Ohio no longer uses the term "custody." Instead, Ohio courts "allocate the parental rights and responsibilities for the care of the minor children of the marriage." When making this determination, the court must take into account the best interests of the children.
(See Child Custody in Ohio: The Best Interests of the Child for detailed information.)
How are parental rights and responsibilities allocated in Ohio?
Ohio courts may allocate parental rights and responsibilities for the care of the children in either of the following ways:
- The court may allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designating that parent as the "residential parent" and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children, including, but not limited to, the responsibility to provide support for the children and the right of the parent who is not the residential parent to have continuing contact with the children.
- In the alternative, the court may allocate the parental rights and responsibilities for the care of the children to both parents and issue a "shared parenting" order. This type of order requires the parents to share all or some of the physical and legal care of the children in accordance with an approved plan for shared parenting. In a shared parenting situation, both parents, regardless of where the child is physically located or with whom the child is residing at a particular point in time, are considered the "residential parent," the "residential parent and legal custodian," or the "custodial parent" of the child.
What is "shared parenting"?
"Shared parenting" is the term Ohio uses for what many other states refer to as "joint custody." The court may allocate the parental rights and responsibilities for the care of the children to both parents and issue a shared parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the children. It does not necessarily mean an equal, 50/50 division of time with the children, child support, or any other issues.
How does the court determine what is in the "best interest of a child" when allocating parental rights and responsibilities?
In determining the best interest of a child, the court considers all relevant factors. These include, but aren't limited to:
- what the child's parents want
- the wishes and concerns of the child, if the court has interviewed the child in chambers
- the child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest
- the child's adjustment to his home, school, and community
- the mental and physical health of all everyone involved in the situation
- which parent is more likely to honor and facilitate visitation and companionship rights approved by the court
- whether either parent has failed to make all child support payments, including all arrearages, that are required by a child support order
- whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being abused or neglected; whether either parent, in a case in which a child has been adjudicated an abused or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act underlying the adjudication; whether either parent previously has been convicted of or pleaded guilty to a charge of domestic violence and whether he/she caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused or a neglected child
- whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent his or her right to visitation in accordance with an order of the court, and
- whether either parent has established a residence, or is planning to establish a residence, outside of Ohio.
To assist it in making these determinations, the court may order an investigation to be made, prior to trial, of the character, family relations, past conduct, earning ability, and financial worth of each parent. The court may also order the parents and their minor children to submit to medical, psychological, and psychiatric examinations.
How does the court determine whether to grant shared parenting?
If at least one parent asks the court to grant shared parenting the requesting parent must submit a proposed shared parenting plan that includes proposed provisions covering all factors that are relevant to the care of the children, including, but not limited to physical living arrangements, child support obligations, medical and dental care, school placement, and where the child will stay during legal holidays, school holidays, and other days of special importance. The court can also order the parent not requesting shared parenting to submit a proposed parenting plan. If both parties agree on shared parenting, they can submit a joint shared parenting plan.
The court must then review the proposed plan or plans and determine whether shared parenting is in the best interests of the child or children. If so, the court will decide which plan or plans submitted is in the best interest of the child. The plan submitted may be modified if ordered by the court.
When determining whether shared parenting is in the best interests of the child or children the court must consider all of the best interests of the child factors listed above, as well as:
- the parents' ability to cooperate and make decisions about the child jointly
- each parent's ability to encourage the sharing of love, affection, and contact between the child and the other parent
- any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent
- the geographic proximity of the parents to each other, as it relates to the practical considerations of shared parenting, and
- the recommendation of the guardian ad litem of the child, if the child has one.
Can an allocation of parental rights and responsibilities be modified?
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court then, that a change has occurred in the circumstances of the child, the residential parent, or either of the parents subject to a shared parenting decree; and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the residential parent designated by the prior decree or the prior shared parenting decree, unless a modification is in the best interest of the child and one of the following is true:
- The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.
- The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.
- The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.