The following was put together by attorney William Geary and legal assistant Anna Olinger to discuss some of the client and caller questions we have not gone over before in our blogs.
We’ll try to keep our responses short but informative. Note: These answers are based upon Ohio law and may not be applicable or relevant in other jurisdictions.
Ohio Divorce Custody and Support
Which parent has custody if the couple has never been married and no court documents have been set in place?
When children are born to unmarried parents, the Mother has total custody if there has never been a court order to the contrary.
If a child was born before a couple married but the father’s name is on the birth certificate and no DNA test has been done to establish paternity but the couple gets married then gets a divorce; who has the legal right to the child?
No matter how complicated the situation becomes if the parties were not married at the time of the birth of the child, the Mother has sole legal rights to the child and sole legal custody until there is a court order otherwise. This applies even if the parties marry after the child’s birth and also applies regardless of whether the Father’s name is on the birth certificate and also applies even if the father’s paternity is established. In all of these fact situations, until there is a court order to the contrary, the Mother has sole legal custody and rights.
What are the factors the court takes into consideration before awarding child custody to one parent over the other?
Ohio has a statute which provides factors for the court to consider. These are as follows:
In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:
3109.04(F)(1)(a) The wishes of the child’s parents regarding his care;
3109.04(F)(1)(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, as expressed to the court;
3109.04(F)(1)(c) The child’s interaction and interrelationship with his parents, siblings, and any other person who may significantly affect the child’s best interest;
3109.04(F)(1)(d) The child’s adjustment to his home, school and community;
3109.04(F)(1)(e) The mental and physical health of all persons involved in the situation;
3109.04(F)(1)(f) The parent more likely to honor and facilitate visitation and companionship rights approved
by the court;
3109.04(F)(1)(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;
3109.04(F)(1)(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;
3109.04(F)(1)(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent of his or her right to visitation in accordance with an order of the court;
3109.04(F)(1)(j) Whether either parent has established a residence or is planning to establish a residence outside this state.
Ohio Divorce Custody and Support: Shared Parenting
Furthermore, 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 [R.C. 3109.04(F)(1)], the factors enumerated in [R.C. 3119.23], 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.
What are the factors that are considered when one parent is trying to move their child out of state and away from the other parent?
The usual approach to this type of situation, for the parent who would be remaining in the state, would be for that parent to file a motion to keep the child in the present state. Things considered would include the age of the child, people, doctors, friends’, neighbors, relatives, sports activities, churches, and schools with which the child has interacted or been involved in the present residential area as well as any other relevant factors.
Ohio Annulment Requirements
What are the guidelines and requirements for an annulment rather than a divorce?
For an annulment, the requirements are controlled by statute. That statute is as follows:
3105.31 Causes for annulment.
A marriage may be annulled for any of the following causes existing at the time of the marriage:
(A) That the party in whose behalf it is sought to have the marriage annulled was under the age at which persons may be joined in marriage as established by section 3101.01 of the Revised Code, unless after attaining such age such party cohabited with the other as husband or wife;
(B) That the former husband or wife of either party was living and the marriage with such former husband or wife was then and still is in force;
(C) That either party has been adjudicated to be mentally incompetent, unless such party after being restored to competency cohabited with the other as husband or wife;
(D) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, cohabited with the other as husband or wife;
(E) That the consent to the marriage of either party was obtained by force, unless such party afterward cohabited with the other as husband or wife;
(F) That the marriage between the parties was never consummated although otherwise valid.
Effective Date: 09-24-1963.
Ohio Divorce Requirements
Divorce requirements are also controlled by a statute. That statue is as follows:
3105.01 Divorce causes.
The court of common pleas may grant divorces for the following causes:
(A) Either party had a husband or wife living at the time of the marriage from which the divorce is sought;
(B) Willful absence of the adverse party for one year;
(D) Extreme cruelty;
(E) Fraudulent contract;
(F) Any gross neglect of duty;
(G) Habitual drunkenness;
(H) Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint;
(I) Procurement of a divorce outside this state, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while those obligations remain binding upon the other party;
(J) On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation;
(K) Incompatibility, unless denied by either party.
A plea of res judicata or of recrimination with respect to any provision of this section does not bar either party from obtaining a divorce on this ground.
Effective Date: 10-06-1994.
If a party is receiving spousal support; is it common that the spousal support will be terminated when remarried? (for either party).
The termination “upon remarriage” refers to the person receiving the spousal support (or “alimony” as it is sometimes known). Almost always, remarriage results in termination of one’s right to receive spousal support. However, it can be provided that a party continue receiving spousal support from the other party even if the receiving party remarries. Note that cohabitation may also result in spousal support termination.
Attorney William Geary has been practicing law since 1979 and concentrates his practice solely on Family Law matters. He has the highest rating possible from Martindale-Hubbell. He is admitted to practice before the state courts in Ohio, and the Federal District Court for the Southern District of Ohio as well as being admitted to practice before the Supreme Court of the United States. www.columbusfamilylawyer.com