In a divorce or dissolution action, or in the case of unmarried parents, parental rights and responsibilities for minor children must be allocated. Custody can be allocated in two ways: sole custody can be given to either parent, or shared parenting can be given to both parents. Decisions for minor children are then made based on how parental rights and responsibilities are allocated.

Q:       How does the court decide custody issues?

A:        Custody determinations are governed by Ohio law (Ohio Revised Code, Section 3109.04). The court must consider various factors as the law requires. These factors include (but are not limited to) the wishes of each parent, the wishes of the children, the ability of the parents to communicate, the distance between the parents’ residences, the children's adjustment to the community and school with either parent, and the children's interactions with either parent and other family members.

Q:       What is sole custody?

A:        The parent who receives “sole custody” becomes the child’s legal custodian and will make decisions about non-urgent medical care, schooling, religious training, discipline and extra-curricular activity involvement. The sole custodian must keep the non-custodial parent advised about all matters involving the children, but will be able to make these decisions even if the non-custodial parent disagrees. The non-custodial parent will have parenting time with the children, including holidays and vacation time. Also, the non-custodial parent will have equal access to medical and school records. 

Q:       What is shared parenting?

A:        The court cannot grant shared parenting unless one or both parent(s) files a motion with a proposed shared parenting plan. If the court orders shared parenting, both parents are designated legal custodians of the minor children and must make all decisions together. These decisions will be outlined in a shared parenting plan that is filed with the court. The children may attend school in either parent’s school district. The parents must communicate to further the best interests of their children.

            Neither parent can make unilateral decisions for the children in a shared parenting arrangement. If the parents are unable to agree on decisions about the children, they will be required to attend mediation sessions before they can file motions with the court. Generally speaking, Ohio courts favor shared parenting because it is thought that children benefit when both parents are involved in childrearing decisions. In some cases, however, shared parenting is not appropriate. For example, when there is a history of domestic or substance abuse, shared parenting may not be in the best interests of the children. 

Q:       Do I have shared parenting if I have my children 50 percent of the time?

A:        It is often thought that having a 50/50 parenting schedule means that the parents have “shared parenting.” While parents who share equal time with their children often have shared parenting, it is not required. Even when the court allocates sole custody to one parent, both parents may share parenting time equally.

Q:       What is a parenting schedule?
A:        In addition to issuing a custody allocation, the court will also order a parenting schedule, which determines how much parenting time each parent has with the children. A parenting schedule is different from custody. For example, even if parents do not have equal parenting time, they can have shared parenting for decision-making purposes. 

Q:       If I have shared parenting, do I have to pay child support?

A:        A common misconception is that if the parents have shared parenting of their minor children, then neither parent will be required to pay child support. Various factors are taken into account when determining child support, which is done on a case-by-case basis. 

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorneys Trista Portales Goldberg and Maggie M. Nestheide of Beth Silverman & Associates. The column offers general information about the law.  Seek an attorney’s advice before applying this information to a legal problem.

Q:       When my husband and I divorce, will my Social Security benefits be affected?

A:        No. Under federal law, you qualify for Social Security benefits in one of two ways: by 1) earning credits, based on your annual earnings, which determine your monthly benefits when you retire; or by 2) being married to someone for more than 10 years, which qualifies you for a spousal benefit.

When you retire, you may choose whichever of these Social Security options provides you with the greatest benefit: 1) your earned credits into the system, 2) your current spouse’s spousal benefit or 3) the highest spousal benefit from a former spouse of a marriage that lasted more than 10 years.

            Some people have had more than one former marriage, each lasting more than 10 years. Let’s say you are a high wage-earner and have two former spouses from marriages lasting more than ten years each. Even if both of your former spouses claim and receive spousal benefits from your Social Security, it will not affect the amount of benefits you will receive. 

Q:       I’ve been receiving health insurance coverage through my wife’s work policy. Will my family health benefits lapse when we divorce?
A:        As a matter of strict law, family plan medical coverage terminates on the date of a “qualifying event,” which, in your case, would be the date of your divorce or dissolution of marriage. Federal law requires that, within 30 days of the termination of your benefits, your wife’s employer must notify you about the termination and inform you about COBRA coverage, if that coverage applies. (COBRA coverage allows workers and their families who lose their health benefits the right to continue to receive benefits provided by their group plan for a limited amount of time. If you qualify for a COBRA policy, you may be entitled to a maximum of 36 months of additional coverage. However, COBRA plans are expensive.)

