How can an unwed father establish parental rights?

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Generally, unwed fathers may establish that they are the father by filing an acknowledgment of paternity, pursuant to section 3111.23 (http://codes.ohio.gov/orc/3111.23) of the Ohio Revised Code (hereinafter R.C.). If one has not been filed and the mother has made parenting time difficult, a father may file an action for paternity per RC§3109.12.

Under the Uniform Child Custody Jurisdiction Enforcement Act (a version of which every state has enacted), the proper state to file the paternity suit is the "home state" of the child -- which is the state in which the child has resided with a parent or a person acting as a parent for the six months immediately before the filing of suit. If your child hasn't lived in one state for the last six months, you'll need to consult with an attorney that can help you determine jurisdiction. Depending on the circumstances, one can file for emergency jurisdiction, however this practically requires some existential crisis for the child. (I.e. the child is in danger of death or serious injury without court intervention).

The court may grant the parenting time rights or companionship or visitation rights requested if it determines that the granting of the parenting time, companionship or visitation rights is in the best interest of the child. In determining whether to grant such rights with respect to any child, the court shall consider all relevant factors per RC § 3109.051 (http://codes.ohio.gov/orc/3109.051)(D). Those factors are:

(1) The prior interaction and interrelationships of the child with the child’s parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling, or relative of the child;

(2) The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person’s residence and the distance between that person’s residence and the child’s residence;

(3) The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;

(4) The age of the child;

(5) The child’s adjustment to home, school, and community;

(6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;

(7) The health and safety of the child;

(8) The amount of time that will be available for the child to spend with siblings;

(9) The mental and physical health of all parties;

(10) 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;

(11) In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;

(12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;

(13) 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;

(14) Whether either parent has established a residence or is planning to establish a residence outside this state;

(15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child’s parents, as expressed by them to the court;

(16) Any other factor in the best interest of the child.

In pursuit of filing a motion for parenting time one may request a Guardian ad Litem (GAL) The GAL makes a written report to the court after conducting an investigation. They often are very persuasive upon the court but the court still makes up its own mind. The GAL can be cross examined on their report as well. One asking for a GAL must remember that the parties (sometimes only one) pays for the GAL's time and must make a deposit for this time with the clerk of courts.

Finally, while Ohio law is gender neutral in the assignment of custody to one parent or another, women do typically have an advantage with respect to these cases. The reason is factor (1), above; “The prior interaction and interrelationships of the child with the child’s parents . . .". Simply put, absent extraordinary factors, the child is with the mother from birth, and often the mother provides the primary care for the child from that moment forward. In instances where this isn't the case, an unwed father can provide the strongest case.

Things that will assist an unwed father in pursuing a custody case, include:

1) Pictures or videos of the dad / friends / family and child;

2) Documentation of doctors / dentist visits, school conferences, activities, attended.

3) A genuine knowledge of the child’s likes, dislikes, friends and frenimies (kids he or she dislikes).

4) A journal of what they do together / disputes with mother

5) A genuine insight into the parenting strength and weaknesses of both parents (all parents have some of each and acknowledgement of this adds credibility to a presentation)

Additionally a party may also request the appointment of a Guardian Ad Litem (GAL), but one must expect to bear part (or all) of the cost for the Guardian (approximately $700.00 deposit to start). The Guardian Ad Litem acts as an advocate for the child/ren's interest(s), and will meet with the child/ren, parents, and perhaps other parties who have information relevant to the child/ren's welfare. Understand that one a GAL is involved with a case, they are likely to be the key decision maker. The court relies very heavily on the opinion of the GAL and challenging the GAL's recommendation while possible is very difficult.

Additional Resources

The effect of specific factual nuances on individual courts can vary widely. This author recommends that one consult a local attorney. RECOMMENDED READING: The Divorce Handbook, by James Friedman (particular attention should be paid to checklists, worksheets and pages 113-121 on being a witness). Mom's House, Dad's House, by Dr. Isolina Ricci on Shared Parenting. Getting to Yes, by Roger Fisher and William Ury (The original, often quoted, resource on alternative dispute resolution). Getting Past No, By William Ury (The companion resource to Getting to Yes). Merging Families: A Step-By-Step Guide for Blended Families by Bobbie Reed Summit County Child Support Enforcement Agency P.O. Box 80598, 175 S. Main Street Akron, Ohio 44308-0598 ( 330) 643-2765 Battered Women's Shelter Help-line: (330) 371-1111 Victims Assistance Program (330) 376-0400 Summit County Children Services 264 S. Arlington St. Akron, Ohio 44306 (330) 379-1880 (general information) Stark County JOB & FAMILY SERVICES CSEA INFORMATION & INQUIRY FAX 116 Cleveland Ave. N. Canton, Ohio 44702 (330)-451-8042 Stark County JFS Social Services 300 Market Ave. N. Canton, Ohio 44702 (330)-451-8893 This guide and this author's other guides, are written with appreciation for the attorneys for whom I clerked or later faced as opposing counsel. I have borrowed liberally from their forms, letters and pleading styles. All the credit for insight and sagacity belongs to them, any fault belongs to me. It is with appreciation that I thank; Sharon Berg, Charles Grisi, Susan Lax, Hon. Mary Rowlands, Hon. Thomas A. Teodosio, Barry Ward, Dean Wagner, and Bill Whitaker. Attorney, Todd Kotler may be contacted either at 330-777-0065 or by e-mail at TBKotler@SBCGlobal.net.

The Vital Importance of Written Documentation - Adopted from Dorene J. Philpot's 2002 article

What will a court consider if either I or my ex asks for shared parenting or custody?

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