Family Law FAQ

Family Law / Family Law FAQ

CHILD’S WISHES IN CUSTODY CASES

Q: How does a court decide whether to order shared parenting or order one parent to have custody of the children when a marriage ends?

A: To determine whether shared parenting is in the best interest of the children, the court considers many factors, including:

• the parents’ ability to cooperate and make joint parenting decisions;
• each parent’s ability to encourage contact and the sharing of love with the other parent;
• any history of, or potential for, child or spousal abuse or other domestic violence, or parental kidnapping by either parent;
• where the parents live in proximity to each other (for practical shared parenting reasons); and
• the recommendation of the child’s guardian ad litem, if applicable.

For cases in which shared parenting is not in the best interests of the children, the court will select a parent (the “residential parent”) to have custody of the children. The court will grant parenting time rights to the other parent.

Q: I am going through a divorce. At what age can my seven-year-old son choose whether he wants to live with me or with his mother?

A: Ohio law does not specify an age at which a child may choose his or her own living arrangements. Rather, the court looks at the custody issue on a case-by-case basis, and custody determination is based on a number of factors, including:

• the wishes of the child’s parents;
• the wishes of the child;
• the child’s relationship with parents, siblings, and any other person who may significantly affect the child’s best interest;
• the child’s adjustment to home, school and community;
• the mental and physical health of all those involved;
• the parents’ likelihood of honoring and facilitating court-approved parenting time rights or visitation and companionship rights;
• failure of either parent to make any past child support payments;
• either parent’s previous conviction or guilty plea for a criminal offense involving an abused or neglected child or domestic violence, or evidence that either parent has acted in a way that resulted in a child’s abuse or neglect;
• denial by either parent of the other parent’s right to parenting time;
• either parent’s establishment of a residence, or a plan to move, outside the state.

The court is not allowed to give a parent preference because of that parent’s financial status.

Q: How and under what circumstances may a child choose which parent will have custody?

A: As always with regard to children, the court must determine what is in the child’s best interest. The child’s living arrangement preference is only one of many factors that may be considered by the court in determining what is in the child’s best interest. A parent may ask the court to interview the child to find out the child’s preference, and the court will conduct an in-chambers interview. The interview is not done in open court, but rather, in the judge’s or magistrate’s chambers. The child meets with the judge or magistrate and other court personnel as appropriate, but the child’s parents are not present at the meeting.

Q: What, if any, guidelines are followed during an interview with a child “in chambers”?

A: The court (judge or magistrate) will first determine the reasoning ability of the child. If the court determines the child does nothave sufficient reasoning ability, then the child will not be asked his or her wishes with regard to custody. If the court decides the child does have sufficient reasoning ability, the court must then decide if there are any special circumstances that would suggest the child’s wishes should not be considered. Assuming the child has sufficient reasoning ability and there are no special circumstances, the court will then ask the child about his or her own wishes regarding custody.

Q: Does the court always follow the child’s wishes?

A: Not necessarily. The court still must determine whether it is in that child’s best interest for custody to be granted to the parent chosen. The court also must consider many other factors to determine what is in the child’s best interest. The wishes of an older, more mature child are often weighed very heavily unless there is a negative reason why the child prefers one parent over the other (e.g., lax rules or supervision, substance abuse issues, etc.).

PARENTAL ALIENATION

Q: What is parental alienation?

A: Parental alienation refers to one parent’s behavior toward his or her child that emotionally and/or physically serves to distance the child from the other parent. The behavior can be unconscious or deliberate, and is sometimes called “parental estrangement.” Grandparents, older siblings and aunts and uncles, in varying degrees, also may experience this type of behavior from a parent.

Q: In what circumstances is parental alienation most often seen?

A: Parents who are experiencing divorce or who have ended their marriages in bitter divorce often display this type of behavior. Parental alienation is more likely to occur if child support payments are inconsistent or non-existent, if the parents have disagreements over custody or parenting time, if the parties have serious differences regarding parenting styles, if the residential parent is remarried and wants to replace his or her ex-spouse with a new spouse or if the primary caretaker suffers from mental health issues.

Q: What are the signs of parental alienation?

A: Signs of parental alienation may include attempts to brainwash the child, attacks on the character of the other parent, or attempts to make the child feel fear, anger or shame for having a relationship with the other parent.

Q: Why is it important to recognize these signs?

