Allocating and Modifying Parental Rights and Responsibilities in Ohio*

AN INFORMATIONAL BRIEF PREPARED FOR MEMBERS OF THE OHIO GENERAL ASSEMBLY BY THE LEGISLATIVE SERVICE COMMISSION STAFF

Volume 132 Issue 11 January 4, 2018 Allocating and Modifying Parental Rights and Responsibilities in Ohio*

Prepared By: Amy L. Archer, Research Associate Reviewed By: Ralph D. Clark, Division Chief

Introduction

In Ohio, custody of a child is referred to as the "allocation of parental rights and responsibilities." The phrase "parental rights and responsibilities" A court may allocate is not deﬁ ned in the Revised Code, but has been considered by the Ohio parental rights and Supreme Court to be the equivalent of "custody and control," the phrase it resonsibilities in one of replaced. A person with "custody" of a child has "the right to ultimate legal four ways. and physical control of the child."1 A court may allocate parental rights and responsibilities for the care of a child in one of the following ways:

• Sole custody;

• Shared parenting;

• Allocation of parental rights and responsibilities to a relative of the child; or

• Certiﬁ cation of jurisdiction to the juvenile court to determine custody of the child.

The objective of the court is to render a decision that reﬂ ects the best interest of the child. The court may not give preference to a parent because of that parent's ﬁ nancial status. The court may later modify an allocation order.

*This Members Only brief is an update of an earlier brief on this subject dated July 30, 2008 (Volume 127 Issue 12). Members Only briefs are available on our website www.lsc.ohio.gov Allocating Parental Rights LSC Members Only Brief Vol. 132 Issue 11

Methods of allocating rape or sexual batt ery and has been parental rights and declared to be the parent of a child born as a result of that rape or sexual responsibilities batt ery, she cannot be designated the residential parent and legal custodian One parent as residential parent of that child.3 (sole custody)

A court may allocate the parental Shared parenting rights and responsibilities for the care Shared parenting means the of a child to one parent, designating court allocates the parental rights Sole custody means one that parent as the residential parent and responsibilities to both parents parent, designated the and legal custodian, and dividing the and requires them to share all or residential parent and other rights and responsibilities for some aspects of the child's physical legal custodian, has the child's care between the parents. and legal care. Shared parenting primary parental rights This arrangement is commonly and responsibilities for is commonly referred to as "joint referred to as "sole custody," although the child's care. custody." that terminology is rarely used in the Revised Code. The other rights and Either or both parents may fi le a responsibilities include financial motion requesting shared parenting. support and the right of the parent A parent who files a request for who is not the residential parent and shared parenting must also file a legal custodian to have continuing shared parenting plan. The court contact with the child. reviews each plan to determine whether it is in the best interest, and One parent will be designated the may require modifi cations if the plan residential parent and legal custodian is not in the child's best interest. If when the designation is in the child's the parents do not make changes or best interest and one of the following they propose changes that are not applies: (1) neither parent files a acceptable, the court may reject the pleading or motion requesting shared request and proceed as if it were parenting, (2) at least one parent never made. A court may approve fi les a pleading or motion requesting only one plan and must determine shared parenting but does not fi le a that the plan is in the child's best Shared parenting means shared parenting plan, or (3) at least interest. The court must incorporate both parents share all one parent fi les a pleading or motion the approved plan into a fi nal shared or some aspects of the and a shared parenting plan but no child's physical and legal parenting decree. plan is in the child's best interest.2 care. A shared parenting plan must In the case of parents who were cover all factors relevant to the never married, Ohio law provides that child's care, including physical living the child's mother is automatically arrangements, financial support, designated the child's sole residential medical and dental care, school parent and legal custodian, unless a placement, and the child's physical court issues an order to the contrary. location during legal holidays, school However, if the mother has been holidays, and other days of special convicted of or pleaded guilty to importance. When it is in the child's 2

