Child Custody – Page 5

Contempt of Court in Ohio Custody, Shared Parenting and Visitation Cases: Part 4

December 27, 2010

This is the 4th installment in a series about enforcing visitation with Contempt written by Virginia Cornwell. Virginia is a A Franklin County Ohio Custody Lawyer and Ohio State Bar Association Certified Family Relations Specialist. Virginia is one of approximate 100 attorneys in Ohio to have received this honor.

The other articles in the contempt series can be seen below:

DEFENSES TO CONTEMPT THAT ARE NOT LIKELY TO WORK IN OHIO

In the course of this series, we’ve already discussed one defense to contempt that rarely works in Ohio, that a motion to modify the order was pending while a person continued to violate the order. Ohio Revised Code 2705.031 provides that a court can find a person in contempt, and punish them accordingly, even if the court later decides to change the order. (See ORC 2705.05 . Click here to see our post on penalties.

In other cases, the parties, and even the attorneys may mistakenly believe that if they take the positions that they were following the advice of their attorney, they cannot or will not be held in contempt. This is not true. It is no defense to a finding of contempt that a party acted in good faith or upon the advice of counsel. See Polk v. Polk, Rini v. Dyer, 2008-Ohio-4172, Miller v. Miller, State Ex Rel Adkins v. Sobb, Townsend v. Townsend, Pugh v. Pugh, 15 Ohio St. 3d 136 – Ohio: Supreme Court 198 etc.

Other excuses which don’t hold a lot of water in Ohio are excuses which put the wishes of the child above the order of the court, convenient ( and non-existent illnesses), convenient work and car problems that only seem to occur at the time for exchanges, etc.

Some persons who do not obey court orders mistakenly believe that they cannot be sentenced to jail time in a civil contempt action. To put it another way, they believe that the imposition of jail time makes the action a criminal contempt action, as opposed to a civil contempt action, and that he or she now has all the rights of a criminal defendant. This is not the case. In a civil contempt case, the purpose of the punishment is to coerce the contemnor to obey a judicial order for the benefit of a third party. See Polk v. Polk, Carroll v. Detty. In addition, civil contempt sanctions are conditional in nature, since the contemnor (person in contempt) is said to carry the keys to his or her prison in their pocket – because the court gives them a chance to purge their contempt (obey the court order) before they go to jail. State v. Kilbane, 61 Ohio St. 2d 201. NOTE: Purging contempt will not save you from fines, attorney fees, and a possible change of custody, just from prison.

Another legal argument that fails is the argument that jail time for contempt violates the constitutional prohibition against imprisonment for debts. WRONG. See Pugh v. Pugh, 15 Ohio St. 3d 136 – Ohio: Supreme Court 198 and Harris v. Harris (1979), 58 Ohio St. 2d 303 [12 O.O.3d 291].

One thing that it is important to remember is that if the other parent fails to transport the child, you can seek to hold them in contempt for failing to do so, but you need to go ahead and do the driving and/ or make the transportation arrangements yourself, unless it is impossible (not inconvenient) to do so on in the time frame remaining for the visitation. Try not to worry about the unfairness of having to do all the driving yourself – courts have remedies available for parents who WILL NOT (as opposed to can not) exchange their child, such as a change in custody.

DISCLAIMER

Contempt of Court in Ohio Custody, Shared Parenting and Visitation Cases: Part 2

December 24, 2010

Contempt Enforce Court Order Columbus Ohio Franklin County Attorney

PENALTIES FOR CONTEMPT

When a Judge or Magistrate holds a person in contempt of court for failure to comply with or interference with a parenting time or visitation order, there are numerous penalties that can be imposed, such as jail time, fines, awards of court costs and /or attorney fees to the aggrieved party, and an order for make-up parenting time.

How to Get Custody in Ohio In addition, ORC 3109.04 and ORC 3109.051 specifically state that denial of time and willingness to obey the orders are relevant factors the Judge or Magistrate must consider when determining what is in the best interest of the child. Continuous and willful denial of the ordered time is a factor which may be found to be a change of circumstances, and the Judge may find that it is in the best interest of the child to change the residential parent or school placement parent.

