Child Custody

Designating a guardian of your child

November 28, 2016Filed Under: Child Custody, Estate Planning, Misc Advice, Post Divorce/Custody Issues

A question I get fairly often is: “If I die can I designate someone other than the biological parent to care for my child”.

The short answer: Yes, but it probably won’t matter.

The long answer: When creating your Last Will and Testament, you will be asked who you want to be the guardian of your child if you die while that child is a minor. In situations where the parents are married/together, the parents may contemplate the case where they die in the same accident. Often times the parents choose an aunt or uncle or close friend to be the guardian. Otherwise, it is usually a given that the child would go to the living parent in the case that only one spouse/partner passed away.

Things get a little more dicey when you are divorced or not together with the other parent and you don’t think that parent is fit to take care of the child on his/her own. You are free to name whoever you want as a guardian in your Last Will and Testament, however, at the end of the day the law prefers parents to raise their children. If you die the Probate Court will be made aware of your designation. However, in order to have the Court designate someone other than the parent as a guardian, the person seeking to be the guardian would have to prove that the parent is unfit. Then, the Court would have to analyze whether placing the child with the want-to-be guardian is in the best interest of the child. Proving a parent is unfit is a substantial burden to prove. As you can see, there are several hurdles that must occur before your wishes will be able to be honored.

If you have concerns, it is recommended to name your preferred guardian in your Last Will and Testament because if the other parent is unfit, you will want the Court to know your preferences.

Can you force a parent to have visitation with his/her child?

November 22, 2016Filed Under: Child Custody, Dissolution, Divorce, Post Divorce/Custody Issues

A question was recently posed to me regarding a parent’s ability to force the other parent to have visitation with his or her child.

You generally cannot force the other parent to exercise his or her visitation if you have full custody of your child. Visitation is considered a “right”. Similar to other rights – such as voting – you have the ability to exercise your right but can’t be penalized for choosing not to exercise that right. Your right can be taken away from you only for good cause. In contrast, supporting your child is a responsibility. A responsibility – such as paying taxes – can be forced upon you if you choose not to honor that responsibility. The Court has the ability to force the Obligor to pay child support even if he or she doesn’t want to.

One caveat to this is if the parents have a shared parenting plan (Ohio’s version of joint custody). I have heard one judge say that she would find a parent in contempt for not exercising his time under a shared parenting plan. I have never personally pursued such a finding because from a practical standpoint it just doesn’t make sense. The more logical pursuit would be to ask the Court to modify the non-compliant parent’s parenting time and increase his/her child support because he/she is not exercising the time, putting more of the burden on the other parent.

Holidays and Divorce

November 17, 2015Filed Under: Child Custody, Dissolution, Divorce, Misc Advice

The holidays are here! Can you believe it? For divorced/living separate families, this time of the year can present a whole host of new challenges and anxieties. While you were married or together you may have split Thanksgiving between two or even three events with various parts of your extended families. You may have spent Christmas Eve with your family and Christmas Day with his family. You may have agreed to stay in town for Thanksgiving every year and celebrate with your family and go to Chicago to visit his parents every year for Christmas. When a breakup happens, it is inevitable that your yearly traditions will change. These changes may be hard on you, your children, your former spouse or significant other, and the extended families involved.
A common way that separating individuals handle holiday division is by implementing the Court’s standard order. The standard order serves, among other things, to divide up holidays with the children between the mother and father. For example, during even years the mother may have the children until 9pm on Christmas Eve and the father may have the children at 9pm on Christmas Eve through the day after Christmas. This arrangement works well for a lot of individuals, especially those in a high conflict situation where sitting down and negotiating is simply not an option. Keep in mind that your family is not bound to follow the Court’s standard order. The parents can make any agreement that works best for their family. I recommend if at all possible that parents first consider their holiday traditions and try to tailor their agreement around those traditions if such traditions exist. This consideration and specific tailoring of the holidays may bode well for your children’s adjustment to the separation. If concessions are made and your holiday schedule looks different than before, that is okay too. Overtime new traditions will develop. You may also need to have a talk with your extended family and come up with alternative plans. Hopefully your family will be understanding and willing to modify their holiday traditions so that your children can be included in the celebration! At the end of the day, it really is all about your attitude and willingness to be flexible that will make or break this holiday season. I wish you and your family peace and happiness!

Can my child choose who has custody in a Ohio Divorce?

November 12, 2015Filed Under: Child Custody, Dissolution, Divorce

One of the most common questions I am asked by a client is “How old does my child to have to be before she can choose what parent she wants to have custody of her after a divorce in Ohio?”

The answer to this question is that there is no specific age where the Court has to rely on a child’s wishes solely when determining who will have custody of her.

In 1991, the Ohio divorce custody statute was amended and the right for a child to choose the custodial parent was deleted. The new custody statute (contained in Ohio Revised Code 3109.04 – http://codes.ohio.gov/orc/3109.04) spells out a list of factors that the Court must consider when allocating custody of a child. These factors include the following:

Wishes of the parents
Wishes of the child
Child’s interaction and relationship with the parents, siblings, etc
Child’s adjustment to the home, school, and community
Mental and physical health of all persons involved
Which parent is more likely to honor court approved visitation/companionship rights
Whether either parent has failed to make all child support payments
Whether either parent (or other member of the household) has been convicted of a criminal offense that resulted in the child being abused/neglected (sex offenses, etc.)
Whether one of the parents has willfully denied the other parent his/her parenting time
Whether either parent has or is planning to establish a residence out of state

As you will note in #2 above, the wishes of a child are required to be taken into account in a custody analysis by the Court. However, this one factor isn’t always outcome determinative as there are 9 other factors for the Court to review. However as the child becomes a teenager, this factor is probably weighted more than if the child is 7 years old. The bottom line is that your child’s wishes aren’t always determinative of the outcome of custody but they are important and taken into consideration during a full analysis under the law. If you have any additional questions regarding your Cincinnati divorce or wish to set up a consultation please contact Olivia through the information on her website.

Designating a guardian of your child

Can you force a parent to have visitation with his/her child?

Holidays and Divorce

Can my child choose who has custody in a Ohio Divorce?

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