            As a practical matter, most insurance companies will maintain your coverage through the end of the month of the final divorce hearing. Also, to avoid any lapses in coverage, any health insurance policy you may buy after your divorce will be retroactive, which means that it will cover you from the date that your family coverage was terminated.

Q:       How do I receive pension benefits from my soon-to-be-ex spouse?
A:        You and your spouse can divide pension benefits as a term of your divorce or dissolution of marriage. If your spouse’s pension plans are not “qualified” and are not protected by the federal Employee Retirement Income Security Act (ERISA), then they may be divided through a trustee-to-trustee transfer. This is just an administrative division that the appropriate financial professional can handle.

            However, most pensions, such as 401(k), 403(b) and some other defined benefit pension plans, are protected by ERISA. If your spouse’s pension benefits are protected, then the benefit must be divided through a “qualified domestic relations order” (QDRO).  The QDRO is a court order that allocates the retirement asset between the person who earned the benefit (the “plan participant” – your former spouse) and the “alternate participant” (you).  When your pension benefits are allocated, it is a non-taxable event. As long as you keep your share of the retirement in a qualified (retirement) account such as an IRA account, it will continue to grow as a tax free retirement account.

 

Q:       If I die in the middle of the divorce, who inherits my estate?
A:        The answer depends on whether you and your spouse signed a separation agreement before your death, and whether there is language in the separation agreement stating that the agreement will be binding if there is no final divorce decree. If you and your spouse have waived the surviving spouse rights in the separation agreement, which is almost always done, AND the agreement is binding in the absence of a final divorce decree, then whatever you and your spouse agreed to in the separation agreement can be enforced. If you and your spouse did not sign a separation agreement, then all spousal rights apply. 

This “Law You Can Use” article was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Manav (Manu) H. Raj, Esq. of Rieth Antonelli & Raj. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       My soon-to-be ex-wife and I jointly owned our house. Can I put the title into my name alone when we get divorced?

A:        A deed identifies the title, or ownership interest, in your house. When people divorce or dissolve their marriage, usually the property is allocated to one party, or it is sold and the proceeds are divided. If you are the person who “receives” the property, then the title will be conveyed from joint ownership (you and your wife), to single ownership (you or your wife) through a quitclaim deed. You would file this transfer of property at the county recorder’s office (sometimes called a “fiscal office”). There are no tax implications related to this property transfer.

Q:       I didn’t change my name at the time of the divorce but now I would like to. How can I do that?

A:        In Ohio, the probate court usually has primary jurisdiction over the changing of individual’s last names. However, in the case of divorce or dissolution, a person is allowed to go back to using a former name (and only a former name) during the divorce or dissolution process. If, as in your case, you didn’t change your name at the time of the final hearing, then you must file a petition for a name change with the appropriate probate court. If you file a petition for a name change after the divorce/dissolution process, then you are not limited to returning to a former name; you can use any name you choose.

Q:       How do I get off the mortgage to my house?

A:        Mortgage liability is completely separate and apart from the ownership interest in real estate. Conveying a property’s title can easily be completed through a quitclaim deed. Releasing a former spouse from a mortgage liability can only be done if that mortgage is satisfied. This means that the property must be sold and the balance of the mortgage paid from the proceeds, or one of the former spouses must refinance the mortgage. Refinancing a mortgage is another way of saying, “Pay-off that mortgage with this one!” Refinancing (just like acquiring any loan) usually requires a down-payment, collateral and monthly payments.

Q:       My wife’s name is on the title to my car. How do I put the car back into my name alone once we’re divorced?

A:        It is very simple to transfer a title to an automobile, boat, airplane, RV or ATV. If your wife agrees to transfer the title of the car into your name alone, she will simply “execute” (write and sign) a statement on the back of the original title saying that she is transferring her ownership interest in the car to you. Since you are the one receiving her ownership interest in the car, then it will be your responsibility to register the title with the Bureau of Motor Vehicles.

Q:       I’d like to protect my name and my privacy. Is there a way I can “seal” my records so that other people can’t see my divorce settlement?

A:        Generally, civil courts in Ohio are open and public forums, so most proceedings and filings in a courthouse are available to the public. In rare circumstances, a person may ask that a portion or all of a case’s records be placed under “seal” and not be included as part of the public record. To make such a request, you must petition the domestic relations court, and state specifically why your case or file requires confidentiality. The court considers these requests on a case-by-case basis.