A: A parent should learn to recognize this behavior for what it is and what it is not. When a child is being alienated from the other parent, it is wise to try to resolve underlying causes, such as nonpayment of child support and resentment from remarriage, in an effort to change the alienating behavior. If there are no underlying causes, parental alienation could be a sign of child abuse and should be further investigated.

Q: What does the law say about parental alienation?

A: In family law matters, parental alienation is considered an interference with visitation or shared parenting. The law recognizes that both parents are generally important to a child’s well-being and that neither parent should alienate the child’s affection from the other parent. The court usually designates one parent to be the residential parent and legal custodian or the “primary caregiver,” and that parent typically will spend a greater amount of time with the child. A parent’s status as the primary caregiver does not mean that that parent is necessarily “preferred” over the other, however. If one parent alienates a child from the other parent, the alienated parent may ask the court for additional parenting time. The law also prohibits an angry parent from holding back on visitations even if the other parent has failed to pay child support. Both child support and time with each parent is important for children. If a child is deprived of support, it is not necessarily in the child’s best interests to be deprived also of time with a parent.

Q: How do the courts regard parental alienation?

A: Parental alienation is an interference with parental rights, whether that interference is physical or psychological. When courts find evidence of parental alienation or estrangement, counseling is often recommended. They examine, in particular, the parents’ ability to cooperate and make decisions jointly in the interest of the children. They also look at the parents’ history of supporting and maintaining consistency with the child. The courts are primarily concerned with the child’s well-being.

Some courts recognize a particular set of symptoms as being a syndrome called the Parental Alienation Syndrome (PAS). Many in the psychological community and in Ohio’s courts do not recognize PAS. Nearly all persons in the legal and psychological community realize, however, that a parent sometimes alienates the other parent from their child. Even though they do not mean the same thing, the terms “parental alienation” and “Parental Alienation Syndrome” are sometimes used interchangeably. Because Ohio courts have not yet distinguished between the two terms, this name confusion can create difficulty in cases involving parental alienation.

GUARDIAN AD LITEMS

Q: What is the difference between a “guardian” and a “guardian ad litem”?

A: For example, parents are the natural guardians of their minor children, an aunt may be appointed guardian of a minor child who has lost both parents, or a friend may serve as guardian for the property of a temporarily disabled person. A guardian is appointed by the court, and must follow certain procedures, such as providing the court with regular reports, but is not required to have specific training to carry out this role. The guardianship may last for a short time or indefinitely.

The role of a guardian ad litem (sometimes called a “next friend,” or “GAL”) is more specialized than that of a “regular” guardian. A GAL is specifically responsible for protecting the interests of a minor who is in some way involved in a lawsuit, generally only until the legal proceedings are completed. All GALs must have training specific to their role in representing a child’s best interests, though they come from all walks of life (e.g., attorneys, social workers, teachers, business professionals, etc.).

Q: Who appoints a GAL?

A: Usually the judge or magistrate will appoint a GAL to serve on a case. In domestic relations cases, where custody of a minor child or children is an issue, the attorneys often will agree that a GAL should be appointed, and will ask the court to appoint one. Similarly, probate and civil division courts will appoint a GAL where the child’s interests in the litigation are potentially contrary to his or her parents’ interests in the matter. When there are several children whose interests need to be protected in a particular case, usually only one GAL is appointed to represent all of the children’s interests. If a conflict arises, then additional GALs may be appointed.

Q: What kinds of cases utilize GALs?

A: Any cases involving a child who has been neglected or abused, or is considered dependent (e.g., one whose parents are unable to provide care due to mental or physical illness) will likely result in the appointment of a GAL. Also, GALs may be appointed in cases involving custody disputes between parents or other family members, or in cases involving visitation problems or reunification of parents and children after a long absence.

Q: What is the role of a GAL?

A: A GAL is an independent advocate for the child, and must make recommendations about what is in the child’s best interest. In a custody dispute, the GAL should meet with the child alone in a comfortable setting and also observe the child’s interactions with each parent and any siblings. Also, the GAL should obtain the child’s school records and any pertinent medical or counseling records, and may wish to speak with other parties or professionals who have been involved with the child.

In cases involving allegations of dependency, neglect or abuse of a child, a GAL will review the records and reports surrounding the allegations, meet with the child and parents separately and attend all court hearings. In all cases, GALs must submit written reports to the court regarding their investigation and recommendations. They also may arrange for home visits to any past and possible future residences of the child. They will also accompany the child to speak with a judge or magistrate if an interview is necessary.

