What Is Involved In A Child Custody Case?
In a child custody case procedures for dividing parental rights and responsibilities now emphasize the rights of the child to be loved, protected and supported, while maintain relationships with each of the parents, despite difficulties the parents may have with each other.
Every parent has certain rights and responsibilities for the care of the children by virtue of being a parent. When parents divorce, these rights are responsibilities are even more important. The court’s role is to ensure that the “best interest” of the children is protected. Therefore, the parental rights and responsibilities are expressly “allocated” to the parents.
A court has two basic options in allocating parental rights and responsibilities; adopting a plan for shared parenting (formerly called joint custody), or naming one parent as the residential parent and legal custodian. At times, when the parents’ disagreement is considerable, the court may seek additional information and guidance from a guardian ad litem (a neutral person appointed by the court to protect the children’s best interest), court investigators or social works, and if either parent requests it, by interviewing the children. Usually this guardian is an attorney and is paid by both of the parties. The court may, however, order that only one party pay all of the guardian's fees.
Allocation cases often times involve the use of psychological experts who have examined all of the members of the family. Allocation cases might also involve employment experts who are used for the purpose of stating how much one of the parents should be earning (so that child support can be fairly computed).
When parents begin an action involving the "allocation" of their rights concerning their children they may also be opening the door for others such as grandparents (or even non-relatives) to assert their desires to be with the children and to get court orders for time with the children.
Many times, in child custody cases, there will be the need to have teachers, physicians, pastors, neighbors, family members and others testify so that the court can have an accurate and full "picture" of the children and their parents.
What are visitation rights?
"Visitation" is no longer an acceptable term since it implies that one is only "visiting" with a child. The courts prefer to use the term "parenting" at this time. Parenting time can be restricted or supervised in some extreme cases. Generally, each court will have a local rule setting forth parenting time which is a "minimum" or "standard" parenting time. Parenting time can be agreed to by the parents or ordered by the court.
What factors do courts consider in allocating parental rights and obligations?
Courts are guided by statutes and prior court decisions. The factors a court will consider when making decisions about parenting time and parenting obligations will include:
- The wishes of the child's parent regarding his care
- If the court has interviewed the child in chambers pursuant to (the Ohio Revised Code's applicable section) regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of this child, as expressed in court
- 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 the child's home, school and community
- The mental and physical health of all persons involved in the situation
- The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights
- Whether either parent has failed to make all child support payments pursuant to a child support order under which that parent is an obligor
- Whether either parent previously has been convicted of or pleaded to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was member of the family or household that is the subject of the current proceeding and 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 child 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
- Whether either parent has established a residence, or is planning to establish a residence, outside this state
What is shared parenting?
Shared parenting is an arrangement which is much like the arrangement the parties may have had before the marital termination began. Shared parenting plans vary widely in their assignments of time and responsibilities each parent may have with the children. Shared parenting plans should provide that each parent will encourage the children to love and respect the other parent and shared parenting plans may provide that the parents shall share in the decision-making process in regard to the children.
One thing that should be stated is that when parties have a shared parenting situation this does not mean that no child support will be payable. Even when the parents spend equal amounts of time with the children this does not mean that there will be no support.
In shared parenting both parents should be designated as the "residential" parent of the children and as the "legal custodian" of the children. Because of schools being concerned with the "residence address" of the children attending schools, a shared parenting plan will designate one of the parents as the parent whose residence will be used for "school placement purposes".
How is child support determined?
Essentially, child support is calculated using statutory guidelines set forth by law. The basic information going into calculations using the guidelines includes information about each party's earnings, each party's local taxes, and whether any other child support or spousal support (alimony) is being paid. The calculations also consider work related or education related child care as well as the costs of provision of health insurance for the children.
Can child support be more or less than the guidelines?
The law provides that the parents or court can assign value to time the parents spend with the children and deviate, either up or down, from the guidelines. Other factors, like a child's participation in private school or a child's health may permit a court or the parents to deviate also. The court may also deviate if it finds that it is in the best interest of the child. We have had cases where we have successfully petitioned the court for support which is above guidelines in the case where the children are enrolled in private school. We have also received deviations to less than guideline support where the time spent with the children is more than that provided by local rule.
If you still have question or feel your case is more complicated than the typical child custody case than feel free to give us a call for a free consultation at: (513) 942-7222