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Child Custody and Parenting

If a divorce, dissolution, annulment, or paternity action involves a child, the court must make an order for the allocation of parental rights and responsibilities. There are two ways a court can allocate parental rights and responsibilities (custody) of a child in Ohio. The court can either give the parental rights and responsibilities of the child to one parent (called the sole residential parent and legal custodian) or it can give the rights and responsibilities to both parents (called shared parenting). The difference between these two designations is that the sole custodial parent is the only parent with legal authority to make decisions for the child while shared parenting gives both parents equal decision making authority.


Effective April 11, 1991, Ohio Senate Bill 3 became law which completely revamped the Ohio rules regarding children whose parents are divorcing or dissolving their marriage. Prior to 1991, Ohio used the term “joint custody” where both parents were granted joint legal custody of their child. The problem with joint custody was that it could occur only if both parents agreed to it. The practical effect of this rule was that one party would have sole custody of the child. When the new law went into effect in 1991, the Ohio Senate changed the term “joint custody” to “shared parenting.” The Senate also changed the rules so that a court is now authorized to issue an order of shared parenting even if one of the parents objects to a shared parenting arrangement so long as the court finds that shared parenting is in the best interests of the child.


It is important to recognize that Ohio Senate Bill 3 did not create a legal presumption in favor of shared parenting. Sole custody and shared parenting both stand on equal footing. The court will allocate parental rights and responsibilities only in a manner which meets the best interests of the child. However, many judges today prefer the shared parenting arrangement over sole custody.


Shared parenting must be requested (in a pleading or motion) by at least one of the parents. The court cannot consider shared parenting unless it is asked for. Shared parenting can also be requested by both parents. In either case, at least one of the parents must file a shared parenting plan for the court’s approval. If both parents agree on shared parenting, they can submit plans individually or they can submit a plan jointly. The court can also order a parent who does not request shared parenting to submit a proposed parenting plan. The court will then review the proposed plan or plans and determine whether shared parenting is in the best interests of the child and, if so, which plan submitted is in the best interests of the child.


A shared parenting plan must address all aspects of care for the children, including, but not limited to, amount of time with each parent, provisions for medical and dental care, school placement, and child support obligations. Most plans also provide for religious upbringing and activities of the children.


Shared parenting in Ohio does not necessarily mean an equal, 50/50 division of time with the child. Some shared parenting plans allow equal parenting time (visitation). Other plans are set up so that one parent has alternating weekends and one or two evenings during the weekday. Shared parenting time can be crafted into any schedule as long as each parent has time with the child and the schedule promotes stability and predictability for the child. The parenting plan must be specific and should also include time allotment for holidays, birthdays, vacations, and school breaks. The court will ultimately approve or reject the schedule based on whether it meets the best interest of the child standard.


Child support must be included in the shared parenting plan. Many parents believe that if they have shared parenting they do not have to pay child support. This is not the case in most situations. The child support is calculated according to the statutory provisions in the Ohio Revised Code. The same child support worksheet is used to calculate child support for both sole custody and shared parenting cases. The court can deviate from the child support amount calculated in the worksheet but only if several factors exist. Your attorney must file a motion asking the court to deviate from the guidelines.


If the court designates one parent as the sole residential parent, that parent has legal custody of the child. The sole residential parent decides on all matters pertaining to the child including the care, custody, and nurturing of the child. The other parent is called the non-residential parent and is usually granted parenting time (formally known as visitation). There is no decision making authority granted to a non-residential parent with parenting time.


When determining the allocation of parental rights and responsibilities, the court must decide what is in the best interest of the child. The court must decide this for both sole residential and shared parenting arrangements. In determining what is in the best interest of the child, the court considers all relevant factors listed under Ohio Revised Code Section 3109.04 including: the wishes of the parents; the wishes of the child in some cases; the child’s interaction with parents, siblings, and any other persons who may significantly affect the child’s best interests; the child’s adjustment to home, school, and community; the mental and physical health of all persons involved; the parent more likely to honor and facilitate court approved visitation rights; whether either parent has failed to make all child support payments; whether a parent has been convicted of domestic violence or child abuse; whether a parent has continuously and willfully denied the other parent’s parenting time; whether either parent has established or is planning to establish a residence outside the state.


Additionally, before awarding shared parenting, the court must also consider: the ability of the parents to cooperate and make decisions jointly with respect to the child; the ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent; any history of domestic violence or child abuse; the geographic proximity of the parents to each other; and any recommendation of the guardian ad litem, if there is one.


In custody cases, the court can order an investigation into the family relations, past conduct, and the earning ability and financial worth of each parent. The court can also order the parents and child to submit to a medical, psychological, or psychiatric exam. In many cases, a guardian ad litem is appointed. This is a lawyer who represents the best interests of the child.


Once the case is over and the parental rights and responsibilities have been determined, certain issues can arise. Many parents ask if they can deny parenting time (visitation) to a parent who fails to pay child support. The answer to this question is always no. A parent may not be denied parenting time for failure to pay child support. Another frequent question parents ask is if they can stop paying child support because they were denied their court ordered parenting time with their child. The answer to this question is also no. The duty to pay child support is separate and distinct from the right to parenting time with a child. Finally, many parents ask how they can enforce their parenting time rights if they are being denied. Any parent who is denied parenting time with their child can ask the court to hold the other parent in contempt of court.