Moving and Relocation

Filing Relocation Notice Too Often Overlooked

October 1, 2014

In Ohio, if there has been an order allocating parental rights and giving visitation, or parenting time, to one parent, then buried within that order is statutory language which requires the residential parent to file a relocation notice with the court if he or she moves. If there is one residential parent (sole custody), then the statutory language may apply only to this parent, but the smart move is for EITHER parent to file a relocation notice with the court if they move. In addition, even though the statutory language only mentions the residential parent, many, if not most parenting plans require BOTH parents to notify the court if they move. This means that you may be court ordered to give notice, even if not required to file it with the court, but what better way to prove that you did it?

Parents who have shared parenting are both residential parents, so that means they BOTH have to notify the court when they move. If for some strange reason you have one of the few plans that only requires you to notify the court of your new address and not the other party, it is still good practice to send a copy of your relocation notice to the other party. If one parent does not know where they other lives, it causes anxiety and a tendency to want to withhold parenting time. People may employ drastic measures like calling the police. All of the drama can be avoided if you just tell the other parent your new address at the same time you tell the court.

So how do you tell the court? IN WRITING. Preferably on whatever local form the court uses, but if the court has no specific form, a letter might be acceptable. The letter should state that a copy is being sent to the other parent.

Franklin County has the following forms available to notify the court of a change in a parent’s address:

DOMESTIC COURT FORM

JUVENILE COURT FORM

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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 Family Law Attorneys will meet with you to discuss your case.

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

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Unmarried Fathers Beware: Seek Out Your Rights or the Mother May LEGALLY Move Without Telling You

August 18, 2014

FATHERS LAWYER Sometimes unmarried fathers are hesitant to go to court to seek their rights for a variety of reasons:

They do not want to antagonize the mother.
They are afraid of how much child support they will have to pay if they begin legal proceedings.
They do not want to begin their co-parenting relationship with the mother by taking her to court.
They are not sure if they have spent enough time trying to work out an agreement with the mother yet.

These are all valid concerns. However, the risk that the Father who waits takes is that they mother will move. Until an unmarried father has established his parental rights of parenting time, the mother has no duty to tell him when she is going to move and where she is going. Even when he does have parenting time, unless the court orders it (father needs to ask for it), mother might simply have a duty to let the COURT know where she is going, not the father.

If a father goes to court to seek his parental rights, he can ask for a restraining order while the case is pending, keeping the mother from removing the child from the jurisdiction of the court. If he does not do this, and the mother moves, the father may have a tough time serving her with his complaint, and if he cannot serve her, he cannot get relief from the court.

Therefore, every father has to balance the concerns above with the concern that the mother might move and take the child out of his reach forever. This is something that has to be decided on a case by case basis, there is no hard and fast rule that a father has to rush to court, but he should be aware of the risk.

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

DISCLAIMER – Read it, it’s important!

What is a “Change of Circumstances” in Ohio Custody Cases?

July 1, 2013

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist and a Columbus Ohio Family Lawyer. This article is the first in a series of articles about what is a change of circumstances according to Ohio custody, visitation and shared parenting law.

Ohio Revised Code 3109.04 (E)(1)(a) requires:

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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Ohio law has several hurdles for a parent that wants to change custody, and the burden of proof is on the parent who wants the change. The first step of these complicated requirements is generally that there must have been a change or circumstances based on facts that did not exist at the time of last custody order. For the most part, the Ohio Revised Code is silent about what is or is not a “change of circumstances”, and the answer is found in case law. Sounds simple, right? Nope. Case law varies among the appellate districts. The best you can do is look at the case law, and which trends last over time. The bottom line is that unless a court is directly violating a case precedent that has authority over that court, the court has a LOT of latitude to decide whether or not there has been a change in circumstances.