This “Law You Can Use” article was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Manav (Manu) H. Raj, Esq. of Rieth Antonelli & Raj. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       Can children testify in a divorce or custody trial?  

A:        Yes, children are allowed to testify in a divorce or custody trial if they are 10 years old or older. Children under 10 may also testify if they appear able to correctly and truthfully explain facts to the court.

Q:       How does a court decide if a child is able to tell the truth or remember facts correctly?

A:        If there is any question about a child’s ability or willingness to tell the truth or accurately remember information, the judge will interview the child to determine if the child can testify. The judge or magistrate will talk with the child about the difference between truth and a lie and will ask general questions about the child and his/her family, friends, pets and school. If the court determines that the child can answer questions and can correctly and appropriately relay information to the court, then the child will be allowed to testify.  

Q:       Can a child witness be asked the same questions as an adult witness?

A:        Although there are no restrictions on the sorts of questions a child can be asked, many factors are considered when deciding what questions should be asked of a child witness and how they should be asked. Depending on the child’s age and maturity, questions must be asked in a way that the child can understand and correctly answer. For example, a child should be asked direct, clear questions one at a time using age-appropriate vocabulary. Individuals should be described using names that are familiar to the child (e.g., “Uncle Johnny”) rather than pronouns. Children may say “I don’t remember” when they really mean “I don’t know” because they may believe that not knowing an answer can get them in trouble. The questioner should explain that “I don’t know” is an acceptable answer.

Q:       Can my son’s wishes or observations be presented to the court without making him testify?

A:        Yes. In fact, children do not ordinarily testify before the court in a divorce or custody case. In most cases, where there is a disagreement about who will have custody or the amount of time a child will spend with each parent, the court will appoint a guardian ad litem to investigate the child’s situation. Following this investigation, the guardian ad litem is responsible for reporting to the court what he or she believes is in the child’s best interest. However, even if the court appoints a guardian ad litem for your son, the judge or magistrate can still interview him. This type of interview, called an “in camera” interview, would occur in private with the judge or magistrate, your son and his guardian ad litem and/or attorney, and will be conducted without either parent being present. The court can use this method of interviewing your son and determining his wishes rather than requiring him to sit in the courtroom and answer questions in front of you and his other parent.  

Q:       What kinds of questions does a judge or magistrate ask a child in an “in camera” interview?

A:        Each judge or magistrate handles talking to a child differently.  The questions asked will differ depending on the age of the child and the issues that must be decided in the case. For example, children may be asked questions about their likes and dislikes and sometimes their memories of certain important events that may impact the court’s decision on the case.  

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by Joseph Nigh, a partner in the Columbus firm of Tyack, Blackmore, Liston, & Nigh, who practices primarily in the area of family law. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       I was “served” my divorce papers through Facebook. Is that legal?

A:        In some jurisdictions outside Ohio (Utah, for example), social media—and in particular, Facebook—is now being used to provide official legal notice of a court action (called “service of process”) to individuals and sometimes even to businesses. Currently in Ohio, however, social media is not listed in the Ohio Rules of Civil Procedure as one of the ways service can be “perfected” or completed. This means that, even though no Ohio law or court appears to have specifically outlawed it, any attempt to serve process via social media may provoke a number of legal arguments about whether or not the case against you may be dismissed due to improper service of process.

            In Ohio, a court usually gives notice by delivering a set of court documents (sometimes called “process”) that usually includes a complaint (saying why you are being sued) and a summons (asking you to respond and/or come to court). Traditionally, “process” has been served by (a) personal service—physically handing the documentation to the person; (b) service to a party’s residence or place of business by mail; or, if the party cannot be located, (c) service by publication in a newspaper of general circulation. However, serving process through newspaper publication when a party cannot be located may no longer be as effective as sending out a notice through social media such as Facebook.

Q:        What happens if someone doesn’t receive court documents through “process”?

A:        If a person or business who started the lawsuit cannot obtain proper service of process, the other party will not receive the necessary “complaint” and the lawsuit cannot move forward. In some instances, the court may even dismiss the case. On the other hand, if a person or business is “served,” but fails to respond in a timely manner, the court may enter a “judgment” against that person or business.

Q:       Why is service by publication a “last resort” for tracking down evasive defendants?

A:        Realistically, a defendant is not likely to receive notice of the lawsuit through publication, because it is the rare individual who takes time to scour newspapers for fine-print-type legal notices. 

Q:       What do other states say about serving process through social media?