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best interest, the court must require On certification, the juvenile court that a plan ensure the opportunity has exclusive jurisdiction to make 7 for both parents to have frequent and custody decisions. The court may continuing contact with the child.4 Parents have a fundamental right commit a child to the custody of a In 2002, the Ohio Supreme to the care, custody, and control relative or certify 8 Court held that the juvenile court of their child. Therefore, for a jurisdiction over the has jurisdiction to determine if a nonparent to gain custody, the court child to the juvenile shared custody agreement between fi rst must make a determination that court, if it would not a parent and a nonparent is in the the parents are unsuitable. Without a be in the child's best child's best interest.5 In Bonfi eld, two fi nding of unsuitability, the allocation interest to designate women in a same-sex relationship of parental rights and responsibilities either parent as the were raising children together, but to a nonparent infringes on the residential parent and under Ohio law only one had legally parents' fundamental right.9 legal custodian. recognized rights to the children. The women sought to enter into a Best interest of the child shared parenting arrangement as a method of ensuring that, regardless In determining the best interest of the couple's relationship, each of a child when allocating parental would be involved in raising the rights and responsibilities, the court children. Although one woman was must consider all relevant factors. not a legally recognized "parent" While the court has discretion in The court has as defined in R.C. 3109.04 and so determining what is relevant, the discretion in a shared parenting decree was Revised Code lists specific factors determining the best not available, the Supreme Court that must be considered depending interest of the child, recognized that a parent may enter on the type of custody allocation.10 but must consider into a custody agreement with a certain factors nonparent, subject to a judicial Custody allocations other than specifi ed by law. determination that the custodian is shared parenting "a proper person to assume the care, training, and education of the child."6 When allocating parental rights and responsibilities other than by Court grants custody to a relative shared parenting, the court must 11 or certifi es jurisdiction to the consider the following factors: juvenile court • The parents' wishes;

If the court finds, with respect • If the child was interviewed to a child under 18, that it is in the in chambers, the child's wishes and child's best interest to designate concerns as expressed to the court; neither parent as the residential parent and legal custodian, the court • The child's interaction and may commit the child to the custody interrelationship with parents, of a relative. The court also may siblings, and others who may certify to the juvenile court its ﬁ nding significantly affect the child's best that neither parent should be the interest; residential parent and legal custodian. 3 Allocating Parental Rights LSC Members Only Brief Vol. 132 Issue 11

• The child's adjustment to home, Shared parenting school, and community; A court considering whether • The mental and physical health shared parenting is in the child's best A parent's of all persons involved; interest must consider all relevant performance or factors, including those listed above likely performance • The parent more likely and the following additional factors:12 in allowing to honor and facilitate court- or facilitating approved parenting time rights or • The parents' ability to parenting time companionship and visitation rights; cooperate and make decisions jointly may be considered concerning the child; in allocating • Whether the residential parent parental rights and (or one of the parents subject to • Each parent's ability to responsibilities. a shared parenting decree) has encourage the sharing of love, continuously and willfully denied affection, and contact between the parenting time to the other parent; child and the other parent;

• Whether either parent has failed • Any history of, or potential to make child support payments; for, child abuse, spousal abuse, other domestic violence, or parental • Whether either parent has been kidnapping by either parent; convicted of or pleaded guilty to a criminal offense that resulted in a • The geographic proximity of child being abused or neglected; the parents;

• Whether either parent, in a case • The recommendation of the in which a child has been adjudicated guardian ad litem; abused or neglected, has been determined to be the perpetrator of • Deviation factors listed in 13 the abusive or neglectful act; statute that courts may consider when determining the amount of • Whether either parent has support under a child support order. been convicted of or pleaded guilty to domestic violence, a sexually Modifi cation oriented off ense, or an off ense that caused physical harm, against a General procedure member of the parent's family or household; A court may modify a decree The court may modify allocating parental rights and • Whether there is reason to responsibilities only if it fi nds, based a prior decree if there believe that either parent has acted has been a change of on facts that have arisen since the in a manner resulting in a child being circumstances and decree, or that were unknown to modifi cation is necessary abused or neglected; the court at the time of the decree, to serve the child's best • Whether either parent has that (1) there has been a change in interest. established, or is planning to the circumstances of the child, the establish, a residence outside Ohio. residential parent, or either of the

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parents subject to a shared parenting The court may modify the terms of decree, and (2) modification is a court-approved shared parenting necessary to serve the child's best plan on its own motion at any time if Parents may jointly interest. The court must retain the it determines that modifi cations are modify a court- residential parent designated by the in the child's best interest. approved shared decree, unless a modifi cation is in the parenting plan. child's best interest and one of the The court may terminate a shared following applies: (a) the residential parenting decree on the request of parent in a sole custody situation one or both parents or whenever it (or both parents under a shared determines that shared parenting is parenting decree) agrees to change not in the child's best interest. If the the residential parent designation, parents attempt to jointly modify (b) the child, with the residential a plan that is the basis of a shared parent's consent (or both parents' parenting decree and the court rejects consent under a shared parent ing the modifications, the court may Either or both parents decree), has been integrated into terminate the decree if the court may request that a the family of the person seeking to determines that shared parenting is decree be modifi ed to become the residential parent, or not in the child's best interest. If it a shared parenting decree. (c) the advantages of a change in the terminates a shared parenting decree, child's environment outweigh the the court must issue a modified disadvantages. decree allocating parental rights and responsibilities for the care of the Either or both parents under a child as if the court had not issued a decree that is not shared parenting shared parenting decree.14 may file a motion requesting that the decree be modifi ed to a shared When a parent is called to active parenting decree. The court may military service make the modification if it is The court may modify authorized because of a change of When a parent who is subject to or terminate a shared circumstances, shared parenting is an order allocating parental rights and responsibilities, or for whom parenting plan at in the child's best interest, and the any time if it is in the an action for an order is pending, is shared parenting plan complies with child's best interest. the legal requirements for such plans. ordered to active military service, that parent must notify the other Parents under a shared parenting parent within three days of receiving decree may jointly modify the court- notice of the activation. Either parent approved terms. They may make the may then apply to the court for a modifi cations at any time by jointly hearing to expedite an allocation or filing the modifications with the modifi cation proceeding so that the court. The court must include the court can issue an order before the modifi cations in the plan unless they active military service begins. are not in the child's best interest. If the modifications are not in the The court must then schedule child's best interest, the court may a hearing, which must be held not reject the modifi cations or alter the later than 30 days after receipt of the proposed modifi cations or the plan. application, except under exigent 5 Allocating Parental Rights LSC Members Only Brief Vol. 132 Issue 11

