Child Custody

How does the Court determine custody during a divorce or dissolution?

During the divorce process, the courts must allocate parental rights and responsibilities for the parties’ children. The courts will designate one parent to be the custodial parent or residential parent. This custodial parent will have legal custody of the child and is the primary parent to make decisions which affect the child. In the Divorce Decree or the Decree of Dissolution, the terms of the custody arrangements will be delineated so both parties understand their parental rights. The parties can agree on visitation rights or defer to the court’s standard visitation schedule. However, both parties may enter a Shared Parenting Plan and share custody of the children. Parents who have shared parenting have equal parenting rights. The Shared Parenting Plan is a specific document agreed by both parties which designates visitation time, education, holidays, vacations, healthcare coverage and expenses, childcare expenses, tax exemption credits, and child support. The Shared Parenting Plan does not necessarily divide parenting time equally. The children may reside with one parent while the other has visitation on the weekends. The Shared Parenting Plan allows parents to be flexible in deciding the custody of the children.

Under Section 3109.04 of the Ohio Revised Code, the court must consider the best interests of the children when allocating the parental rights and responsibilities. The court must make this determination whether the parents have shared parenting or one parent has sole custody. The factors to determine the best interests of the children are to following: the parents’ wishes; the child’s wishes and concerns if an interview is conducted; the child’s interaction and relationships with the parents and family members who affect the child’s best interest; the child’s adjustment to home, school and community; the mental and physical needs of all persons involved; the parent more likely to honor and facilitate court-approved parenting time rights; whether either parent has made all child support payments; whether a parent has been found guilty of child neglect or abuse; whether a parent has continuously and willfully denied the other parent’s parenting time; and, whether either parent has established or is planning to establish a residence outside the state. This is not an exhaustive list of the court’s factors. Therefore, it is recommended that you discuss these issues with an experienced family law attorney.

Can I negotiate child support in a Shared Parenting Plan?

Child support is calculated pursuant to guidelines in the Ohio Revised Code. The guidelines factor the parent’s annual gross income for the past three years and any additional income from self-employment, bonuses, interest, or commissions. The guidelines allow deductions for child support paid for children not of the marriage, local income tax, tax exemptions, and spousal support. These calculations are based on a formula which measures each parent’s contribution toward the children’s support and maintenance. In sole custody cases, the parties cannot deviate below or above the guidelines unless other existing factors are present. At attorney must file certain motions to request the court to deviate from the guidelines. In Shared Parenting, the court may award child support after the parties have completed child support worksheets. The court will compare these calculations and consider separate factors that affect child support. For example, the child may participate in extracurricular activities or attend private schools when residing with one parent. There are several factors to consider if one party is responsible for child support under a Shared Parenting Plan.

What if my ex-husband/wife is violating the Shared Parenting Plan?

Often, Shared Parenting becomes unreasonable when one parent refuses visitation, relocates without notice, or fails to reimburse the other for childcare costs, healthcare costs, educational costs, tuition, etc. If this is occurring, then the other parent may hire an attorney to file a contempt action. Attorney fees and court costs may be awarded to the moving party if the court finds violations of the Shared Parenting Plan.

Also, one parent may conduct activities at home that are unhealthy to the children.

Furthermore, the other parent may remarry or date people who are abusive to the children. These circumstances would warrant a court’s decision to modify the parent’s Shared Parenting. Both parties may agree to modify the shared parenting or one party may file a Motion for Reallocation of Parental Rights and Responsibilities to request a change in custody. The moving party must prove there is a change in circumstances to warrant a change in custody. This is a heavy burden to prove, therefore, you should consult an experienced attorney to assist you in filing this motion.

What if we were never married, who has custody of the children?

When the parties are not married, the mother has custody of the children unless the mother has relinquished her rights to the children in a permanent custody action. It is more difficult for the father of the children to obtain custody if the parties were never married. However, the father may still obtain custody by filing a Complaint for Custody in the appropriate court. If the mother has relocated to another state, then the father must deal with interstate laws and jurisdictional requirements. Often, it is difficult in finding the mother’s location and then serving her with a Complaint. If you are successful in service, then the court will conduct a hearing to determine whether it is in the best interests of the child to award custody.

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