I like to say that in the United States, everyone is a lawyer, or rather thinks they are. It is funny how laypersons are more comfortable giving legal advice than attorneys are (we know the consequences). For this reason, I have come up with four very common misconceptions about custody law in Ohio. I hope this article does something to dispel these incorrect and pesky rumors.
1. Once my Son/Daughter Reaches Age X, They Can Decide Who to Stay With
I chose to start with this misconception because there used to be more than a grain of truth to it. Indeed Ohio used to have a statute that determined at what ages a child’s wishes were to be considered, not considered, differed to, etc. Notice I said “used” to. That is because that statute is long since repealed. The Ohio Legislature (correctly in my opinion) saw the law as arbitrary, noting that some eight year olds can be as mature as fourteen year olds, and some sixteen year olds hardly more mature than toddlers. It all depends on the maturity and life experiences of the child(ren) at issue. For this reason, when a court determines “the best interests of the child,” it considers the wishes of the children as one of a number of factors [See Ohio Revised Code 3109.04(F)(1)]. The wishes of a mature child are very persuasive, but it is not the end of the issue.
2. Judges Always Rule in Favor of the Mother
I have even heard fellow attorneys who do not practice domestic relations relate this misconception to their clients. Statutes pertaining to children in a custody proceeding are gender-neutral when it comes to the best interests of the children, and in practice I have not witnessed a gender bias among magistrates or judges. To be fair, mothers do have a couple advantages in custody proceedings. First off, if the parents were not married when the child was born, mother is made sole residential parent and legal custody of the child from time of birth until further action of the Court (See ORC 3109.042). In this situation when a father files for custody, the court looks at the case from a “best interests of the children” standard (i.e. a level playing field), but because mother can withhold time until action of the court (Always speak to an attorney if you are considering withholding time. It could seriously hurt your interests in the long run.), mother may have a better opportunity to establish herself as the primary caregiver. The other biggest advantage mothers have is women in the United States are usually the primary caregivers to infants and younger children. This norm is changing, but can give mother a partial advantage in custody cases when the children are young.
3. If He/She Does Not Pay Their Child Support, I Can Withhold Parenting Time
This misconception has predicated innumerable contempt motions. On its face, this misconception looks perfectly reasonable. If he/she is not paying their child support, why should they get to see their kid(s)? The logic of this looks a little less reasonable when you look at in from a legal prospective. What an attorney hears when they hear the above misconception is “because he/she violated a court order, I can violate a court order.” No dice. Courts expect to be obeyed, whether or not the other party is obeying. Mom being in contempt of court does not mean Dad cannot be in contempt of court. If a party is not abiding by the terms of a custody arrangement, contact your attorney about your options, and abide by all the terms of the court’s order as best you can.
4. He/She Only Wants More Time with the Child(ren) Because He/She Doesn’t Want to Pay Child Support
I put this one last because yes, some parents actually do file for custody at least partially motivated by thinking they will ultimately not have to pay as much (if any) child support, but in reality, it usually just isn’t the case. Believe it or not, your ex almost certainly loves your child(ren), probably more than he/she dislikes you. A child support order can bring a custody dispute to a head, but the dispute existed before the child support order was issued. I act as Guardian ad Litem for numerous cases, and I hear this argument all the time, but rarely see it substantiated. The idea that having children more often will cost them less money is not akin to reality. I understand your ex has probably done dozens of things in the past to spite you, but when it comes to time with their kids, their motivations probably are not as sinister as you suspect.