who shall be attorneys with extensive experience in the practice of family law. The Ohio association of domestic relations judges shall appoint three members who shall be domestic relations judges. The Ohio association of juvenile and family court judges shall appoint three members who shall be juvenile or family court judges. The chief justice of the supreme court shall appoint eight members, three of whom shall be persons who practice in the field of family law mediation, two of whom shall be persons who practice in the field of child psychology, one of whom shall be a person who represents parent and child advocacy organizations, one of whom shall be a person who provides parenting education services, and one of whom shall be a magistrate employed by a domestic relations or juvenile court. The speaker of the house of representatives shall appoint two members who shall be members of the house of representatives and who shall be from different political parties. The president of the senate shall appoint two members who shall be members of the senate and who shall be from different political parties. The governor shall appoint two members who shall represent child caring agencies. One member shall be the director of job and family services or the director’s designee. The chief justice shall designate one member of the task force to chair the task force.
The appointing authorities and persons shall make appointments to the task force on family law and children within thirty days after September 1, 1998. Sections 101.82 to 101.87 of the Revised Code do not apply to the task force.
(D) The task force on family law and children shall do all of the following:
(1) Appoint and fix the compensation of any technical, professional, and clerical employees and perform any services that are necessary to carry out the powers and duties of the task force on family law and children. All employees of the task force shall serve at the pleasure of the task force.
(2) By July 1, 2001, submit to the speaker and minority leader of the house of representatives and to the president and the minority leader of the senate a report of its findings and recommendations on how to create a more civilized and constructive process for the parenting of children whose parents do not reside together. The recommendations shall propose a system to do all of the following:
(a) Put children first;
(b) Provide families with choices before they make a decision to obtain or finalize a divorce, dissolution, legal separation, or annulment;
(c) Redirect human services to intervention and prevention, rather than supporting the casualties of the current process;
(d) Avoid needless conflict between the participants;
(e) Encourage problem solving among the participants;
(f) Force the participants to act responsibly;
(g) Shield both the participants and their children from lasting emotional damage.
(3) Gather information on and study the current state of family law in this state;
(4) Collaborate and consult with entities engaged in family and children’s issues including, but not limited to, the Ohio association of child caring agencies, the Ohio family court feasibility study, and the Ohio courts futures commission;
(5) Utilize findings and outcomes from pilot projects conducted by the Ohio family court feasibility study to explore alternatives in creating a more civilized and constructive process for the parenting of children whose parents do not reside together with an emphasis on the areas of mediation and obtaining visitation compliance.
(E) Courts of common pleas shall cooperate with the task force on family law and children in the performance of the task force’s duties described in division (D) of this section.
One of The Ohio Revised Code Sections that applies in custody cases is:
3109.04 Allocating parental rights and responsibilities for care of children
(A) In any divorce, legal separation, or annulment proceeding and in any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child, upon hearing the testimony of either or both parents and considering any mediation report filed pursuant to section 3109.052 of the Revised Code and in accordance with sections 3127.01 to 3127.53 of the Revised Code, the court shall allocate the parental rights and responsibilities for the care of the minor children of the marriage. Subject to division (D)(2) of this section, the court may allocate the parental rights and responsibilities for the care of the children in either of the following ways:
(1) If neither parent files a pleading or motion in accordance with division (G) of this section, if at least one parent files a pleading or motion under that division but no parent who filed a pleading or motion under that division also files a plan for shared parenting, or if at least one parent files both a pleading or motion and a shared parenting plan under that division but no plan for shared parenting is in the best interest of the children, the court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the children and the right of the parent who is not the residential parent to have continuing contact with the children.
(2) If at least one parent files a pleading or motion in accordance with division (G) of this section and a plan for shared parenting pursuant to that division and if a plan for shared parenting is in the best interest of the children and is approved by the court in accordance with division (D)(1) of this section, the court may allocate the parental rights and responsibilities for the care of the children to both parents and issue a shared parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the children in accordance with the approved plan for shared parenting. If the court issues a shared parenting order under this division and it is necessary for the purpose of receiving public assistance, the court shall designate which one of the parents’ residences is to serve as the child’s home. The child support obligations of the parents under a shared parenting order issued under this division shall be determined in accordance with Chapters 3119., 3121., 3123., and 3125. of the Revised Code.
(B)
(1) When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.
