More on Paternity / Parenting Rights

Treneff Cozza Law, LLC, located in Westerville, Ohio, handles Parental Rights cases in Franklin County. We also represent clients in Delaware, Fairfield, Pickaway, Madison, Ross, and Marion Counties.

When a marriage is terminated during which children have been born, an Ohio court must allocate parental rights and responsibilities for that child or children. In this context, many people refer to the terms “custody” and “joint custody.” These terms have largely been replaced by other concepts. A parent who is designated by the court as the residential parent and legal custodian of a child has been granted legal custody of that child, meaning that the residential parent has the authority to make the basic decisions which effect the child. Joint custody has been replaced in the Ohio Revised Code with the term, shared parenting. Parents who are awarded shared parenting have equal legal rights and responsibilities for their children, and, unless the Shared Parenting Plan provides otherwise, equal decision-making authority.

Consequently, the distinction between designation of a parent as the sole residential parent and legal custodian and the designation of a parent as a shared parent is that the former will have sole decision-making authority whereas the latter will share that authority with the other parent.

Shared parenting may be requested by either party or may be requested jointly. In either case, a Shared Parenting Plan must be presented to the Court. The Plan must contain provisions for all of the specific issues that the court has jurisdiction to decide. First, the Plan must designate a school placement or attendance parent. This is a designation of which parent’s address will be provided to a school district to enable enrollment of the child. If private school is an issue, the school placement parent may have the authority to pick the school (depending upon the other provisions of the Plan). Second, the Plan must set forth a specific parenting time (formerly known as visitation) schedule. Terminology such as “companionship time” or “time in residence” is still seen but the Revised Code now calls the time spent with a parent “parenting time.” The parenting time schedule provided for in the Plan must be specific in nature and should address the regular time alternation, holidays, birthdays, school breaks and vacations.

While parents are free to vary parenting schedules by agreement, a specific schedule is required in the order; it is not possible to adequately address the issue by reference to “liberal visitation” or some such vague term. Many people believe that Shared Parenting requires the parties to divide the parenting time equally. That is not the case. A Plan may set forth any workable allocation of time, including an alternating weekend schedule as in a sole residential parent context. Third, child support must be addressed. Again many people believe that Shared Parenting means that no child support is exchanged while that may be the case under certain circumstances that is not the standard. Child support should be calculated as though each parent is the sole residential parent and legal custodian and then a Finding of Fact and Conclusion of Law can be offered to the court to deviate to the desired child support level. Child support is ordered in the majority of Shared Parenting cases. Fourth, a provision must be made for medical insurance and medical expenses. That is, one or both parents must provide medical insurance and the Plan must also provide for the payment of all uninsured medical expenses such as co-pays, deductibles, and uninsured expenses such as orthodontia (if there is no dental insurance). Finally, the Plan should allocate the federal tax exemptions and child credits. Over time, the child credit, which is linked to the exemption, will become more financially valuable than the exemption. This is due to recent federal tax legislation that increases the amount of the credit annually.

Many other issues can be incorporated into a Shared Parenting Plan such as allocation of decision-making authority, college expenses (only if agreed), religious instruction, and a multitude of specifics (e.g. drop-off and pick-up provisions, telephone contact, vacation itineraries, etc.). In the event of an agreed or ordered Shared Parenting Plan, the Court will also issue a Shared Parenting Decree. Because the court retains jurisdiction over the child or children until emancipation (generally age 18 or high school graduation, whichever is later), a Shared Parenting Plan may be modified or terminated upon the motion of either party.

Determination of the designation of a sole residential parent and legal custodian (the other parent is called the “non-residential” parent) also requires the practical consideration of the factors listed above for Shared Parenting: parenting time schedule, child support, health insurance and medical expenses, and allocation of the tax exemption and child credit. A parent named sole residential parent and legal custodian is the school placement parent by virtue of the allocation.

The allocation of parental rights and responsibilities, whether in the form of shared parenting or sole residential parent and legal custodian status, requires a court to take into account the best interest of a child. Section 3109.04 of the Ohio Revised Code defines the best interest test as including consideration of several factors: the wishes of the parents; the child’s wishes and concerns if an interview is conducted; the child’s interaction and interrelationship with parents, siblings, and any other person who may significantly affect the child’s best interest; the child’s adjustment to home, school and community; the mental and physical needs of all persons involved; the parent more likely to honor and facilitate court-approved parenting time rights; whether either parent has made all child support payments; whether a parent has been found guilty of child neglect or abuse; whether a parent has continuously and willfully denied the other parent’s parenting time; and, whether either parent has established or is planning to establish a residence outside the state.

Additionally, in considering whether Shared Parenting is in the best interest of the child, the court will look at the following factors: the ability of the parents to cooperate and make decisions jointly; the ability of each parent to encourage the sharing of love, affection and contact between the child and other parent; any history of abuse of the spouse or child; parental kidnapping; the geographical proximity of the parents to each other; and, the recommendations of a guardian ad litem if one is appointed.

Obviously, child custody is a complex subject and only the most basic outline can be presented on this web site. A downloadable version (PDF file) of the Franklin County Parenting Time/Visitation Rule (Local Rule 27) can be found on this site.

If you have legal concerns regarding parental rights, contact us today for a consultation.