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

Posted by attorney Todd Kotler

Whether one is creating or modifying a shared parenting plan, one must consider a number of issues. The following uses Ohio's Revised Code as a guide, since this is where this author practices

A court may award shared parenting so long as at least one party asks for it and submits a shared parenting plan at least a week before trial.

It is now mandatory, in both Summit and Stark Counties, that couples who are divorcing or separating and have children must attend a parenting class. The Court will order both parents attendance. One might also be referred to Mediation. Mediation is a dispute resolution process in which a neutral third party (the Mediator) tries to assist you and the other parent in reaching agreements about allocation of parental rights and visitation (see, suggested readings, Getting to Yes and Getting Past No for more on Alternative Dispute Resolution).

In order to change a shared parenting plan (or final custody order, the party asking the court for a change has a burden of demonstrating that some change has occurred to child's circumstances of that of the parent with custody (or residential custody for educational / school enrollment purposes). Then they must prove that it is more likely than not that the change custody is in the best interests of the child including that the negative effects of that change would not outweigh any supposed benefits.

Ohio's best interest of the child test is set out in R.C. 3109.04 (F)(1).

Therein, it lays out many nonexclusive factors a court must consider when making or modifying a shared parenting Order. In material part, it states: . . . the court shall consider all relevant factors, including, but not limited to: (a) The wishes of the child’s parents . . .;

(b) If the court has interviewed the child in chambers . . . the wishes and concerns of the child, as expressed to the court;

(c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;

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

(e) The mental and physical health of all persons involved in the situation;

(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;

(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;

(h) Whether either parent or any member of the household of 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 an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a . . . a sexually oriented offense involving a victim who . . was a member of the family or household . . .; whether . . .any member of the household of either parent previously has been convicted of or pleaded guilty to [domestic violence]; 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;

(i) 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;

(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.

(2) In determining . . . the best interest of the children, the court shall consider all relevant factors, including, but not limited to, . . . all of the following factors: (a) The ability of the parents to cooperate and make decisions jointly,;

(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;

(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;

(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;

(e) The recommendation of the guardian ad litem of the child, [if one was appointed].

No one of these factors is completely determinative. One should look these over and ask if, objectively, enough of these are in their favor. 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 provided by the author

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.

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