Beyond any shadow of a doubt, the most bitterly contested and expensive cases involve child custody cases in the context of a divorce or between unmarried parents and done in the Juvenile Court.
Child custody cases are the most destructive litigation. Be sure that the child(ren) would be significantly better off with you than the other parent before you get involved in a custody fight. Custody cases are expensive in emotional costs, in legal costs and in monetary costs.
There are generally two (2) types of allocation of parental rights and responsibilities.
The first is to allocate one parent as having sole custody of the minor child(ren), the other is a more preferred method which is referred to as shared parenting.
Shared Parenting is not a function of time or money. The difference between these two (2) arrangements is the final decision making authority vested with one or both parties for the child(ren). The concept of shared parenting does not impact the parenting time schedule or the amount of child support that is paid from one party to the other. The biggest misconception about shared parenting is that people believe that it automatically provides for equal time and no payment of child support from one party to the other despite their incomes. Nothing could be further from the truth. In most situations there will be an order of child support from one party to the other. That issue is more fully addressed under the section referred to as Child Support located on this website.
The most loaded question that people ask is how do you start a child custody case?
If you are not married the mother is deemed to be the sole, legal custodian of the minor child until the father establishes paternity and then petitions the court to get an allocation of parental rights and responsibilities. The reasoning behind this is because it is a lot easier to determine who the mother of the child is at the time of the birth than it is the father.
A divorce is different in that both parents are deemed to be the parents and stand on equal footing. This often leads to the parties being stuck in a “wild west” situation at the commencement of a divorce case. The court will not allocate custody between two (2) married people. They will only do so once a divorce action is filed. The court can issue temporary orders regarding the allocation of parental rights and responsibilities, but generally the court at the end of the case will make the final determination as to the allocation of parental rights; that would either be granting one party sole custody, or granting the parties shared parenting as stated above.
Child custody cases are the most destructive types of litigation there is.
You are taking a family unit and not only breaking it into pieces, but you are having the parties fight about who has possession over another human being. Again, you must be absolutely sure that the children(ren) are significantly better with you than the other party prior to filing for custody due to the detrimental affects from it. The court will deal with custody in any number of ways depending on which county that your case is going to proceed in. In some instances such as the Cuyahoga County Juvenile Court, a regular custody complaint filed with the court will automatically send the parties to mediation to see if they can resolve their differences prior to going before a magistrate for a hearing. This is not true in every county. However, most courts will try and first figure out how far apart the parties are in terms of agreeing to custody before taking further action.. These next steps can include having in-court services to help the court make assessments as to custody and visitation. In other situations a court will seek the appointment of a psychologist to perform a psychological and custody recommendation. In some circumstances, the parties will hire a private attorney with experience in domestic relations cases to help weigh in and make a recommendation as to the allocation of parental rights and responsibilities of the minor child(ren). Attorney Stephen E.S. Daray has been a litigant on behalf of thousands of individuals in divorce cases, and he has also been appointed as a Guardian ad Litem in many cases in domestic relations courts in both Cuyahoga County and Lorain County on a regular basis.
When a court finally considers the ultimate resolution of the issue of custody, it is going to have to consider factors contained in Ohio Revised Code Section 3109.04. In determining the best interest of a child the court shall, but is not limited to considering the following:
- The wishes of the child’s parents regarding the child’s care.
- The wishes of the child(ren).
- 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.
- The child’s adjustment to the child’s home, school, and community.
- The mental and physical health of all persons involved in the situation; and
- The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights.
Each judge will interpret the facts in the statute differently. They will each bring in their own personal and life experiences in analyzing the facts and law before them. This is simply a fact of life and part of any custody case. Judges and magistrates hear each and every day “he said – she said” stories. It is what they do for a living. At the end of the day more often than not they come to the conclusion that the truth falls somewhere in the middle. Preparations for a custody case can take a lot of time and effort. If you are looking to present the strongest custody case that you can, you will do so not by your testimony, but by producing the objective information that is going to prove to the court that you are the person to be a better fit as the legal custodian; or, at the very least the primary custodian of the child(ren) in a Shared Parenting Plan.
When it comes to shared parenting the court needs to ascertain that both parties are capable of shared parenting. In doing so, they must determine that shared parenting is in the best interests of the child(ren). The court will consider all relevant factors, including, not only those listed above for custody, but also the following:
- The ability of the parents to cooperate and make decisions jointly, with respect to the child(ren).
- The ability of each parent to encourage the sharing of love, affection, and contact between the child(ren) and the other parent.
- Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent.
- The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting; and
- The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.
Shared parenting only pertains to the parties’ “legal rights” to make decisions affecting the child(ren), and does not pertain to the amount of parenting time the parties have with the child(ren). Parenting time is a separate but related issue that is also addressed on this website.. In shared parenting arrangements, one parent is designated the “residential and school placement parent” for the child(ren).
When allocating parental rights and responsibilities for the care of child(ren), the court shall not give preference to a parent because of that parent’s financial status or condition. Although, Ohio law does not consider the economic status of a parent in determining custody, if a parent is living in unsafe housing or is unable to provide the child(ren) with basic necessities including food, clothing, warmth, cleanliness, etc., such factors will likely be considered in determining the best interests of the child(ren). It is important to meet with one of our experienced divorce lawyers early on in the proceedings so that you can best protect your relationship with your child(ren). You will then be able to prepare the best way to demonstrate that you are able to care for your child(ren).
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