(2) If the court interviews any child pursuant to division (B)(1) of this section, all of the following apply:
(a) The court, in its discretion, may and, upon the motion of either parent, shall appoint a guardian ad litem for the child.
(b) The court first shall determine the reasoning ability of the child. If the court determines that the child does not have sufficient reasoning ability to express the child’s wishes and concern with respect to the allocation of parental rights and responsibilities for the care of the child, it shall not determine the child’s wishes and concerns with respect to the allocation. If the court determines that the child has sufficient reasoning ability to express the child’s wishes or concerns with respect to the allocation, it then shall determine whether, because of special circumstances, it would not be in the best interest of the child to determine the child’s wishes and concerns with respect to the allocation. If the court determines that, because of special circumstances, it would not be in the best interest of the child to determine the child’s wishes and concerns with respect to the allocation, it shall not determine the child’s wishes and concerns with respect to the allocation and shall enter its written findings of fact and opinion in the journal. If the court determines that it would be in the best interests of the child to determine the child’s wishes and concerns with respect to the allocation, it shall proceed to make that determination.
(c) The interview shall be conducted in chambers, and no person other than the child, the child’s attorney, the judge, any necessary court personnel, and, in the judge’s discretion, the attorney of each parent shall be permitted to be present in the chambers during the interview.
(3) No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child’s wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child. No court, in determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child or for purposes of resolving any issues related to the making of that allocation, shall accept or consider a written or recorded statement or affidavit that purports to set forth the child’s wishes and concerns regarding those matters.
(C) Prior to trial, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations. The report of the investigation and examinations shall be made available to either parent or the parent’s counsel of record not less than five days before trial, upon written request. The report shall be signed by the investigator, and the investigator shall be subject to cross-examination by either parent concerning the contents of the report. The court may tax as costs all or any part of the expenses for each investigation.
If the court determines that either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being a neglected child, that either parent previously has been determined to be the perpetrator of the neglectful act that is the basis of an adjudication that a child is a neglected child, or that there is reason to believe that either parent has acted in a manner resulting in a child being a neglected child, the court shall consider that fact against naming that parent the residential parent and against granting a shared parenting decree. When the court allocates parental rights and responsibilities for the care of children or determines whether to grant shared parenting in any proceeding, it shall consider whether either parent or any member of the household of either parent has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding, has been convicted of or pleaded guilty to any sexually oriented offense or other offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding and caused physical harm to the victim in the commission of the offense, or has been determined to be the perpetrator of the abusive act that is the basis of an adjudication that a child is an abused child. If the court determines that either parent has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding, has been convicted of or pleaded guilty to any sexually oriented offense or other offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the proceeding and caused physical harm to the victim in the commission of the offense, or has been determined to be the perpetrator of the abusive act that is the basis of an adjudication that a child is an abused child, it may designate that parent as the residential parent and may issue a shared parenting decree or order only if it determines that it is in the best interest of the child to name that parent the residential parent or to issue a shared parenting decree or order and it makes specific written findings of fact to support its determination.
(D)
(1)
(a) Upon the filing of a pleading or motion by either parent or both parents, in accordance with division (G) of this section, requesting shared parenting and the filing of a shared parenting plan in accordance with that division, the court shall comply with division (D)(1)(a)(i), (ii), or (iii) of this section, whichever is applicable:
(i) If both parents jointly make the request in their pleadings or jointly file the motion and also jointly file the plan, the court shall review the parents’ plan to determine if it is in the best interest of the children. If the court determines that the plan is in the best interest of the children, the court shall approve it. If the court determines that the plan or any part of the plan is not in the best interest of the children, the court shall require the parents to make appropriate changes to the plan to meet the court’s objections to it. If changes to the plan are made to meet the court’s objections, and if the new plan is in the best interest of the children, the court shall approve the plan. If changes to the plan are not made to meet the court’s objections, or if the parents attempt to make changes to the plan to meet the court’s objections, but the court determines that the new plan or any part of the new plan still is not in the best interest of the children, the court may reject the portion of the parents’ pleadings or deny their motion requesting shared parenting of the children and proceed as if the request in the pleadings or the motion had not been made. The court shall not approve a plan under this division unless it determines that the plan is in the best interest of the children.
