Grandparents Rights in Ohio

When a single mother passes away in Ohio, paternity, custody and visitation issues may need to be resolved.

August 28, 2014

Virginia Cornwell is a OSBA Certified Family Relations Specialist, and practices exclusively Family Law.

In Ohio, if a single mother dies, issues will arise regarding who is going to raise her children and who may have visitation with the children.

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In this situation, if the father wanted to obtain custody of his children, he would need to establish paternity, if it was not already done. He would need to file his complaint to establish a parent-child relationship (establish paternity), as well as his complaint to allocate parental rights and responsibilities (get custody). Once paternity is established (see our other articles), the court can make orders regarding custody. Given that the mother has passed away, a court may be willing to hear an emergency custody motion.

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Sometimes, in the situation of a single mother, grandparents may have been very active in the child’s life, perhaps more so (in their opinion) than the father. In this situation the grandparents sometimes feel entitled to custody of the child, especially if the mother made her wishes clear on the matter before she passed away. However, Ohio law is clear. The rights of the father in this situation supersede those of the grandparents, unless the grandparents can demonstrate that the father is unfit. For more information about the legal standards for a court to find a parent unfit, click HERE.

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In the case of terminal illness, the mother may know in advance that she is going to pass away. She may have executed a will that says who she wants to be the custodian of her child. This statement in her will is only a statement of her preference, it does not transfer custody of the child upon her death. Despite the mother’s statement in her will, the father’s rights trump those of the grandparents. Unless the father is an unfit parent, if he seeks custody of his children, he will get it.

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This does not mean that grandparents cannot seek visitation. For more information on grandparent visitation, read one or more of our many articles about grandparent rights by clicking the category in the left black column, and then select an article. You may also select the topic in the right hand black column.

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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.

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

DISCLAIMER – Read it, it’s important!

Five Things You Need to Know About Visitation in Ohio by an Ohio Visitation Lawyer

September 26, 2013

Virginia Cornwell is an Ohio Visitation Lawyer and a OSBA Certified Family Relations Specialist.

1. In Ohio, visitation is a privilege, not an obligation. What that means is when a person has a visitation order (now called parenting time), there is no penalty for failing to exercise parenting time. To break it down even more, unless there are specific provisions in the parenting time order mandating that all parenting time be exercised (rare), then a person cannot be in contempt for failing to exercise his or her visitation (parenting time or companionship time). Unfortunately, a person can just skip his or her visitation and not get in trouble from the court.

However, if a person has a pattern of acting in this way, courts are often willing to put a provision in the parenting time order that he or she must call a designated period of time in advance to confirm the he/she will be exercising the visitation (parenting time). Some courts will go so far as to say that if three visitations in a row are missed visitation is terminated until further order of the court. These provisions are rarely included in the initial order. Instead they are usually inserted after the party who is being inconvenienced by the missed visitation brings the issue in front of the court by filing a post-decree motion.

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2. Visitation, it’s not just for parents anymore. The Ohio revised code provides for visitation for persons who are related to a child by “affinity or consanguinity”. In other words, people who are close to a child by nature of their relationship with the child or by their blood ties to the child may petition a court for visitation. See ORC 3109.11, ORC 3109.12 and ORC 3109.051.

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3. Unmarried fathers need to establish paternity before they can even ask for visitation. If a father is already paying court ordered or CSEA ordered child support then paternity has been established. For more information on establishing paternity in Ohio, take a look at this article by an Ohio Paternity Lawyer.

4. Almost every county in Ohio has a suggested visitation schedule for parents. The visitation schedule is for the parent who is NOT the primary caregiver for the child. The visitation is not something the court MUST order, and is not what the court ALWAYS orders, it is just a guideline. Most important, the local rule visitation schedule does not apply until a Judge or Magistrate has ordered it in your case. If you have a visitation order and it is not exactly the same as the local rule, then you have to abide by the terms of the order. The schedule is usually found in the local court rules (possibly in separate courts for married and unmarried parents. Copies of many of Ohio’s local rule visitation schedules can be found on our website, however, it is up to the reader to make sure that they are looking at the MOST CURRENT SCHEDULE before relying on the schedule.