A:        While Ohio courts and the legislature have not yet weighed in on this issue, other states are starting to recognize social media as a viable alternative for service of process. In Utah, for example, when traditional methods of service are not viable options, the court can authorize service by means of social media even though the state’s rules of civil procedure do not specifically address social media. In Texas, pending legislation would allow courts to prescribe alternate service via social media if certain requirements are met. 

Q:       If I am involved in a case originating in a state that allows process to be served via social media (or if Ohio allows this in the future), what should I consider before using social media for this purpose?

A:        Serving process through social media might be an attractive alternative for you or your business to use when other methods such as personal service are not viable or are too costly.  However, you should know that a wary and cautious individual who wants to avoid service through social media could easily adjust his or her privacy settings and limit identifying information, and service through social media would not be a viable alternative.

            You should also be aware of the possibility that you may actually serve process on the wrong person, because it is not difficult to imitate or even steal a person’s online identity. Even so, the potential benefit of locating and serving process on the party so you or your business can move on with litigation may outweigh these pitfalls.

            Remember though, that in Ohio, you should still use the traditional methods of service unless and until the social media option becomes available.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Sara Ravas Cooper, an attorney in the Cleveland office of Walter Haverfield. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Disagreements about pets can quickly escalate and lead to litigation. Increasingly, people have been turning to mediation to resolve these issues. In mediation, a neutral party guides discussions between disputing parties so that both sides can share their points of view and work together to create acceptable solutions. This article provides some examples of instances in which mediation can prove a productive alternative to litigation.

Q:       How do I talk to my neighbors about their barking dog?

A:        Having this conversation on your own is often frustrating and may even be dangerous. It is wise to schedule the discussion in a neutral location and not while anyone is angry, preferably in a community or private mediation setting. A neutral setting generally helps to keep the parties’ anger at bay. Community mediation services are often free, or you can hire an independent mediator and split the cost between the neighbors.

Q:       I am getting divorced and my spouse wants me to pay to keep the dog. How can I stop him from holding the dog for ransom?

A:        Frequently, ‘Who gets the pet?’ is the final sticking point in divorce. These conflicts are often about much more than money. If your attorney is unable to hold an effective discussion about the costs of keeping the dog, you may choose to hire a mediator to help guide the conversation. A mediated discussion will, for example, help to clarify why the pet is important to both parties rather than focusing on the cost of keeping the pet.

Q:       My dog has a congenital defect, and the breeder isn’t willing to talk to me about the problem.  How do I get some answers and reimbursement for costs without suing the breeder?

A:        Getting the parties to discuss such an issue can be a challenge, and your initial approach is key to a successful resolution. First, get all the clinical information about the health of your dog, including a brief letter from the vet outlining the medical findings. When you speak to the breeder, try to avoid an accusatory tone and use the term “we” instead of “you” to indicate your willingness to work together to find a solution. Breeders often see health complaints as a criticism of their entire breeding program, even though unfortunate things happen even with the best of breeders and breeds. How you approach a solution makes a big difference in the outcome, so a mediated discussion is often beneficial.

 Q:      A vet gave my dog a drug I specifically said should not be used. I want to talk with the vet and maybe get some money back for the cost of follow-up treatment. Is there anything I can do short of litigation?

A:        Veterinarians must sometimes make split second decisions about how best to save a pet. Afterwards, their hands are often tied by the terms of their malpractice insurance when it comes to discussing the case with a client. If you want to speak to your vet, refrain from using the words “I am going to sue you” and leave your emotions at the door. Approaching a vet to discuss best practices is difficult in the best of circumstances, so if you want to have this conversation, approach it from a position of wanting knowledge rather than trying to prove a position.

Q:       My mother is moving to an assisted living facility that permits dog, but I’m concerned that she will not follow the facility’s pet rules. How can I help my mother keep her dog while assuring the facility that the rules will be followed?

A:        It can be difficult to initiate discussions between your mother and the facility owner about pet rules that help the facility function. If your mother and the facility owner can talk about why the rules are necessary, they may then be able to discuss how to make these rules meet everyone’s needs. To facilitate this discussion, you may want to consider hiring a mediator who specializes in elder conflicts. By asking the right questions, a mediator can help the parties discover where they agree and disagree, and find a solution for the conflict.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Debra Vey Voda Hamilton, Esq., Hamilton Law and Mediation (www.hamiltonlawandmediation.com). Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       I am divorced and my ex-wife is listed as the “residential parent for school placement purposes” in our parenting plan.  My son’s school will not allow me to see his school records since my ex-wife’s name is the only name on the records. Can the school refuse to let me see my son’s records?