(ii) If each parent makes a request in the parent’s pleadings or files a motion and each also files a separate plan, the court shall review each plan filed to determine if either is in the best interest of the children. If the court determines that one of the filed plans is in the best interest of the children, the court may approve the plan. If the court determines that neither filed plan is in the best interest of the children, the court may order each parent to submit appropriate changes to the parent’s plan or both of the filed plans to meet the court’s objections, or may select one of the filed plans and order each parent to submit appropriate changes to the selected plan to meet the court’s objections. If changes to the plan or plans are submitted to meet the court’s objections, and if any of the filed plans with the changes is in the best interest of the children, the court may approve the plan with the changes. If changes to the plan or plans are not submitted to meet the court’s objections, or if the parents submit changes to the plan or plans to meet the court’s objections but the court determines that none of the filed plans with the submitted changes is in the best interest of the children, the court may reject the portion of the parents’ pleadings or deny their motions requesting shared parenting of the children and proceed as if the requests in the pleadings or the motions had not been made. If the court approves a plan under this division, either as originally filed or with submitted changes, or if the court rejects the portion of the parents’ pleadings or denies their motions requesting shared parenting under this division and proceeds as if the requests in the pleadings or the motions had not been made, the court shall enter in the record of the case findings of fact and conclusions of law as to the reasons for the approval or the rejection or denial. Division (D)(1)(b) of this section applies in relation to the approval or disapproval of a plan under this division.
(iii) If each parent makes a request in the parent’s pleadings or files a motion but only one parent files a plan, or if only one parent makes a request in the parent’s pleadings or files a motion and also files a plan, the court in the best interest of the children may order the other parent to file a plan for shared parenting in accordance with division (G) of this section. The court shall review each plan filed to determine if any plan is in the best interest of the children. If the court determines that one of the filed plans is in the best interest of the children, the court may approve the plan. If the court determines that no filed plan is in the best interest of the children, the court may order each parent to submit appropriate changes to the parent’s plan or both of the filed plans to meet the court’s objections or may select one filed plan and order each parent to submit appropriate changes to the selected plan to meet the court’s objections. If changes to the plan or plans are submitted to meet the court’s objections, and if any of the filed plans with the changes is in the best interest of the children, the court may approve the plan with the changes. If changes to the plan or plans are not submitted to meet the court’s objections, or if the parents submit changes to the plan or plans to meet the court’s objections but the court determines that none of the filed plans with the submitted changes is in the best interest of the children, the court may reject the portion of the parents’ pleadings or deny the parents’ motion or reject the portion of the parents’ pleadings or deny their motions requesting shared parenting of the children and proceed as if the request or requests or the motion or motions had not been made. If the court approves a plan under this division, either as originally filed or with submitted changes, or if the court rejects the portion of the pleadings or denies the motion or motions requesting shared parenting under this division and proceeds as if the request or requests or the motion or motions had not been made, the court shall enter in the record of the case findings of fact and conclusions of law as to the reasons for the approval or the rejection or denial. Division (D)(1)(b) of this section applies in relation to the approval or disapproval of a plan under this division.
(b) The approval of a plan under division (D)(1)(a)(ii) or (iii) of this section is discretionary with the court. The court shall not approve more than one plan under either division and shall not approve a plan under either division unless it determines that the plan is in the best interest of the children. If the court, under either division, does not determine that any filed plan or any filed plan with submitted changes is in the best interest of the children, the court shall not approve any plan.
(c) Whenever possible, the court shall require that a shared parenting plan approved under division (D)(1)(a)(i), (ii), or (iii) of this section ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact with any parent would not be in the best interest of the child.
(d) If a court approves a shared parenting plan under division (D)(1)(a)(i), (ii), or (iii) of this section, the approved plan shall be incorporated into a final shared parenting decree granting the parents the shared parenting of the children. Any final shared parenting decree shall be issued at the same time as and shall be appended to the final decree of dissolution, divorce, annulment, or legal separation arising out of the action out of which the question of the allocation of parental rights and responsibilities for the care of the children arose.
No provisional shared parenting decree shall be issued in relation to any shared parenting plan approved under division (D)(1)(a)(i), (ii), or (iii) of this section. A final shared parenting decree issued under this division has immediate effect as a final decree on the date of its issuance, subject to modification or termination as authorized by this section.
(2) If the court finds, with respect to any child under eighteen years of age, that it is in the best interest of the child for neither parent to be designated the residential parent and legal custodian of the child, it may commit the child to a relative of the child or certify a copy of its findings, together with as much of the record and the further information, in narrative form or otherwise, that it considers necessary or as the juvenile court requests, to the juvenile court for further proceedings, and, upon the certification, the juvenile court has exclusive jurisdiction.