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Military Parents and Change of Circumstances

One exception to this is found in Ohio Revised Code 3109.051 (click here on or after 1/1/14) which says: The court shall not find past, present, or possible future active military service in the uniformed services to constitute a change in circumstances justifying modification of a prior decree. For more information about Ohio active military members being deployed and custody, click this link to read our article about this subject.

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So What is a Change of Circumstances?

CHANGE HOPE What about non-military parents? For those parents, what constitutes a change of circumstances is mostly a matter of case law. There are a few issues that have gone to the supreme court of ohio, and those rulings apply to the whole state, but there are other issues that vary from one appellate district to another.

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Moving and Change of Circumstances

In Masters v. Masters, 69 Ohio St.3d 83 the Supreme Court of Ohio found that a trial court abuses its discretion when it modifies custody based solely upon evidence that the residential parent intends to leave the State of Ohio with the child. Supreme Court said it was unconscionable for a trial court to treat a parent’s desire to leave the state as a substantial change in circumstances. However, in that case, the mother had not actually left the state, had only expressed an intention to leave. A very different result may occur if the parent has already left. When a parent moves, a child changes schools, loses peers, changes doctors and sometimes loses frequent access to relatives. These are factors a court would consider. Courts are not big fans of parents moving the child far away from the other parent. Put simply – it’s complicated.

For more information, see our series of articles on Change of Circumstances, or give our office a call for a consultation.

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Military Custody Issues: Deployment and Active Service in Ohio

October 8, 2012

When military servicemembers (sometimes also referred to as service members) are called to active duty or are deployed it can wreak havoc on their families, especially families with children. Even though the servicemember may already have a Family Care Plan in place, service members who are divorced or unmarried parents may be worried that the other parent is going to try to take advantage of the situation to gain custody of their children. However, Ohio has special protections for members of the uniformed services who are called to active duty. Uniformed Services means according to Ohio Revised Code 3109.04: the United States armed forces, the army national guard, and the air national guard or any reserve component thereof, or the commissioned corps of the United States public health service.

ACTIVE MILITARY SERVICE IS NOT A CHANGE OF CIRCUMSTANCES IN OHIO!

The good news in Ohio is that state law prohibits a court from changing custody based solely upon military service. Specifically, Ohio Revised Code 3109.04(I)(2) says: The court shall not find past, present, or possible future active military service in the uniformed services to constitute a change in circumstances justifying modification of a prior decree. This may not provide as much comfort to a parent in this situation, because they may believe (rightly or wrongly) that when a court wants to modify custody, the court finds a way to do it. In other words, what if the court modifies custody anyway, but doesn’t admit that the deployment is the reason for changing custody? In the very next sentence, Ohio Revised Code 3109.04(I)(2) provides additional protection to the servicemember. It says: The court shall make specific written findings of fact to support any modification under this division. What does this mean? It means that the court cannot just change custody, say that it is not based on the military service, but not give the reason for changing custody. The court MUST write down the facts upon which the court chose to change custody. These facts allow the military member to appeal if there was no legitimate basis for the court to change custody.

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Skeptics may say well, that’s great that the law allows me to fight for my kids’ rights, but how am I going to do that from Afghanistan (or Korea, Japan or wherever you are being deployed to)? Of course there is always the good old Servicemembers Civil Relief Act, but when it comes to kids, stalling the proceedings until you can appear is not always good enough, especially if the non-custodial parent has obtained emergency custody. Ohio Revised Code 3109.04(I) provides opportunities to the active duty or deployed military member that Ohio courts will rarely offer to anyone else. If the court will put a stay on the proceedings pursuant to the SCRA until the member can attend, then, at least while the member is deployed the problem is solved. The member may have to reapply for the stay several times, but the children will stay put and be cared for under the member’s Family Care Plan. However, if the non-custodial parent is seeking or has obtained any kind of temporary order or emergency custody order, the court MUST, pursuant to Ohio Revised Code 3109.04(I), allow the service member to “participate in the proceeding and present evidence by electronic means, including communication by telephone, video, or internet to the extent permitted by the rules of the supreme court of Ohio.”