A:        No. Unless the school has been presented with a court order that says you have no right to access to your child’s school records, the school is required by law to give both you and your wife the exact same access to your child’s records, even if you are not your son’s residential parent. Assuming your parenting plan has no such restriction, the school was wrong in not allowing you access to your son’s school records.

Q:       Does this rule apply to both public and private schools?
A:        Yes. Both public and non-public schools must comply with Ohio’s “records access law.” Only a court can restrict a parent’s right of access to most records regarding a child, including school records. In order to restrict the access, the court must make a specific finding as to why a parent’s right of access should be limited and the circumstances under which the parent can obtain access. For example, if the court decides it is not in the child’s best interests for the non-residential parent to have access to school guidance counseling records, then the court would have to specifically state its reasons for that decision in its court order. In such a case, the court order would specifically deny the non-residential parent access to school guidance counseling records, but would still allow the non-residential parent access to the child’s grades or other records.   Only with a copy of that court order can the school legally restrict your access to any of your child’s records.

Q:       Does this rule only apply to “shared parenting” plans, or does it also apply to any kind of parenting arrangement when parents are divorced?

A:        This applies to any kind of parenting arrangement, even if the non-residential parent sees his or her child on an extremely limited basis.

Q:       What kinds of records does the “right of access” cover?

A:        There is a very long list of the kinds of records the “right of access” covers. Except when a court specifically denies a parent access to particular records through a court order, a parent has access to “any record, document, file or other material containing information directly related to a child.”

Q:       My ex-wife always takes our children to the doctor. When I called the doctor’s office for information about a medicine my son is taking, the receptionist said my ex-wife would have to sign a release of information form before she could share any information from my son’s record. Can the receptionist do that?

A:        No. Your “right of access” to your child’s records applies to a long list of public and private businesses that are obligated to give you access, including doctor’s offices,  schools, child care facilities (day care centers), hospitals, doctor’s offices, dentist’s offices, psychologists, school counselors, and most state agencies. In the statute, the list is much longer.

 

Q:       Might a doctor’s office violate the HIPAA privacy laws by giving my ex-wife access to our child’s medical records?

A:        Generally, no.  Although there are limited exceptions, a doctor’s office does not violate HIPAA by giving a parent access to his or her child’s medical records, since a minor child’s “personal representative” is allowed to have access. If a doctor’s office does claim that it cannot release records because of HIPAA, then that office should be prepared to establish that one of those limited exceptions applies. In such a case, you may wish to involve your legal counsel to help you obtain the records you seek.             

 This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorney Bobbie Corley O’Keefe of Carlile Patchen & Murphy LLP. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.    

Q:       I’ve been living with someone for ten years, and now we’re splitting up. Can we use a divorce court to divide our assets and debts, even though we aren’t married?

A:        No. If you are not married, Ohio law does not give you the right to stand in front of a court and request an equal or equitable division of your property. The legislature has passed laws governing equitable and equal division of separate and joint property for married couples, but no such statute governs how to determine what is equitable when dividing property between co-habitants. 

Q:       Since we’ve lived together for so long, might we be considered to have a common law marriage?

A:        No. Common law marriage is no longer recognized in Ohio. Ohio law recognizes common law marriage only if it occurred before October 10, 1991 and was not ended by death, divorce, dissolution of marriage or annulment. However, Ohio will recognize a common law marriage if it was proper under the laws of another state for people who are now meeting all of Ohio’s residency requirements.

Q:       Is there a way we can divide our real property, even though we were never married?

A:        Yes. Most people hold their real property as “tenants in common” (meaning that they own it together) or as “tenants with the right of survivorship” (meaning, generally, that they own it jointly, and the entire property passes to one of them on the death of the other person). If you own property jointly as tenants in common, then one of you may wish to buy out the other. However, if you do not wish to do this or cannot agree on the price, you can file a civil action in a civil common pleas court. This is called a “partition action.” The court will consider the property appraisals and the interests of both parties, and decide who should have the property by the partition action. A partition action can be brought if you cannot end your relationship by selling or transferring your interest in the property to each other or to a third party. Also, if the property is not paid for, your interest can be lost, either through the partition action or through a foreclosure action.

Q:       The person I’ve lived with for ten years will not return my personal property. Does Ohio law address this issue even though we’re not married?

