Grandparents Rights: Do They Exist in Ohio?
When adult children disagree over who is allowed access to their own children, it is a trying time for extended family members as well. For grandparents, it can be a particularly trying time if one or both of the parents has determined that they are not allowed to see their grandchildren. Questions that Grandparents typically ask: Will I be able to see my grandchildren? Will I be able to continue to see my grandchildren? If I provide financial support, can I ensure that funds are used according to my wishes? Can I obtain custody of my grandchildren if my son/daughter (and other Parent); - Have substance abuse issues? - Fail to care for their children? - Abuse their children? - Are unable to care for their children? If I get Custody or Visitation Rights, how long do they last? The appropriate answer is . . . . It Depends. Whenever possible, utilize non-litigation tools to resolve child access disputes, such as Mediation and Negotiated Settlements 3109.52 Power of attorney for residential grandparent. The parent, guardian, or custodian of a child may create a power of attorney that grants to a grandparent of the child with whom the child is residing any of the parent's, guardian's, or custodian's rights and responsibilities regarding the care, physical custody, and control of the child, including the ability to enroll the child in school, to obtain from the school district educational and behavioral information about the child, to consent to all school-related matters regarding the child, and to consent to medical, psychological, or dental treatment for the child. 3109.62 Military power of attorney. A military power of attorney executed pursuant to section 574(a) of the "National Defense Authorization Act for Fiscal Year 1994," 107 Stat. 1674 (1993), 10 U.S.C. 1044b, that grants a person's rights and responsibilities regarding the care, custody, and control of the person's child, including the ability to enroll the child in school, to obtain from the school district educational and behavioral information about the child, to consent to all school-related matters regarding the child, and to consent to medical, psychological, or dental treatment for the child shall be considered a power of attorney created pursuant to sections 3109.51 to 3109.61 of the Revised Code, as long as the military power of attorney, according to its terms, remains in effect. Statutory Rights to Companionship Hearing Non parents do not have the right to petition for companionship of minor children at any time. Conditions which satisfy one of the Ohio companionship statutes must exist. Children Already at Issue in Court R.C. 3109.051(B)(1) Companionship Rights for parents or other relatives of deceased mother or father. R.C. 3109.11 Mother Unmarried at time of Child's Birth R.C. 3109.12 It is important to note that when children are born while their parents are married, family members do not have access to courts to file for companionship rights until custody/support issues are raised, or until one of the parents becomes deceased. An obvious exception is when the county moves for custody pursuant to R.C. 2151.23(A)(1), in cases where Abuse, Neglect, or Dependency is alleged. Statutory Factors To Award Custody R.C. 3109.04(F)(1) provides that when a trial court is determining the best interest of the children, it shall consider all relevant factors, including, the following: "(a) The wishes of the child's parents regarding his care; "(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; "(c) The child's interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child's best interest; "(d) The child's adjustment to his 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 visitation and companionship rights approved by the court; "(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 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 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 or pleaded guilty to any 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 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 his or her right to visitation 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." Additional Factors Regarding Shared Parenting R.C. 3109.04(F)(2) In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors enumerated in division (F)(1) of this section, the factors enumerated in section 3119.23 of the Revised Code, and all of the following factors: (a) The ability of the parents to cooperate and make decisions jointly, with respect to the children; (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 the child has a guardian ad litem. Fundamental Rights of Parents "Parents who are suitable persons have a paramount right to the custody of their minor children unless the forfeit that right". Clark v. Bayer (1877) Parent's Due Process Rights Are Protected By Both Statutes and Judicial Interpretation of Those Statutes, until they Are Lost or Forfeited. a. Protection of parent's fundamental liberty interest in the custody of their children. b. The trial court must primarily focus on the suitability of that parent. Natural parents have a fundamental liberty interest in the care, custody, and management of their children. c. Neglect, abuse or dependency actions: R.C. 2151.23(A)(1). i. Complaints must specifically state the relief sought. ii. The summons served on the parents must contain explanations regarding custody, potential loss of parental rights and privileges, the possible consequences of an adjudication that the child is an abused, neglected, or dependent child. iii. Specific time limits are enforced regarding parents rights to hearings. iv. The state must make reasonable efforts to prevent the removal of the child from the child's home, to eliminate the continued removal of the child from the child's home, or to make it possible for the child to return safely home. v. The parents of the child have a right to be represented by counsel and the summons shall contain a statement advising that any party is entitled to counsel in the proceedings and that the court will appoint counsel or designate a county public defender or joint county public defender to provide legal representation if the party is indigent. vi. Further, dispositional hearings must be held within statutory time limits. d. Private custody complaints. R.C. 2151.23(A)(2). i. In accordance with sections 3109.04. ii. Fundamental liberty interest in the care, custody, and management of their children. iii. Protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and by Section 16, Article I of the Ohio Constitution. iv. Unless natural parents forfeit their paramount right to custody, it survives. v. In original custody proceedings, absent of finding of unsuitability, natural parents maintain their paramount right.