circumstances. The court cannot the request of the parent ordered to modify a prior decree allocating active military service, the court must parental rights and responsibilities allow the parent to participate in the Either parent may unless the court determines that temporary order proceeding and to apply for an expedited (1) there has been a change in present evidence by electronic means hearing to allocate or circumstances of the child, the to the extent permitt ed by the rules of modify parental rights 15 and responsibilities so residential parent, or either of the the Ohio Supreme Court. an order may be issued parents, and (2) modification is before military service necessary to serve the child's best Change in circumstances begins. interest. The court cannot find past, present, or possible future In 2007, the Ohio Supreme active military service to be a Court held that based on statute, change in circumstances justifying a modification of the designation modifi cation, and must make specifi c of residential parent and legal written findings of fact to support custodian of a child requires a any modifi cation. determination that a "change in circumstances" has occurred, as The court also may issue well as fi nding that the modifi cation a temporary order allocating or is in the child's best interest.16 A modifying parental rights and diff erent 2007 Ohio Supreme Court responsibilities during the active case listed several factors that have military service. The temporary been considered by Ohio courts as order must specify whether the potentially fulfi lling the "change in military service is the basis of the circumstances" requirement. These temporary order, and must provide include a new marriage that creates for its termination and resumption of hostility by the residential parent and A court may also the prior order within ten days after spouse toward the nonresidential temporarily allocate or receipt of notice of the termination parent, frustrating attempts at modify parental rights date of the military service, unless visitation; the advancement of a and responsibilities and the other parent demonstrates that child to adolescence; unruly behavior limit the temporary resumption of the prior order is not of the residential parent involving order to the duration in the child's best interest. The parent the police; and fights between the of the parent's military service. ordered to active military service residential parent and a new spouse must provide written notice of the that required police intervention, date of termination not later than along with the fact that the residential 30 days after the service ends. At parent had frequently moved.17

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Endnotes

1 Fisher v. Hasenjager (2007), 116 Ohio St.3d 53, 57; 2007 Ohio 5589, ¶ 22, citing Braatz v. Braatz (1999), 85 Ohio St.3d 40, 43-44. 2 R.C. 3109.04(A)(1). 3 R.C. 3109.042(A) and (B). 4 R.C. 3109.04(A)(2), (D), and (G). 5 In re Bonﬁ eld (2002), 97 Ohio St.3d 387; 2002 Ohio 6660. 6 Bonﬁ eld at 393-394, 396; ¶¶ 35, 48-50. 7 R.C. 3109.04(D)(2). 8 Troxel v. Granville (2002), 530 U.S. 57, 66. 9 Hockstok v. Hockstok (2002), 98 Ohio St.3d 238, 242; 2002 Ohio 7208, ¶ 17. 10 R.C. 3109.04(F)(1). 11 R.C. 3109.04(F)(1). 12 R.C. 3109.04(F)(2). 13 R.C. 3119.23. 14 R.C. 3109.04(E). 15 R.C. 3109.04(I). 16 Fisher v. Hasenjager (2007), 116 Ohio St.3d 53, 60-61; 2007 Ohio 5589, ¶ 37. 17 In re James (2007), 113 Ohio St.3d 420, 424; 2007 Ohio 2335, ¶ 18.

Published by the Ohio Legislative Service Commission Staff

9th Floor Vern Riﬀ e Center Columbus, Ohio (614) 466-3615

Deputy Director Jim Kelly

Author Amy L. Archer Research Associate

Reviewer Ralph D. Clark Division Chief

Layout & Design Linda Bayer