A:        Yes. If the other party is holding your personal property and will not release it, you can bring suit in municipal court requesting the return of your personal property. You must, however, be able to prove the suit by evidence such as other witnesses who know you owned the property, receipts for purchase, cancelled checks and such other evidence to show that it is your personal property

Q:       Can I sue my partner if she reneged on her promise to marry me?

A:        No. One co-habitant cannot sue another based only on the promise to marry. If you have lost property or have transferred property based on that promise, you can try to get the value of the property or the property back, but you cannot claim any “damages” (compensation for the injury your partner caused you) based on the promise alone.

Q:       Does Ohio have a Defense of Marriage Act?

A:        Yes. Ohio’s Defense of Marriage Act was passed on Nov. 2, 2005. This act effectively changed Ohio’s constitution to define marriage as a contract between one man and one woman. Article XV, paragraph 11 of Ohio’s constitution says that “the state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or affect of marriage.”

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Dayton attorney James R. Kirkland of Kirkland & Sommers, Co., L.P.A. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

If you are ending your marriage or suing for custody of a child born outside of marriage, you should know about Ohio’s guidelines for determining court-ordered custody and parenting time arrangements. It is wise to proceed very carefully with advice from a family law attorney when dealing with these issues.

Q:       My wife and I are divorcing in Ohio. How will the court determine which of us will have custody of our children?

A:        Ohio recognizes two custodial arrangements: sole custody and shared parenting. The difference between the two is the decision-making rights of the parents. In a sole custody arrangement, one parent makes final decisions for the children in matters such as education, major medical care, religious upbringing and extracurricular activities. In a shared parenting situation, both parents have the same legal right to make final decisions for the children.

            Many Ohio courts begin by presuming that most cases will result in shared parenting, where both parents are actively involved in making major decisions for their children, particularly if the children are older or if the parents made joint decisions about the children before divorce or custody litigation.

            Ohio law says that a court must look at the “best interests of the children” to determine whether sole custody or shared parenting is appropriate. The court takes into consideration many factors. Some are: 1) the wishes of each parent and the children; 2) how comfortable the children are in each parent’s home, school or community; 3) whether one parent has withheld the children from the other parent; 4) whether the parents have difficulty communicating about decisions affecting the children;  5) the mental and physical health of the parents and the children; 6) whether one parent is planning to move (especially if the move is far away or out of state);  and 7) the recommendation of a guardian ad litem involved in the case.

Q:       What are our options for setting a parenting time schedules?

A:        In addition to determining whether parents should make joint decisions regarding their children, Ohio courts also must determine when both parents will see their children (called “parenting time”). Most Ohio courts have a “model visitation or companionship schedule” that suggests a parenting time arrangement. According to such a schedule, the children will live primarily with one parent and see the other parent every other weekend from Friday evening until Sunday evening as well as one additional evening each week (usually Wednesday) for dinner. This “model visitation schedule” may actually be a “bare minimum” schedule that parents might expect the court to set if the custody case proceeds to trial.   

            Parents often depart from this model and agree to tailor the parenting time schedule around their particular family’s needs. For instance, some parents may agree to an alternating week schedule where the children spend one week from Friday to the following Friday with one parent, and then live with the other parent the following week. Research suggests it is better for young children to see both parents more frequently during the week, so some parents of young children may decide to follow a schedule where the children go from one home to the other every two to three days (including alternating weekends). Such a schedule may also work well when both parents work.

            Regardless of the parenting time schedule, both parents can attend school events and their children’s extracurricular activities.  These occasions provide additional time for parents to have contact with their children and support their children’s interests.

Q:       Where will our children go to school?

A:        In Ohio, a shared parenting plan must state who will be the “residential parent for school placement purposes.” If your children attend public school, they will attend school in the portion of the district where the “residential parent for school placement” lives. 

            In a sole custody situation, the sole custodian automatically is also the “residential parent for school placement purposes.” In a shared parenting arrangement, each parent can be a “residential parent for school placement,” so long as both live in the same section of the school district. If parents who share parenting responsibilities live in different school districts, or in different portions of a school district (corresponding with different elementary, middle or high schools), then one parent must be selected as the “residential parent for school placement.”

            If the children attend private school, the residential parent designation is not as important, unless the children will stop attending private school in the foreseeable future.

           

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorneys Scott N. Friedman and Elizabeth Johnson, both of Friedman & Mirman Co., L.P.A. in Columbus. Articles appearing in this column are intended to provide broad, general information about the law. For information about a variety of legal topics, visit the OSBA website at www.ohiobar.org. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.