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5. Visitation is modifiable until the child turns 18 years old. Even better, unlike custody, which is difficult (but not impossible) to change, the legal standard for changing visitation is “best interest of the child”. That means that if you can show the court that the schedule you are proposing is best for the child, and the court agrees, the court can change your visitation schedule. To learn more about how the court decides whether a certain schedule is in the best interest of the child, see Ohio Revised Code 3109.051. After January 1, 2014, use this version of 3109.051.

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Change of Circumstances and Grandparent Custody

July 12, 2013

The concept of “change of circumstances” is an important, but complicated concept in family law. When a person wants to change the court’s custody orders, there has to be a change in circumstances.

The first important question is “Whose circumstances have to have changed?” The answer to that depends on whether the order is a shared parenting decree (two residential parents), joint custody (one parent and one non-parent) or whether a person (or persons) have legal custody (aka residential parent or sole custody). In a nutshell, the question is “Shared Parenting, Joint Custody or Sole Custody? ”

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When a person has sole custody of a child (aka “legal custody” or sole residential parent), then the change of circumstances must be a change in the circumstances of the child or legal custodian. It does not matter if the parent who has visitation only, (or has no visitation but simply retains his or her residual parental rights) has changed his or her circumstances, even if his or her circumstances have changed substantially.

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In Alexander v. Alexander, 2013-Ohio-2349, (June 7, 2013), the court of appeals for Champaign County found that the trial court did not abuse it’s discretion when it overruled the Mother’s Motion to Change Allocation of Parental Rights and Responsibilities regarding her three children. The children were in the custody of their paternal grandmother as a result of the agreement of the Mother and Father during their divorce. The Mother had visitation (parenting time).

During the trial on the Mother’s Motion to Reallocate, Mother testified that she had been working for some time to make a more stable home for the children. Among other things, Mother testified that she was employed and had lived in her apartment for a year and a half. The trial court found that pursuant to Ohio Revised Code 3109.04(E)(1)(a), the change of circumstances must have occurred “in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree“. In this case, the changes were in the Mother’s circumstances. In addition, the trial court found that the children have become more stable in the grandparents’ home, and so the “harm of a change in environment for the children outweighs any advantages that may have now arisen to justify a change.”

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Ohio Revised Code 3109.04(E)(1)(a) says that even if there HAS been a change in circumstances of the RIGHT person, the court should not change custody unless the change is in the child’s best interest AND one of the following is 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.

Change of circumstances is complicated. There is no statute that says “such and such is a change of circumstances”. If you would like to consult with one of our Family Law Attorneys in Ohio, please give us a call.

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DISCLAIMER – Read it, it’s important!

State of Ohio Grandparents Rights Attorney Series Part 9: Caretaker Affidavit & Power of Attorney

January 6, 2011

This article is the 9th 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.

GRANDPARENT CARETAKER AFFIDAVIT

Ohio Revised Code 3109.65 provides a solution for a situation where a child is living with the grandparent and the parents of the child cannot be found. This is only a temporary solution, and is not the same thing as legal custody, but it allows the grandparent to do necessary things for the child, such as enrolling the child in school, taking the child to the doctor, etc.

Grandparents Rights Attorney in Ohio Ohio law states:

(A) Except as provided in division (B) of this section, if a child is living with a grandparent who has made reasonable attempts to locate and contact both of the child’s parents, or the child’s guardian or custodian, but has been unable to do so, the grandparent may obtain authority to exercise care, physical custody, and control of the child including authority to enroll the child in school, to discuss with the school district the child’s educational progress, to consent to all school-related matters regarding the child, and to consent to medical, psychological, or dental treatment for the child by executing a caretaker authorization affidavit in accordance with section 3109.67 of the Revised Code.

(B) The grandparent may execute a caretaker authorization affidavit without attempting to locate the following parent:

(1) If paternity has not been established with regard to the child, the child’s father.

(2) If the child is the subject of a custody order, the following parent:

(a) A parent who is prohibited from receiving a notice of relocation in accordance with section 3109.051 of the Revised Code;

(b) A parent whose parental rights have been terminated by order of a juvenile court pursuant to Chapter 2151 of the Revised Code.

Click here for a caretaker affidavit form that you can copy and paste

GRANDPARENT POWER OF ATTORNEY

Ohio law provides that in certain circumstances a parent may give a grandparent a power of attorney to enroll the child in school, care for the child’s medical needs, etc. This is similar to the caretaker affidavit situation described above, except that the parent is present and willing to execute the Power of Attorney.