CALL NOW (614) 225-9316

FINES

Pursuant to Ohio Revised Code 2705.05, the court can impose the following fines:

1st Offense: Up to $250
2nd Offense: Up to $500
3rd Offense: Up to $1,000

JAIL TIME

In addition to all the other penalties, if a person is found in violation of or to have interfered with parenting time or visitation, pursuant to Ohio Revised Code 2705.05, the Judge can sentence the person who is in contempt of court to jail time as follows:

1st Offense: Up to 30 days in jail
2nd Offense: Up to 60 days in jail
3rd Offense: Up to 90 days in jail

CALL NOW (614) 225-9316

COURT COSTS

If a court finds that a person is in contempt of a custody or visitation order, Ohio Revised Code 3109.051(K) REQUIRES the Judge or Magistrate to charge all court costs arising out of the contempt proceeding against the person in contempt.

ATTORNEY FEES

If a court finds that a person is in contempt of the orders regarding time with the child, Ohio Revised Code 3109.051(K) REQUIRES the Judge or Magistrate to order the person in contempt to pay “any reasonable attorney’s fees of any adverse party, as determined by the court, that arose in relation to the act of contempt”.

CALL NOW (614) 225-9316

MAKE-UP TIME

Pursuant to a court has the authority to, but is not required to, order make-up time for the parenting time missed as a result of the acts of contempt. Generally, if holiday parenting time was missed, then similar or identical holiday parenting time is what the court will require to be made up. For example, if you plan to keep the child for Christmas this year, in violation of the Judge or Magistrate’s order, then chances are good you will not see your child on Christmas next year, and possibly for the next two years.

CHANGING THE CUSTODY OR VISITATION ORDER

If a person is found to be in contempt of an existing order, the Judge or Magistrate may find the parent’s willful disregard of the orders to be a change in circumstance, and may find that it is in the best interest of the child to change which parent is the residential parent or school placement parent. The Judge or Magistrate does not do this on it’s own, but if the other parent filed a motion to change custody, or school placement parent along with his or her Motion for Contempt, the court may find that the benefit of the change outweighs the harm and give custody, to the other parent.

CALL NOW (614) 225-9316

Ohio Revised Code 3109.04 requires the Judge or Magistrate to consider, among other factors, the following matters when determining what is in the best interest of the child:

The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;

Ohio Revised Code 3109.051 requires the court to consider, among other factors, the following matters when determining what is in the best interest of the child:

Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court.

CALL NOW (614) 225-9316

Contempt Enforce Court Orders Ohio Visitation Support Custody Jail

This is the 2nd installment in a series about enforcing visitation with Contempt written by Virginia Cornwell. Virginia is a Franklin CountyOhio Custody Lawyer and Ohio State Bar Association Certified Family Relations Specialist. Virginia is one of approximate 100 attorneys in Ohio to have received this honor.

The other articles in the contempt series can be seen below:

The information provided in this web site is applicable in the state of Ohio and is provided as a public service. While Virginia Cornwell is a Columbus Ohio Contempt Lawyerand a Columbus Ohio ContemptAttorney, viewing the information in this web site does not constitute an attorney-client communication, and acting upon information obtained from this web site does not create an attorney-client relationship. If you would like to discuss the application of the law to your fact situation, you can make an appointment with the attorney or law firm of your choice.

Columbus Ohio Family Law Attorney on Moving and Relocation Part 5: Jurisdiction

December 23, 2010

A Columbus Ohio Family Law Attorney article on Moving or Relocation.

This article is the fifth in a series about moving and how it relates to Ohio child custody, shared parenting and visitation. To read the first four articles in this series, see

Part 1, Part 2, Part 3, Part 4

Sometimes, parents want to move because they think that in a different location, with a different judge, they will get a different decision with regard to their children. This happened so often, and for so many years, that most states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA, as law. In Ohio, it is adopted as Ohio Revised Code Chapter 3127. Essentially, the UCCJEA says that once a state that rightfully had jurisdiction under the UCCJEA makes a custody order, that state retains jurisdiction until all of the parties (mother, father and child, or who ever had rights pursuant to the child custody order) has left the State which issued the order.

