Virginia Cornwell is a Custody Lawyer in Columbus, Ohio.  She is also an OSBA Certified Family Relations (Family Law) Specialist.

This is a question that we hear a lot.  The circumstances that led to the question are widely varied, and because of that, so is the answer.   The one common denominator though, is if you really did lose custody in Ohio, then you need to start with a change of circumstances if you want to get it back.

At this point, people often ask “What is a change in circumstances?”  But before you answer that question, you must determine the answer to this question:  Whose circumstances must be changed?

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In a sole custody situation, there must be a change in circumstances of the residential parent, or the circumstances of the child.  When one parent has sole custody (residential parent and legal custodian), the circumstances of the non-residential parent are not considered when the court determines whether there has been a change of circumstances.  In Ohio, if a person gives up custody, or loses it, they need to understand that the court is not even going to consider giving custody back to them unless there has been a change in the circumstances of the child or residential parent (or the non-parent to whom custody was given).

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In Ohio, when the parents have shared parenting, in order for there to be a change in custody there must be a change of circumstances of the child or either of the parents.

What constitutes a change of circumstances is a complicated matter, a creature of case law, and too big a topic for this blog post (but stay tuned for future posts…).   For purposes of this blog post, assume that you have a change of circumstances.  Yay!  Now what?

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Ohio Revised Code 3109.04 talks about the next thing the court must consider before it decides whether to change custody:

(E)(1)

(a) 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 at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s 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 applies:

(i) 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.

(ii) 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.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

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Next step on the road to custody: Best Interest of the Child.   Although this sounds like a generic phrase, there are actually very specific criteria Ohio courts consider when determining the best interest of the child.  Those criteria are in Ohio Revised Code 3109.04(F).  You can read a simpler version of the criteria by clicking here: Best Interest of the Child.

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At this point, for your custody case to have a chance, you would have to

1. Have a change of circumstance, and it has to be in the circumstances of the appropriate person (s);
2. The court would have to find that it is in the best interest of the child for custody to be changed.

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It would seem like you are in the home stretch, right?  Not yet.  Even if you are ahead of the game so far, before the court can change custody, the court would have to find that:

(i) 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.

(ii) 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.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

The third criteria (advantages of the change outweigh the harm) is by far the criteria courts most often rely upon if they are going to change custody.

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In summary, the steps that must be overcome are:

1.  change of circumstances, in the right person; and

2.  the custody modification is in the best interest of the child; and

3.  One of the following must be true:

(i) 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.

(ii) 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.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

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All of the standards you have read about in this article have well developed case law where courts have decided what does and does not meet the standard, but the cases are constantly changing, moving in different directions.  To find out if the facts of YOUR case would meet the standards necessary to change custody, you are probably going to need to talk to an Ohio Custody Lawyer.  There are simply too many variables to cover this topic in a one size fits all blog post.

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Need some help? We would be happy to schedule a consultation with you.  Please give us a call, and one of our Ohio Child Custody Lawyers will meet with you to discuss your case.

DISCLAIMER – Read it, it’s important!