When parents divorce in Ohio, the court must allocate parental rights and responsibilities for their child or children. This article explains how courts make that decision, particularly when the court considers shared parenting (Ohio's term for joint custody). For all of our articles on divorce law in Ohio, see our Ohio Divorce and Family Law page.
What is Shared Parenting?
When thinking about who will be responsible for raising and caring for children, most people use the term "custody." If both parents will share the duties, they are said to have "joint custody." In Ohio, these terms have largely been replaced. The parent who is designated by an Ohio court as the "residential parent and legal custodian" of a child has been granted legal custody of that child, meaning that the residential parent has the authority to make the basic decisions that affect the child, such as where the child will go to school or whether the child will be raised in a particular religion. "Joint custody" has been replaced in the Ohio Revised Code with the term "shared parenting". Parents who are awarded shared parenting have equal legal rights and responsibilities for their children and, unless the Shared Parenting Plan provides otherwise, equal decision-making authority.
The Best Interests of the Child
The court's allocation of parental rights and responsibilities, whether in the form of shared parenting or sole residential parent and legal custodian status, must be based on the best interest of a child. Section 3109.04 of the Ohio Revised Code requires the court to consider several factors in deciding where the child's best interests lie, including the wishes of the parents; the child's wishes and concerns (if the child is capable of expressing them); the child's interaction and interrelationship with parents, siblings, and any other person who may significantly affect the child's best interest; the child's adjustment to home, school and community; the mental and physical needs of child and parents; whether one parent is more likely to honor and facilitate court-approved parenting time rights for the other; whether a 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.
When the court is considering whether shared parenting is in the best interest of the child, the court must also consider whether the parents can cooperate and make decisions jointly; the ability of each parent to encourage the sharing of love, affection, and contact between the child and other parent; any history of abuse of the spouse or child; parental kidnapping; the geographical proximity of the parents to each other; and, the recommendations of a guardian ad litem (if one is appointed).
The Shared Parenting Plan
Shared parenting may be requested by either parent or both. In either case, a Shared Parenting Plan must be presented to the court. The plan must contain provisions for all of the issues the court has jurisdiction to decide. The plan should indicate where the child will live and go to school. The plan must designate which parent will decide important issues such as medical care, education, and so on. Either parent or both may be named.
The plan must also set forth a specific parenting time (formerly known as visitation) schedule. The parenting time schedule must be specific and should address the regular time alternation as well as holidays, birthdays, school breaks and vacations. While parents are free to vary parenting schedules by agreement, a specific schedule is required in the order; you can't fudge the issue by granting "liberal" parenting time or something similar. Although many people believe that shared parenting requires the parents to divide the parenting time equally, that isn't the case. The plan may set forth any workable allocation of time, including an alternating weekend schedule as would be common if one parent was named the residential parent.
Child support must be addressed. Again, many people believe that no child support should be required in shared parenting, because the parents are splitting their duties. Although that may happen, it is not the standard. Child support is ordered in the majority of shared parenting cases.
The plan must also provide for medical insurance and medical expenses. That is, one or both parents must provide medical insurance, and the plan must also provide for the payment of uninsured medical expenses such as co-pays, deductibles, and uninsured expenses such as orthodontia (if there is no dental insurance).
The plan should allocate federal tax exemptions and child credits.
Many other issues can be incorporated into a Shared Parenting Plan such as allocation of decision-making authority, college expenses (only if agreed), religious instruction, and a multitude of specifics (including drop-off and pick-up provisions, telephone contact, vacation itineraries, and more). In the event of an agreed or ordered shared parenting plan, the Court will also issue a shared parenting decree. Because the court retains jurisdiction over the child or children until emancipation (generally age 18 or high school graduation, whichever is later), the plan may be modified or terminated upon the motion of either party.