While the issuing state has the option to decline to exercise its right to maintain jurisdiction, to do so defies the provisions that the UCCJEA specifically requires. It does not happen very often, and for good reason. The UCCJEA is a treatise that is adopted in most states as law, in order that state law can comply with the federal law on the subject, which is the Parental Kidnapping Prevention Act, or PKPA. To learn more about the UCCJEA and the PKPA, see these articles or consult with a Columbus Ohio Family Law Attorney:

https://cornwell-law.com/06/interstate-family-law-jurisdiction-attorney-series-part-i/

https://cornwell-law.com/10/10-things-you-need-to-know-about-interstate-custody-jurisdiction/

Ohio Revised Code Chapter 3127 allows a person who moves to Ohio to register a decree from another state for purposes of enforcement. That is a very different thing that granting an Ohio court jurisdiction to MODIFY the order.

DISCLAIMER

Moving or Relocation in Ohio Custody, Shared Parenting and Visitation Cases, Part 4

December 22, 2010

A Columbus Ohio Relocation Attorney article on Moving or Relocation.

This article is the fourth in a series about moving and how it relates to Ohio child custody, shared parenting and visitation. To read the other articles in this series, see

Part 1, Part 2, Part 3, Part 5

For purposes of this article, assume that moving parent and the non-moving parent have gone through the stages in the first three articles on this topic, and one or both parents have decided to go to court to seek a change of custody, shared parenting, or the school placement parent in a shared parenting plan. Ohio Revised Code 3109.04 requires a court find that there has been a change in circumstances before making this modification. In addition, the change cannot be a slight change; it must be a change of substance. See Davis v. Flickinger.

Pursuant to ORC 3109.04(E) the court must find 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 designation of 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 Ohio Supreme Court, in MASTERS V. MASTERS 69 Ohio St.3d 83, 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. Many cases since have found that a move, in and of itself, does not constitute a change of circumstances. However, there are also many cases that have found circumstances attendant to a move which, combined with the move itself, may constitute a change of circumstances.

DISCLAIMER

Moves and Relocation: How does it affect your Ohio custody, parenting time or shared parenting? Part 3

December 21, 2010

A Columbus Ohio Family Law Lawyer article on Moving or Relocation.

This article is the third in a series about moving and how it relates to Ohio child custody, shared parenting and visitation. To read the other articles in this series, see

Part 1, Part 2, Part 4, Part 5

In situations where court ordered parenting time has already been established, and the residential parent or the school placement parent intends to move, the first issue that must be addressed is notice to the other parent. See https://cornwell-law.com/12/a-columbus-ohio-family-law-attorney-on-moving-and-relocation-part-1 for information regarding notice of a move.

Once issues of notice have been properly taken care of, the next question becomes – what does this mean for your parenting order? Are changes needed? If so, what are they?

If the parents can agree regarding the appropriate changes to their parenting plan, if any, then the parties can submit appropriate paperwork to the Court to modify their parenting orders. But what if the parties cannot agree? If parties cannot reach an agreement on their own, if they wish, they may request the help of a mediator to reach agreement. In addition, the Local Rules of your court or the terms of your parenting order or shared parenting plan may require you to attempt mediation before filing a motion with the Court.

If the move is imminent, and you believe time is of the essence to make sure that your Child is not permanently removed from the State, you may need to seek an Ex Parte Temporary Restraining Order.

If the non-moving parent is unable to reach agreement with the moving parent regarding moving the Child and/or the revised terms that should be in the parenting order, then the non-moving parent is left with two choices:

Do nothing and hope that the other party will allow you reasonable access to your Child from the new location. If you do this, your court ordered access remains the same as your prior order, although it may now be difficult and expensive to follow it. Or,
File a motion with the Court to change your custody, shared parenting, school placement parent, or parenting time. In addition, you may wish to file a motion to modify child support to accommodate the travel expenses that are now involved in visitation.

Before an Ohio court can modify custody, terminate shared parenting, or change the school placement parent, Ohio Revised Code 3109.04 requires that the Court must first find there has been a change in circumstances. See Supreme Court cases Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589 and Davis v. Flickinger.

DISCLAIMER