Q: Who may serve as a GAL?

A: In many jurisdictions, laypersons (sometimes called “court-appointed special advocates,” or “CASAs”) may serve as GALs in dependency, neglect or abuse cases. Attorneys also may serve as GALs on these cases as well as in private custody disputes

Q: Can a GAL gain custody of my child?

A: No.

Q: Who pays for the GAL’s services?

A: Most laypersons serving as GALs are volunteers and donate their time to the cases. Attorneys also often agree to serve on a pro bono basis. Some courts have funding that pays for the non-volunteer GALs in dependency, neglect and abuse cases or on cases where the parents are indigent. In private custody disputes, the attorney GAL is paid by the parents in a pro-rated share determined by the court.

Q: How long does a GAL serve on a case?

A: For most cases, the GAL serves only a few months until the investigation and legal proceedings have been completed. For other cases, the GAL could serve for a period of years until the child reaches the age of majority. If a case is resolved and reopened at a later time, the same GAL may be reappointed to serve on the new matter.

RELOCATION

Q: I am divorced and have custody of my children. What should I do if I want to move?

A: Ohio law requires you to file a notice of intent to relocate with the court that issued the custody order. The notice of intent to relocate must include your new address unless this is otherwise prohibited by a court order. The court will send a copy of the notice to relocate to the non-custodial parent.

Q: My ex-spouse does not want me to move with our children. What should I do?

A: If a non-custodial parent objects to the relocation after receiving the notice of intent to relocate, the court in which the notice was filed will conduct a hearing to determine whether a modification of the parenting time schedule may be made to accommodate the relocation. For example, if an increased geographical distance between the parents makes weekly or bi-weekly parenting time impossible, then the court may allow the children to spend a long summer vacation and most school breaks with a non-custodial parent to compensate. Ohio law provides that a court may allow such a modification if it is determined to be in the children’s best interest.

Q: How does a court determine if a modification of the parenting time schedule to accommodate relocation is in the children’s “best interest”?

A: Ohio law provides that a court must consider several factors to determine whether such a modification is in the children’s best interest.
These factors include, but are not limited to:

• the reason for the anticipated move, such as employment opportunities or remarriage;
• the distance that a relocation will put between the children and the non-custodial parent;
• the involvement of the children’s extended family, such as grandparents, aunts, uncles and cousins;
• the non-custodial parent’s relationship with the children;
• the parents’ ability to communicate and cooperate with each other about matters relating to the children; and
• the financial, physical and emotional ability of the parents and the children to travel for parenting time purposes.

Q: I am a divorced parent, and my ex-spouse, who has custody of our children, wants to move. What are my rights?

A: Once you receive the notice of intent to relocate from the court, you must request a court hearing to determine whether it is appropriate to modify the parenting time schedule to accommodate the relocation. If a court determines that it is appropriate to make such a modification, the court will then determine an appropriate parenting time schedule. If the court determines that it is not appropriate to modify the current schedule, then your spouse will not be able to move with the children to any location that will make it impossible to follow the current schedule.

Q: Why would a court deny a parent’s request to relocate?

A: Ohio law provides that modification of a parenting time schedule to accommodate a relocation will not be allowed if the move would not be in the children’s best interest. Relocation requests may be denied for many reasons including the following:

• there is no legitimate reason for the move;
• there is significant local involvement of the children’s extended family; and
• there is evidence that the relocating parent is unable or unwilling to cooperate with the parenting schedule.

Q: What happens if a court denies a request to relocate?

A: If the custodial parent decides to move with the children despite the court’s denial of the request to relocate, then the custodial parent is in violation of the court order. The non-custodial parent may then ask the court to hold the custodial parent in contempt, order the return of the children, and grant custody to the non-custodial parent.

If the custodial parent decides to move anyway, but without the children, the court may issue an order granting custodial rights to the original non-custodial parent, and parenting time to the other parent. In either of these scenarios, the law requires the court to base its decision on the best interest of the children. If the custodial parent decides not to relocate, the prior court order regarding parenting time will continue to be in force.

TERMINATION OF PARENTAL RIGHTS

Q: What are parental rights?

