This is the 2nd installment in a series by Virginia Cornwell, a A State of Ohio Grandparent Rights Lawyer and Ohio State Bar Association Certified Family Relations Specialist.  Virginia is one of approximate 100 attorneys in Ohio to have received this honor.

WHAT MAKES A PARENT UNFIT IN OHIO?

According to the Ohio Supreme Court case In re Perales (1977) 52 Ohio St.2d 89, in order to find a parent unsuitable, a court must find by a preponderance of the evidence, that the parent:

• Abandoned the child, or
• Contractually relinquished custody of the child, or
• That the parent has become totally incapable of supporting or caring for the child, or
• That an award of custody to the parent would be detrimental to the child.

In addition, if the court makes a finding of unsuitability  it must be based upon adverse impact upon  the child.  The court’s finding cannot be based on society’s judgment of the parent.  In other words, if the parent is doing something that society does not approve of, but has no impact on the child, then a court cannot use that as a basis for awarding custodial rights a non-parent.

So what is the difference between what is detrimental to the child, and what is simply a matter of societal norms?  Essentially, the difference lies with the child, the perceptions of the child, the witnesses, the guardian ad litem and the Judge or Magistrate.  It is a fine line, but the starting point should be an objective look at the child – what does the child perceive as being detrimental?  The child’s perception alone is not determinative, and but it is significant.  The actions, behavior, preferences and well being of the child will be closely scrutinized.  The child’s physical and mental health and behavior in both environments will be considered.  A good discussion of the fine line between adverse impact / harmful effect and societal norms can be find in the case In re Z.A.P. 177 Ohio App.3d 217, 2008 Ohio 3701.

In cases between a parent and a non-parent filed under Ohio Revised Code 2151.23(A)(2) ( Ohio Revised Code Statute that says Juvenile Court has jurisdiction over children not already the ward of another court, except in Richland and Fairfield Counties – where matters are heard in the domestic relations court), a court may not award custodial rights to a non-parent without first finding that the parent is unsuitable to raise the child.

UNSUITABILITY (UNFIT) AND GUARDIANSHIP IN PROBATE COURT

For example, the Hockstock court discussed a prior case,  Masitto v. Masitto (1986), 22 Ohio St.3d 63, in which the natural father of the child, prior to divorcing the mother, had consented to the grandparents receiving guardianship of the child through the probate court.  The natural father and mother later divorced, and made no provision for parental rights in the divorce, but instead incorporated the guardianship order of the probate court.  The Supreme Court noted that in Masitto, the father had contractually agreed to the appointment of the grandparents as legal guardians, and that Ohio Revised Code2111.06 requires unsuitability as a prerequisite for guardianship.  This means that any parent who gives guardianship of their children to grandparents (or someone else) in probate court has, by their own consent, established their unsuitability and has opened the door for custody to the person who received guardianship.

TEMPORARY VS. LEGAL CUSTODY, AND UNSUITABILE (UNFIT) PARENTS

In the Ohio Supreme Court case, In re Hockstock, which arose out of Licking County, the Ohio Supreme Court noted that there is a distinct difference between a parent granting temporary custody to a grandparent, and a parent granting legal custody to a grandparent.  Specifically, the Hockstock court found that a grant of temporary custody was not a “contractual relinquishment of custody of the child”, and in fact, the parent had contested the award every time the grandparents sought to obtain it.  The Hockstock court also noted, that even when a parent has relinquished their custodial rights to a non-parent, the parent has residual legal rights, and the grant is  NOT a termination of parental rights.  The Hockstock court noted the statutory definition found in Ohio Revised Code 2151.011(B)(19) specifically provides that there are residual parental rights, even when a parent has given up or lost custodial rights:

“Legal custody” means a legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities. An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by any section of the Revised Code or by the court.

It is important to note that in the Hockstock case, the parent contested continued custody at every opportunity.  A parent who did not do that may experience a different legal result, and may have to prove a change in circumstances.

The other articles in the series can be seen here:

Part 1 (Table of Contents, Unsuitability) Part 2 (Unsuitable aka Unfit, Never Married, Guardianship, Probate Court, Temporary Custody vs. Legal Custody) Part 3 (Custody, Children Services cases) Part 4 (Custody, Children Services cases, Interstate Compact on the Placement of Children) Part 5(Custody, Visitation in general)

Part 6 (Visitation, Married Parents) Part 7 (Visitation, Unmarried Parents, Unmarried vs. Married Parents, Parent Deceased) Part 8 (Filing the Right Motion), Part 9 (Grandparent Caretaker Affidavit, Grandparent Power of Attorney)

DISCLAIMER – read it, it’s important!