Defining Legal Custody in Ohio
Legal custody in Ohio, as defined by Ohio law, is the right to make major decisions for a minor child and also physical control of that child along with an obligation of providing care, nurture, guidance, and control for that child. This means that the legal custodian has the authority to decide where the child goes to school, whether they enroll in sports or other extra curricular activities, what religion they will practice, and ultimately, how they will be raised. A legal custodian also has the right to decide if a child should receive medical or psychological treatment from a doctor such as a psychologist.
By contrast the parent who does not have legal custody would not be able to make those decisions regardless of whether they were the better choice . Therefore, the custodial parent’s decision may be the correct one and the non-custodial parent’s decision the incorrect one yet under Ohio law the non-custodial parent has no right or ability to interfere with the custodial parent’s decisions.
An additional consideration is when there is a parent who engages in conduct that can be detrimental to the child during parenting time. If a parent has legal custody and sole physical custody of a child yet observes the other parent acting quickly under the influence of alcohol or drugs and neglecting the care of the children that custodial parent may be able to ask the court to issue an emergency order suspending parenting time. This does not mean the custodial parent gets to be the judge and jury in the situation, but in an emergency the courts understand that the custodial parent should have the ability to protect the child(ren) rather than wait for weeks for the court to hear the motion to suspend parenting time.
Understanding Permanent Custody
Permanent custody refers to a Court’s order granting full legal custody of a child to a permanent custodian. At the time of the Order, the child’s parents are no longer considered a viable option for the child. This is seen as the "best interest" of the child. Some may feel that this eliminates any parental rights. This is not accurate. The parents may be legally barred from having parenting time. However, this is not tantamount to termination of parental rights.
Permanent custody is different than legal custody. Legal custody allows for both natural parents to remain in the legal decision-making process over the life of a child. It is a joint claim to the child. A permanent custody order does not allow the parents that same decision-making process. The Court designed Permanent Custody to resemble adoption. This may or may not be a good thing. However, an individual should be aware of the ramifications of Permanent Custody before assuming it is the alternative for termination of parental rights.
Legal and Permanent Custody Distinctions
Legal custody in Ohio grants a caretaker the right to make important decisions pertaining to a child’s welfare and upbringing. The fact that a person has legal custody does not necessarily mean that the child lives with that person full time, or even part-time. People may have shared legal custody (sometimes called joint legal custody) of a child without engaging in physical care. For example, a Victim may have legal custody for the purpose of determining where the child will live, and where the child will attend school, but the child may be physically removed from that person’s home. Of course, Victims frequently do have 50/50 parenting time schedules with the children, making the distinction between legal and physical custody sometimes murky.
Permanent custody in Ohio is the chance to earn long-term custody of a child, rather than being subject to regular review of the arrangement by the child’s local juvenile court (in Franklin County, this would be the Franklin County Court of Common Pleas, division of Domestic Relations). Permanent custody can be requested by the child’s birth parent, and a guardian ad litem may request perpetual judicial intervention as well. Permanent custody in Ohio terminates the rights of parents, and grants custody to the guardian. A bond is formed between the child and the new legal custodian.
In family court, the permanent placement of a child requires the guardian ad litem to set forth the analysis of the benefits of permanent custody through a process. In Franklin County, this process is known as PEP-T-GAC, or Permanent and Expressive Placement Through The GAC (or Guardian Ad Litem Advocacy Council). The current law requires that the GAL interview at least five family members in the child’s family tree, and that the case worker assigned to the child’s case consult with medical bereau staff, educational bureaucracy, and other experts as part of this process. The Guardian ad Litem can rely upon resources authorized by the Ohio Revised Code, but it is in the discretion of the Guardian ad Litem what resources to employ and how thorough to be. The main difference between legal custody and permanent custody is the analysis that is conducted by the Guardian ad Litem and supporting experts. For the Guardian ad Litem to recommend permanent custody at a trial before a Franklin County Judge, the Guardian must set forth sufficient evidence to establish that it is in the child’s best interest to terminate all parental rights and award custody to the guardian.
How Do Ohio Courts Decide Between the Two Types of Custody?
Ohio courts have broad discretion to determine whether to issue a grant of legal custody or permanent custody. To some degree, the primary interest of the courts is to ensure children are "protected and nurtured." As a result, the legal standard for granting legal custody of a child is generally lower in an abuse and neglect situation than it is for the issuance of a permanent custody grant. Since permanent custody means there can be no interference with the legal gatekeepers of a child’s upbringing, a permanent custody grant is the equivalent of a complete severance of parental rights and duties. Due to the gravity associated with a permanent custody award, the bar is much higher for the award of this type of custody arrangement.
The factors the courts consider when deciding whether to issue a permanent custody award or legal custody award of a child include: In the majority of cases, the interests of the children are intertwined within the interests of the parents, but in certain cases, the two interests are at odds with one another. When this occurs, the court must look at all the reasons and factors contributing to the danger of the child’s continued residence with the parents. In situations of this nature, the termination of parental rights must be shown to be in the child’s best interests. The ultimate question a court must ask when determining what type of custody award to issue is whether the child’s present and future physical, emotional and mental interests will be promoted with the particular custody award. Therefore, in order to place the question into context, the court must not only be mindful of the child’s interests, but must also look to the factors which, in turn, have a corresponding effect on the best interests of the child. For example, the propriety of separating a parent from a child should concern the court. In addition to considering the consequences of separation to the parent and child, the "impact of the separation on the other children who reside with the parent and the present arrangements for their care are relevant factors to consider in making custody determinations." (See In re Smith)
When Ohio Courts Can Modify Custody
In Ohio, custody orders are not necessarily permanent. The legal or physical child custody arrangement can be modified in two ways: by consent of the parties and by motion to modify custody. If the parties agree to modify a final custody order, the court will make the agreed modification part of its court order. However, the court cannot grant a consensual modification of legal custody unless it is in the best interest of the minor children. Additionally, if the parties have not agreed to a change in custody, either party may file a motion to modify the order. When a motion is filed, the court will hold a hearing on the issues. "To prevail upon a motion to modify custody, the movant must satisfy the statutory test set forth in R.C. 3109.04(E) to justify a modification." See Baker v. Baker, 2016-Ohio-7875. In the motion, the moving party has the burden of demonstrating that there was a change of circumstances which necessitated the requested modification in the best interest of the minor child .