A: The Supreme Court of Ohio has recognized that parents have a constitutionally protected fundamental interest in the care, custody and management of their children. herefore, the rights of parents to raise their own children are basic and essential. A parent’s natural parental rights, however, can always be modified if the welfare of the child is at risk.

Q: If I am a single parent, do I have parental rights?

A: In Ohio, an unwed mother is recognized as the sole legal custodian of a child unless and until the father establishes parentage. Therefore, an unwed mother always has parental rights upon the birth of her child. The biological father of that child has no parental rights unless he establishes his equal right to the child by either acknowledging paternity, or by confirming kinship through DNA testing. Even after parentage is established, an unwed father may be required to petition the court to visit with the child.

Q: If I get divorced, are my parental rights automatically terminated?

A: No. The rights of each natural parent, with respect to where the child will live and which parent gets to visit with the child and when, usually are decided by the time the divorce is final.

Q: The local child services agency is threatening to take my child. Will that terminate my parental rights?

A: No. Even if the child services agency has filed an abuse, neglect, or dependency action in juvenile court against you, your parental rights may not be terminated without due process. Also, you have the right to have an attorney represent you at court hearings to determine whether or not your rights should be terminated. The child services agency cannot move to terminate your rights without first filing a motion expressly asking that the rights be terminated. Such an agency cannot move for termination unless a child has been in its custody for a long period of time.

Q: How are parental rights terminated in Ohio?

A: A natural parent may voluntarily give up parental rights to a child, as in the case of a parent permitting his or her child to be adopted by a stepparent.

If a child services agency moves to terminate parental rights against a parent’s wishes, it must have grounds to do so. In Ohio, grounds for termination include: abandonment or extreme parental disinterest; abuse and/or neglect of the child in question or abuse and/or neglect or loss of rights to another child; mental illness or deficiency; alcohol or drug-induced incapacity; felony conviction(s) and/or incarceration; the parent’s failure to make reasonable efforts to take steps requested by the child services agency in order to regain custody of the child; sexual abuse; failure to maintain contact with the child while the child is in the care of a child services agency; failure to provide support; a court’s determination that the child is “dependent” and in need of services; a determination that termination of parental rights is in the child’s best interests; the fact that the child has been in the care of a child services agency for 12 of 22 months; felony assault of a child or sibling; and murder or manslaughter of the child’s sibling.

A court must hold a hearing specifically on whether a natural parent’s rights can be terminated. The court must decide, by clear and convincing evidence, that termination of parental rights is in the child’s best interests.

Q: Once my parental rights are terminated, can they be reestablished?

A: No. Termination of a natural parent’s rights is permanent.

TERMINATING AN ENGAGEMENT

Q: My fiancé recently ended our engagement and I spent $3,000 on an engagement ring. She refuses to give the ring back. Am I entitled to the ring according to the law?

A: Under Ohio law, unless there is an agreement to the contrary, the engagement ring is considered a conditional gift, given in contemplation of marriage. When, as in your case, the implied condition of the marriage is not met, then you are entitled to recover the ring or its value.

Q: What happens if I’m the one who bought the ring, but I’m also the one who broke the engagement? Am I still entitled to get the engagement ring back?

A: In Ohio, the majority view is that the engagement ring must be returned to you regardless of who ended the engagement and for what reason. However, at least one court in Ohio has ruled that, unless there is an agreement to the contrary, an engagement ring need not be returned if the engagement has been unjustifiably broken. While this ruling has been criticized by other courts, it has not been overruled. Therefore, it all depends on what view your court would decide to follow.

Q: After our engagement ended, I demanded that my ex- fiancé give the ring back, but she tells me that she was so distraught after I ended our engagement that she threw the ring into the river. Am I entitled to recover anything? If I’m entitled to the value of the ring, does that mean I can get back the amount I paid for it?

A: You are entitled to recover the value of the ring, but you must be able to offer proof of its actual value. The value of the ring is not necessarily the amount that you paid for it. If you cannot get your hands on the ring, then you should ask the jeweler from whom you bought the ring for an appraised value. You could also ask your insurance company to verify the value if you insured the ring. Unfortunately, the mark-up on many engagement rings may be significant, so the value may be less than what you paid for it. The key is to find a recent appraisal. You will need to use that as a basis for your demand for recovery.

Q: My fiancé recently ended our engagement. In addition to an engagement ring, I had showered her with all sorts of other gifts such as a horse and a horse trailer. Does she have to return those gifts to me as well?