(E)
(1)
(a) 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.
(b) One or both of the parents under a prior decree allocating parental rights and responsibilities for the care of children that is not a shared parenting decree may file a motion requesting that the prior decree be modified to give both parents shared rights and responsibilities for the care of the children. The motion shall include both a request for modification of the prior decree and a request for a shared parenting order that complies with division (G) of this section. Upon the filing of the motion, if the court determines that a modification of the prior decree is authorized under division (E)(1)(a) of this section, the court may modify the prior decree to grant a shared parenting order, provided that the court shall not modify the prior decree to grant a shared parenting order unless the court complies with divisions (A) and (D)(1) of this section and, in accordance with those divisions, approves the submitted shared parenting plan and determines that shared parenting would be in the best interest of the children.
(2) In addition to a modification authorized under division (E)(1) of this section:
(a) Both parents under a shared parenting decree jointly may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree. Modifications under this division may be made at any time. The modifications to the plan shall be filed jointly by both parents with the court, and the court shall include them in the plan, unless they are not in the best interest of the children. If the modifications are not in the best interests of the children, the court, in its discretion, may reject the modifications or make modifications to the proposed modifications or the plan that are in the best interest of the children. Modifications jointly submitted by both parents under a shared parenting decree shall be effective, either as originally filed or as modified by the court, upon their inclusion by the court in the plan. Modifications to the plan made by the court shall be effective upon their inclusion by the court in the plan.
(b) The court may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree upon its own motion at any time if the court determines that the modifications are in the best interest of the children or upon the request of one or both of the parents under the decree. Modifications under this division may be made at any time. The court shall not make any modification to the plan under this division, unless the modification is in the best interest of the children.
(c) The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(i) of this section upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children. The court may terminate a prior final shared parenting decree that includes a shared parenting plan approved under division (D)(1)(a)(ii) or (iii) of this section if it determines, upon its own motion or upon the request of one or both parents, that shared parenting is not in the best interest of the children. If modification of the terms of the plan for shared parenting approved by the court and incorporated by it into the final shared parenting decree is attempted under division (E)(2)(a) of this section and the court rejects the modifications, it may terminate the final shared parenting decree if it determines that shared parenting is not in the best interest of the children.
(d) Upon the termination of a prior final shared parenting decree under division (E)(2)(c) of this section, the court shall proceed and issue a modified decree for the allocation of parental rights and responsibilities for the care of the children under the standards applicable under divisions (A), (B), and (C) of this section as if no decree for shared parenting had been granted and as if no request for shared parenting ever had been made.
(F)
(1) In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
(c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
(2) In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors enumerated in division (F)(1) of this section, the factors enumerated in section 3119.23 of the Revised Code, and all of the following factors:
(a) The ability of the parents to cooperate and make decisions jointly, with respect to the children;
(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.
(3) When allocating parental rights and responsibilities for the care of children, the court shall not give preference to a parent because of that parent’s financial status or condition.
(G) Either parent or both parents of any children may file a pleading or motion with the court requesting the court to grant both parents shared parental rights and responsibilities for the care of the children in a proceeding held pursuant to division (A) of this section. If a pleading or motion requesting shared parenting is filed, the parent or parents filing the pleading or motion also shall file with the court a plan for the exercise of shared parenting by both parents. If each parent files a pleading or motion requesting shared parenting but only one parent files a plan or if only one parent files a pleading or motion requesting shared parenting and also files a plan, the other parent as ordered by the court shall file with the court a plan for the exercise of shared parenting by both parents. The plan for shared parenting shall be filed with the petition for dissolution of marriage, if the question of parental rights and responsibilities for the care of the children arises out of an action for dissolution of marriage, or, in other cases, at a time at least thirty days prior to the hearing on the issue of the parental rights and responsibilities for the care of the children. A plan for shared parenting shall include provisions covering all factors that are relevant to the care of the children, including, but not limited to, provisions covering factors such as physical living arrangements, child support obligations, provision for the children’s medical and dental care, school placement, and the parent with which the children will be physically located during legal holidays, school holidays, and other days of special importance.
(H) If an appeal is taken from a decision of a court that grants or modifies a decree allocating parental rights and responsibilities for the care of children, the court of appeals shall give the case calendar priority and handle it expeditiously.