When a parent seeks to create a power of attorney pursuant to section 3109.52 of the Revised Code, all of the following apply:

(A) The power of attorney shall be executed by both parents if any of the following apply:

(1) The parents are married to each other and are living as husband and wife.

(2) The child is the subject of a shared parenting order issued pursuant to section 3109.04 of the Revised Code.

(3) The child is the subject of a custody order issued pursuant to section 3109.04 of the Revised Code unless one of the following is the case:

(a) The parent who is not the residential parent and legal custodian is prohibited from receiving a notice of relocation in accordance with section3109.051 of the Revised Code.

(b) The parental rights of the parent who is not the residential parent and legal custodian have been terminated by order of a juvenile court pursuant to Chapter 2151. of the Revised Code.

(B) In all other cases, the power of attorney may be executed only by one of the following persons:

(1) The parent who is the residential parent and legal custodian of the child, as determined by court order or as provided in section 3109.042 of the Revised Code;

(2) The parent with whom the child is residing the majority of the school year in cases in which no court has issued an order designating a parent as the residential parent and legal custodian of the child or section 3109.042 of the Revised Code is not applicable.

Click here for a grandparent power of attorney form that you can copy and paste

The other articles in the series can be seen here:

DISCLAIMER – read it!

Ohio Grandparents Rights Part 8

January 6, 2011

This is the 8th installment in a series by Virginia Cornwell, an Ohio Grandparent Rights Attorney and Ohio State Bar Association Certified Family Relations Specialist. Virginia is one of approximate 100 attorneys in Ohio to have received this honor.

GET IT RIGHT! IT MATTERS IN OHIO

A. MOTION TO INTERVENE

Ohio Grandparents Rights Attorney A Motion to Intervene is NOT the same things as a Motion for Visitation. It is not the name of the pleading that attorneys file when grandparents want custody. It does not matter if an attorney or someone at the court house tells you it is the same thing – the LAW says it is not the same thing, and when a grandparent loses their rights because the wrong thing was filed, it is the LAW that the court will point to when they do it. Sometimes when a grandparent files the wrong court papers, the court will try to help grandparents out by pointing out that the wrong request has been filed, but when the court is not so inclined, or believes it would be inappropriate to do so, that Motion to Intervene, sitting in the file all by itself, is going to be the noose that the grandparents’ rights are hung by.

Ohio Grandparents Rights Attorney So what is a Motion to Intervene, and when is it necessary? The are are governed by Ohio Rule of Civil Procedure 24. Civil Rule 24 discusses situations when a person has a RIGHT to intervene as well as situations where there is no RIGHT to intervene, but a court may ALLOW intervention. A review of Civil Rule 24 sets forth the legal analysis required to determine if a grandparent has a right to intervene, or may need the court’s permission to intervene.

In cases where the parties were married, and a grandparent seeks visitation, the right to intervene is given as a statutory right, and therefore grandparents do not have to rely on Civil Rule 24. This statutory right is given in Ohio Revised Code 3109.051. A good discussion about when these filings are necessary and when they are and are not necessary, and a court’s discretion (but not requirement) to convert a Motion to Intervene into a Motion for Visitation is found in Liming v. Damos, 2006-Ohio-2518

B. MOTION TO BE ADDED AS A PARTY

One thing that grandparents can count on, is that in divorce, legal separation or annulment actions, Civil Rule 24 does not apply. Civil Rule 75 provides that Civil Rule 24 does not apply in divorce, legal separation or annulment actions, but instead, Civil Rule 75 does provide a method for being added as a party.

C. MOTION FOR CUSTODY

Grandparents Rights Attorney Ohio This article has already discussed under what situations a grandparent may obtain custody, but in one of those situations, we can’t say it often enough – Grandparents – if your children are involved in a children’s services case, FILE YOUR COURT PAPERS FOR CUSTODY EARLY IN THE CASE, BEFORE THE DISPOSITION AND SERVE IT ON ALL ATTORNEYS AND/OR PARTIES. If the INITIAL case is dismissed and re-filed because it cannot be resolved in 90 days, then you need to file your court papers in each subsequent case as well, subject to the same time limitations.

D. MOTION FOR VISITATION

A motion to intervene cannot be a substitute for either a motion for custody or a motion for visitation. If grandparents want visitation, they have request visitation in their court papers.

The other articles in the series can be seen here:

DISCLAIMER – read it!