A: Unless these gifts were expressly conditioned on the subsequent marriage, general gift law applies, and these gifts are treated as irrevocable inter vivos gifts. In other words, you are not entitled to get them back.

Q: How is a gift of a horse different from a gift of an engagement ring?

A: Ohio law provides that an engagement ring has a symbolic meaning of a couple’s promise to marry that other types of gifts do not have. This is why engagement rings are treated differently under the law.

TERMINATION OF MARRIAGE

Q. What are the various ways to terminate a marriage?

A: Divorce, Dissolution, Legal Separation

Ohio law provides three ways for a husband and wife to end or alter their marital relationship: legal separation, divorce and dissolution of marriage. To obtain a dissolution or divorce, you must live in Ohio for at least six months before filing. The law does not require persons seeking a legal separation to live in Ohio for any particular length of time before filing.

What is a divorce?

Divorce is a civil lawsuit to end a marriage, arising when the husband and wife cannot resolve their problems, and ask the court to make the final decisions concerning property division, spousal support and matters regarding the children.

A divorce is started by one spouse, the plaintiff, who files a complaint with the clerk of court. In the complaint, plaintiff must claim, and eventually prove, the appropriate statutory grounds for divorce. Discuss the statutory grounds and your facts with your attorney.

The clerk of court “serves” upon the other spouse, the defendant, a copy of the complaint and a summons. Service is generally made by certified mail or personal delivery. If the defendant’s residence is not known, there is a procedure for service by publishing a legal notice in a newspaper. This publication method of service is effective for obtaining a divorce decree, but generally is not effective for obtaining orders about matters such as spousal or child support.

The defendant has 28 days after service of the complaint and summons to file an answer to respond to the complaint. The defendant may file a counterclaim requesting a divorce, stating the grounds the defendant believes apply. The plaintiff files a reply in response to the counterclaim.

Most divorce cases are eventually settled by agreement. A proposed agreed decree of divorce is prepared, signed by the parties and submitted to the court for approval. If approved, the agreement is made effective by a court journal entry.

If the parties cannot agree to resolve all of their disputed issues, the disputes are presented to the court. The court will review the parties’ evidence and make its decision based on Ohio law.

What is a legal separation?

This is a civil lawsuit that does not legally end a marriage, but allows the court to issue orders concerning property division, spousal support, allocation of parental rights and responsibilities, child support and parenting time allocation for any minor children. The parties remain married, but live separately. When a court grants a legal separation, each party must follow the court’s specific orders.

What is a dissolution of marriage?

A dissolution of marriage is an action where the parties mutually agree to terminate their marriage. Neither party has to prove grounds to end a marriage by dissolution. This action is filed after the husband and wife have signed a separation agreement regarding all property, spousal support and any child-related issues. After jointly filing a Petition for Dissolution, the parties must wait at least 30 days before the court will hear their case. The case must be heard within 90 days of filing. At the hearing, the court will review the separation agreement, ask about the assets and liabilities and any parenting issues, and determine whether the parties understand and are satisfied with the settlement. If the court is satisfied that, the parties agree and desire to end their marriage, the court will grant a dissolution and order the separation agreement into effect.

FAMILY LAW SPECIALIST

Q. What is a Family Law Certified Specialist?

A. All attorneys licensed to practice law in Ohio must have graduated from an accredited law school, passed an intensive examination, and attend continuing legal education courses as required by the Supreme Court of Ohio. Attorneys who devote a large part of their practice to a particular area of the law may choose to go beyond these requirements to earn specialty certification. To become certified, in order to join this elite group of attorneys, they must:

• demonstrate substantial and continuing involvement in a particular field of law, meaning they must devote at least 25% of their practice to that area of law;
• submit five professional references (from their peers as well as the judiciary) attesting to their competency in the specialty area;
• have earned a minimum of 36 hours of intermediate or advanced continuing legal education credits in the specialty area during the past three years as part of the continuing legal education credits required of all attorneys;
• pass a written examination; and
• prove financial responsibility by maintaining minimum professional liability insurance coverage.
• remain in good standing with the Supreme Court of Ohio;

Attorneys who have earned specialty certification must file annual reports attesting compliance with program requirements. Additionally, they must be recertified at least every four to seven years by meeting all of the original requirements for certification except the written examination.