(I) Upon receipt of an order to active military service in the uniformed services, a parent who is subject to an order allocating parental rights and responsibilities or in relation to whom an action to allocate parental rights and responsibilities is pending and who is ordered to active military service shall notify the other parent who is subject to the order or in relation to whom the case is pending of the order to active military service within three days of receiving the military service order. Either parent may apply to the court for a hearing to expedite an allocation or modification proceeding. The application shall include the date on which the active military service begins.
The court shall schedule a hearing upon receipt of the application and hold the 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 circumstances exist in the case.
The court shall not modify a prior decree allocating parental rights and responsibilities unless the court determines that there has been a change in circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that modification is necessary to serve the best interest of the child. The court may consider active military service in the uniformed services in determining whether a change in circumstances exists under this section and shall make specific written findings of fact to support any modification under this division.
Upon application by either parent, the court may modify a prior decree allocating parental rights and responsibilities after the parent’s active military service has been terminated, hearing testimony and making specific written findings of fact to support the modification.
Nothing in this division shall prevent a court from issuing a temporary order allocating or modifying parental rights and responsibilities for the duration of the parent’s active military service.
(J) As used in this section:
(1) “Abused child” has the same meaning as in section 2151.031 of the Revised Code.
(2) “Active military service” means the performance of active military duty by a member of the uniformed services for a period of more than thirty days.
(3) “Neglected child” has the same meaning as in section 2151.03 of the Revised Code.
(4) “Sexually oriented offense” has the same meaning as in section 2950.01 of the Revised Code.
(5) “Uniformed services” means the United States armed forces, army national guard and air national guard when engaged in active duty for training, or the commissioned corps of the United States public health service.
(K) As used in the Revised Code, “shared parenting” means that the parents share, in the manner set forth in the plan for shared parenting that is approved by the court under division (D)(1) and described in division (L)(6) of this section, all or some of the aspects of physical and legal care of their children.
(L) For purposes of the Revised Code:
(1) A parent who is granted the care, custody, and control of a child under an order that was issued pursuant to this section prior to April 11, 1991, and that does not provide for shared parenting has “custody of the child” and “care, custody, and control of the child” under the order, and is the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child under the order.
(2) A parent who primarily is allocated the parental rights and responsibilities for the care of a child and who is designated as the residential parent and legal custodian of the child under an order that is issued pursuant to this section on or after April 11, 1991, and that does not provide for shared parenting has “custody of the child” and “care, custody, and control of the child” under the order, and is the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child under the order.
(3) A parent who is not granted custody of a child under an order that was issued pursuant to this section prior to April 11, 1991, and that does not provide for shared parenting is the “parent who is not the residential parent,” the “parent who is not the residential parent and legal custodian,” or the “noncustodial parent” of the child under the order.
(4) A parent who is not primarily allocated the parental rights and responsibilities for the care of a child and who is not designated as the residential parent and legal custodian of the child under an order that is issued pursuant to this section on or after April 11, 1991, and that does not provide for shared parenting is the “parent who is not the residential parent,” the “parent who is not the residential parent and legal custodian,” or the “noncustodial parent” of the child under the order.
(5) Unless the context clearly requires otherwise, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, both parents have “custody of the child” or “care, custody, and control of the child” under the order, to the extent and in the manner specified in the order.
(6) Unless the context clearly requires otherwise and except as otherwise provided in the order, if an order is issued by a court pursuant to this section and the order provides for shared parenting of a child, each parent, regardless of where the child is physically located or with whom the child is residing at a particular point in time, as specified in the order, is the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child.
(7) Unless the context clearly requires otherwise and except as otherwise provided in the order, a designation in the order of a parent as the residential parent for the purpose of determining the school the child attends, as the custodial parent for purposes of claiming the child as a dependent pursuant to section 152(e) of the “Internal Revenue Code of 1986,” 100 Stat. 2085, 1, as amended, or as the residential parent for purposes of receiving public assistance pursuant to division (A)(2) of this section, does not affect the designation pursuant to division (L)(6) of this section of each parent as the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent” of the child.
(M) The court shall require each parent of a child to file an affidavit attesting as to whether the parent, and the members of the parent’s household, have been convicted of or pleaded guilty to any of the offenses identified in divisions (C) and (F)(1)(h) of this section.
Effective Date: 03-22-2001; 04-11-2005; 01-02-2007; 2007 HB119 06-30-2007