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ACTIVE MILITARY SERVICE
So who qualifies for the protections Ohio offers under this law? ORC 3109.04 defines “Active military service” as service by a member of the uniformed services in compliance with military orders to report for combat operations, contingency operations, peacekeeping operations, a remote tour of duty, or other active service for which the member is required to report unaccompanied by any family member, including any period of illness, recovery from injury, leave, or other lawful absence during that operation, duty, or service.

NOTICE TO THE OTHER PARENT IS REQUIRED
If you are the parent of a child who is subject to an Ohio order “allocating parental rights and responsibilities” (custody, shared parenting visitation order or child support), or you are a party to a case to allocate parental rights and responsiblities, and you receive a military service order calling you to active duty, you must notify the other parent within three days of receiving the order. See Ohio Revised Code 3109.04(I)(1). You must also give written notice to the court, child support enforcement agency, and the other parent of the date of termination of the your active military service not later than 30 days after the date on which your service ends.

Once notice is received, EITHER parent can apply to the court for a hearing to expedite a custody change or modification proceeding so that the court can issue an order before the parent’s active military service begins. The application must state the date upon which the active duty service begins. The court MUST schedule and hold a hearing not later than thirty days after receipt of the application, except that the court shall give the case calendar priority and handle the case expeditiously if exigent (unusual, emergency) circumstances exist in the case.

Although the court cannot change custody based solely upon military service, according to Ohio Revised Code 3109.04(I)(1) Ohio courts can make a temporary order “for the duration of the parent’s active military service”. A temporary order shall specify whether the parent’s active military service is the basis of the order and shall state that the temporary order ends and the old order resumes within 10 days after receipt of notice of the end of active military service, unless the other parent demonstrates that resumption of the prior order is not in the child’s best interest. However, even in those circumstances, the court still cannot change custody based solely on military service. Remember, in Ohio, the court must have a change of circumstances to change custody. Instead, the court would put on a new order which the court believes is in the child’s best interest, but does not change custody.

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Ohio Unmarried and Never Married Parent FAQs

October 26, 2011

COLUMBUS OHIO CUSTODY ATTORNEYS PARENTS NOT MARRIED In Columbus and throughout Ohio, custody attorneys are often asked about the rights of parents who are not married to the mother or father of their child. We have answered a lot of the basic questions in other articles on our web site. This article will focus on some of the questions frequently asked in the comments from our readers.

Q. Are Ohio Fathers of infants who are not married to the mother allowed to have overnight visits with the child?

A. It depends on the whether the Father has a court order for visitation, the Ohio County that issued the visitation order, the county that the case is in, and the particular Judge or Magistrate that issued the order. If the Father has no court ordered time with his child, even if he pays child support, he has no legal right to visitation with his child.

Columbus Ohio Custody Attorney Most Ohio counties have a local visitation schedule. This schedule is the FLOOR, not the CEILING of the amount of time a fit parent will have with their child. If your particular county has a separate schedule for infants, then your county’s model schedule should be used as a guideline for what to expect. In Franklin County (Columbus), Fathers who are not married to their child’s mother typically start overnights very quickly, usually on a schedule similar to Franklin County Local Rule 27 (aka Franklin County Local Rule 22). Other counties, such as Pickaway County, do not have overnights in their parenting schedule until the child is at least 12 months old.

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Columbus Ohio Child Custody Attorney This is where the issue of your particular Judge or Magistrate comes into the “it depends” answer. In Columbus, and throughout Ohio, a Judge or Magistrate can order ANY schedule that he or she believes is in the best interest of the child. They are not required to order a schedule the same as, or even similar to, the model visitation schedule for the county. The more modern trend is that children, especially young children, should have frequent time spent with each parent in order to properly bond with each parent. In other words, the modern trends is that even if a mother is still breastfeeding, overnights are not off the table at any age. Remember, breast milk can be pumped, and babies have been drinking formula for a long time. So the issue is, what can you expect from your Judge or Magistrate? An experienced Ohio Custody Attorney can help you understand what your particular Judge or Magistrate’s recent trends seem to be. Of course, this does not mean that your attorney can tell you with certainty what to expect. Instead, an experienced custody attorney can apply his or her experience with your particular Magistrate to the facts of your situation and give you a general idea regarding what the possibilities are and what you might expect.