Prior to the award of shared parenting in 1991, the change of circumstances standard was a stricter standard to meet for a modification of legal custody. The standard required a showing of a change of circumstances followed by a determination that a change in custody was in the child’s best interest. See Baker v. Baker, 2016-Ohio-7875, SEO ΒΆ 26. Now, Ohio judges have judicial discretion in determining whether a change in circumstances is needed prior to a change in legal custody. Courts have determined that when considering a motion to modify legal custody, the burden of showing a change of circumstances may be relaxed. See R.C. 3109.04(E)(1)(a) through (d).
In Ohio, the following are some common reasons cited by parents requesting a modification of legal custody:
When a modification of legal custody is requested, the judge will issue a ruling on the change of custody under its statutory role.
Custody Impact on Parental Rights
The impact of legal custody v. permanent custody is significant under Ohio law. For example, with respect to major decisions, only the legal custodian of a child under 18 can do the following:
- Consent to marriage;
- Consent to baptism;
- Consent to medical treatment;
- Sell real estate or other property;
- Consent to scholarship, inheritance or gift; or
- Consent to enter into a binding contract on behalf of the child.
Thus, if one parent has legal custody and the other does not, only the legal custodian has the right to affect the child’s life in the aforementioned ways.
Additionally, if both parents share legal custody of the child, only the parents acting together may consent to the items above on behalf of the child.
Moreover, the parent with legal custody of the child may disaffirm the contracts and gifts entered into by the child or cancelled by the child.
However, as under Ohio law, all contracts entered into by a minor except those enumerated above are voidable by the minor or can be ratified by the minor upon reaching the age of majority. Thus, even if a parent has legal custody and consented to a minor child’s contract, the child may later cancel it or affirm it when he or she is an adult.
Ohio Custody Lawyers
Although this blog post is designed to provide you with a good understanding of the distinctions between legal custody and permanent custody, in all likelihood you will eventually come to the conclusion that your best interests are served by getting legal assistance in resolving all of your custody related issues. Not all custody cases require legal assistance, however, if your child was born in wedlock, you may not need a custody order right away, or at all, because legal custody can be established through the filing of a birth certificate.
Ohio law requires that all parents take an active role in their children’s upbringing, and one way that Ohio ensures that parents fulfill their parental duties is by requiring that a decree be in place awarding any parent that does not have residential parent status the in loco parentis status. This means that the court envisions them having a relationship with their child. It should be noted that unless the father is adjudicated the legal father, he cannot have parenting time until this is done. In order for an unmarried father to be adjudicated as the legal father, he must submit an acknowledgment and affidavit of paternity to the hospital at which the child was born, the Ohio Department of Health Vital Statistics office, or the Ohio hospital or birthing center where the child was born, or must sign the paternity section on a child support order. Once this is done, like most married couples, you and your ex can come to an agreement regarding child visitation or parenting time, and submit the same to the Court for approval. If the parties cannot agree on a schedule, they will be required to go to mediation and a shared parenting conference with the Court in order to create an agreed schedule. In fact, the past few years, even some families who can definitely agree on a schedule are sent to mediation just to talk about the child’s best interests. In the end, the end result should lead to a Joint Parenting Plan being submitted to the court for its approval.
So, does a child’s legal custody status ever change? Yes. After divorce and dissolution, a custodial parent may move outside of Ohio. Under those circumstances, the court may grant legal custody to the custodial parent, or the parties can agree to joint legal custody . Further, a judge in Ohio can award custody to someone other than a parent if the child is abandoned, neglected, or abused. This is very rare, and does not occur often.
Usually, custody switches occur with a divorce or dissolution and as a result of the parents allowing the child to remain with a grandparent for a significant period of time. The reason for legal custody switching is for the best interest of the child. Often times, stability is considered the most-important factor. In these situations, it is usually best for the child to remain where they have been on residence, and the court will make the best decision if you hire a family litigation attorney in Ohio. For a more thorough explanation of dissolution and divorce, check out our blog on the differences and benefits of both.
Another situation that may arise resulting in a change of legal custody is as a result of the death of a single parent. In this case, the child is already with the grandparent or other parent. In Ohio, grandparents can receive custody only if they are married to the other grandparent.
Your custody case in Ohio will be highly complex with many factors at play. Thus, hiring a family law attorney who has your best interest at heart is paramount to any custody battles you are facing. A good starting point is to visit the website Avvo.com. Initially, Google Avvo in Ohio and read the lawyer’s reviews. If you still have some viable options, start narrowing down your choices by seeing how long they have been practicing law, their education background, and finally, their area of expertise (ideally, they should be in family law). Finally, set up a consultation with the attorneys on your list. Ask them about their past experience with child custody and parenting time scheduling cases. Ask them if they are personally familiar with the judges in your area and what type of rulings you could expect from them. After meeting with them, you should be able to make your choice. Find a lawyer who has a good personal connection with you, is passionate about their job, and has extensive experience with custody cases. Also, the more prepared you are for what to expect from your custody case in Ohio, the better off you are.
