Parental Rights and Child Custody

In Ohio, two different courts can make decisions about parental rights or child custody. Domestic Relations Court can decide parental rights as part of a divorce, legal separation or civil protection order. Juvenile Court can decide custody if the parents are not married or if no other court has made an order.

What is parental rights or custody?

  • The right to have physical care and control of a child;
  • The right to decide where and with whom a child lives;
  • The duty to protect, train and discipline; and
  • The duty to provide food, shelter, education and medical care.

How does a court decide who should have parental rights or custody?
There are two standards that a court must follow: one for parents and one for non-parents. If the court must decide between two parents, the court must determine the “best interest” of the child. Factors that help the court decide “best interest” are set out in the law. If the court must decide between a parent and a non-parent, the court must first find that the parent is “unfit” to have custody. Only then can the non-parent be considered as a custodian.

How does a court determine what is in the best interest of a child?
In determining best interest of a child the court considers all relevant factors including:

  • the wishes of the child’s parents;
  • the wishes of the child;
  • the child’s relationships with relatives;
  • the mental and physical health of the parties involved;
  • the child’s adjustment to home, school and community;
  • failure to encourage court ordered visitation;
  • failure to make child support payments;
  • conviction or adjudication of child abuse or neglect or domestic violence;
  • plans to relocate out-of-state

What is shared parenting?
A Domestic Relations Court may decide to “allocate” parental rights according to a shared parenting plan. The plan is developed by either or both the parents. The Plan sets out who is the residential parent and divides between the parents the other rights and responsibilities for the care of the children including child support and companionship. The court must determine that the shared parenting plan is in the best interest of the child. In determining “best interest” the court considers all relevant factors. The court can look at:

  • the ability of the parents to cooperate and make decisions jointly;
  • the ability of each parent to encourage the sharing of love, affection and contact between the child and the other parent;
  • any history of or potential for child abuse, parental kidnapping, spouse abuse or domestic violence;
  • The geographic proximity of the parents;
  • recommendation of a guardian ad litem.

How do I obtain parental rights?
There are several ways to ask a court make a decision about parental rights/custody. In Domestic Relations Court, parental rights can be sought in a divorce complaint or after the divorce has been granted, in a motion to reallocate parental rights. In Juvenile Court, a petition for custody can be filed or, if custody has already been determined, a motion to modify the prior order can be filed. In either case, the parties can agree to the terms of the change or, in a contested case, the court can decide.

What if the parents agree to a custody change?
Parents of a child may decide to change custody for many reasons. Loss of job or income, forced relocation, substance abuse, domestic violence or other significant life stressors may cause the need for a change of custody. Many times grandparents or other relatives can provide necessarily stable homes for a temporary period of time.

A custody change cannot be accomplished by having a statement witnessed by a notary public. A court must order the change of custody. To change custody, a complaint or motion is filed in court. All parties consent to the change of custody. This includes the parents and current legal custodian. Despite the agreement, the Court must still find that the custody change is in the best interest of the child.

Do I need an attorney to represent me?
If you agree with the terms of a custody change you may not need an attorney to represent you. You should clearly understand what is intended:

  • Who will have custody and for how long?
  • What are the visitation rights?
  • What is the child support order?
  • Is health insurance available for the child?
  • If not, who pays for medical coverage?
  • What are the other needs of the child and how are these needs being met?

If you understand the arrangement and agree with it, you probably do not need an attorney.

 

 

This article is meant to give you general information and not to give you specific legal advice.
Prepared by Community Legal Aid Services, Inc. Updated April 2012.

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