Columbus Ohio Agree Residential Parent Change Attorney Q. If the parents of the child agree to shared parenting (aka joint custody, shared custody, 50/50 parenting) do they need to hire an attorney to write up the paperwork?

There are very few situations where you are required to have an attorney. You are almost always allowed to represent yourself. Yes, you can prepare your own paperwork. If you do decide to hire an attorney, the attorney can only represent EITHER the mother or the father, but NOT BOTH. This is a conflict of interest, even if the parties agree to shared parenting. You CAN, however, prepare your own paperwork. A shared parenting plan is not an especially easy thing to draft on your own, but if you want to (or need to) represent yourself, the website for the Clerk of Court may offer some helpful forms. If you don’t find what you are looking for on your clerk’s website, try another Ohio county clerk of court. You can also find some sample forms online at the Franklin County Law Library (Columbus). The free forms page of our website has many helpful links for you if you need to draft your own paperwork. Another option would be for one of the parties to hire an attorney to draft the paperwork, and the other party can take their paperwork to their own attorney to be reviewed. If the paperwork is okay, the parties may want to present their own paperwork to the court. This is called “unbundled services” and it is perfectly fine, as long as your fee agreement with your attorney is very clear about the scope of the services that are to be provided. Many firms offer flat fees for the preparation of paperwork where the parties have agreed on all matters in advance.

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Q. In Ohio, can the mother of a child from an unmarried relationship take the child and leave the state if the father does not have any court ordered visitation?

YES. In fact, even if an Ohio father DOES have court ordered visitation, this does not automatically stop the mother from moving out of state with the child. It does, however require her to file a relocation notice with the court saying where she has moved. The Father can then file a motion to reallocate parental rights and responsibilities or to modify parenting time. In the meantime, until the court makes a new order, the mother is court ordered to make the child available on the same schedule in her court order. What’s the lesson here? If you learn that your child is going to be moved out of state, DO SOMETHING, FAST! If you don’t know what to do, go meet with an attorney.

Columbus Ohio Attorney Stop Child from Being Moved Out of State What about Fathers who have shared parenting (aka joint custody or shared custody)? Can the mother still just take the child and move out of the state? That depends on the language of your shared parenting plan. Hopefully, you had the help of an experienced child custody attorney to help you draft the plan, and the plan has provisions regarding moving and what changes if either of the parents move out of the city, out of the county or out of the state (it varies from case to case). If your plan does not saying anything about moving, all may not be lost. Check your local rules of court for the county that issued the plan. Your local rules may have a provision regarding moving that requires things such as a certain amount of notice before moving the child, filing a motion and having a hearing first, or (best case scenario, but rare), a provision that says if the school placement parent moves, the other parent becomes the school placement parent.

In Ohio, if an unmarried father has no court papers giving him parental rights, and the mother of his child wants to move, she can move. She is not even required to tell the father where she has moved. Fathers in Ohio have no rights to time with their children or custody of their child until they go to court and get them. Fathers often put off going to court because they are afraid that their child support will be raised beyond what they can afford. An attorney can calculate what the child support guidelines amount would be based on your current income, so you at least know what to expect. If a father who is not married files a complaint to establish paternity and/or parental rights, many Ohio counties, including Franklin County, will issue a temporary restraining order prohibiting the mother from permanently removing the child from the court’s jurisdiction until the father’s custody, visitation or shared parenting motion can be heard and ruled upon by the court.

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DISCLAIMER – Read it, it’s important!