Ohio Father Law Perspectives

Ohio Laws Affecting Married, Divorced & Unmarried Fathers

Archive for the tag “Change of Custody”

“Not all prisons have bars” Amanda Hocking, Torn

Relocation with a minor child is a heart-breaker.  Just when the newly divorced parents have gotten used to the parenting schedule, the back-and-forth, and the reality of not seeing their child every day, somebody gets transferred.  Or somebody has a new love interest.  Or somebody wants to fulfill their life-long dream of living in sunny California.

                                     Can I Move with My Child? Can She Move My Child Away?

There is an entire body of law surrounding when a parent can move with a child.  If the new place is merely across the street, all that has to happen is to file a notice of new address with the court and the child support agency.   If the new place is fairly close, say around 50 miles, then the moving person will at least initially be stuck with most of the drive back and forth.  Dayton to Columbus does not change the every other weekend arrangement.  Dayton to L.A., however, changes everything for everyone.

Mothers often ask me if they can move to wherever, for whatever reason, usually far away, often for a new military husband.  I tell them that they can move anywhere they can afford to live because this is America and anybody can live anywhere.  If they want to take the child with them, however, it’s another story.

If mom is the custodial parent, the mere act of moving away does not constitute a “change of circumstances.”  In order to stop litigation and provide stability to children, Ohio law requires the parent requesting a custody change to prove that a change of circumstances has occurred.  The change must be substantial and unknown at the time of the last order.  A change of circumstance must first be proven before the court will start to think about what is in the child’s best interest.  If the other parent, usually the dad, decides to contest the move, a custody battle usually follows.

Judges call custody decisions agonizing.  Parents call custody battles hell.  The recent case of In re M.P., 2013-Ohio-3939, illustrates this point perfectly.  Pam and Rodney were divorced with a son (“Johnny”) and Pam had custody.  A year later, Pam and Rodney had a full trial on whether Pam’s plan to move constituted a change of circumstances.  Nothing changed because Pam decided not to move, after all, with her new boyfriend to Florida, 1200 miles away.  The following year she moved to Florida anyway, took Johnny with her and enrolled him in year round school.  Rodney filed for custody.

image

After a second full custody trial, the Court eventually required Johnny to return home and granted custody to Rodney.  The Court held that an out of state move, along with other circumstances, could constitute a substantial change of circumstances.   The other circumstances in this case included the fact that both sets of grandparents lived near Rodney in Ohio; that Johnny had friends in Ohio he had known since his birth; that Pam’s new boyfriend was volatile and altercations had taken place; and the distance and year round school all but eliminated regular parenting time between Johnny and Rodney.

It is hard to imagine a situation where an out of  state move does not affect other circumstances that the non-moving parent can develop to keep the child at home.  In Brown v. Brown, 2013-Ohio-3456, Holli and Troy divorced and Holli took custody of their three boys.  A year later, she wanted to move from Champaign County, Ohio to South Carolina for a new job and to be closer to her parents.  A custody battle followed.

All three boys had close bonds with their immediate and extended family.  Interestingly, the Court found that the fact that Holli had been the primary caregiver was not the most important factor to consider.  In the previous case,  In Re M.P., the Court noted that Pam had been Johnny’s primary caregiver, but that could only be considered in the initial custody determination (who gets custody in the divorce), and not in a later request to change of custody.  The Brown court found that it was impossible to imagine how the children could be better adjusted to their friends and family in Champaign County and the only advantage to a move to South Carolina was a longer sports season because of the milder climate.  The Court kept the boys in Ohio and awarded custody to their father.

 TAKE AWAY FROM ALL THIS     

What is the take-away from these recent cases?  I was happy to learn that there is an expiration date to the advantage to being the primary caregiver.  Fathers are frequently beat over the head with the argument that the mother has provided most of the care, so therefore she is the best parent for custody.  While this still has heavy weight during a divorce custody battle, it cannot be considered in a change of custody after divorce.

Both of these cases had good father facts.  All of the children were older, both fathers were hands-on, and the all the children were thriving in Ohio.

The longer a child lives in Ohio, the more likely it is that he will stay.  The built-in advantage to the primary caretaker dissipates with time.  It is costly and agonizing to contest a relocation, but relocation out of state has more far-reaching (pun intended) impact upon the parent-child relationship than who has custody in the same town.

Copyright 2014. All Rights Reserved.  Anne Catherine Harvey LLC

charlie

Victory for Fathers’ Rights on Two Fronts!

image

I have many clients who are fathers in bad situations. Some fathers find themselves in bad marriages, but fear filing for divorce because they believe that the courts will always favor the mother and they will simply lose their children. Other fathers, already divorced, feel shut out of the parenting process, but fear filing for custody because they believe it is simply a lost cause. Increasingly, however, the Courts are looking to facts and not simply to gender. The latest case to highlight this encouraging trend is Neer v Neer,  Montgomery County Appellate Case No. 25876.

In Neer, the mother appealed the trial court’s decision granting the father’s Motion to Terminate a Shared Parenting Plan and Motion to Modify Child Support. Father and mother had been in a shared parenting plan since their divorce. The father found the plan unworkable because of the mother’s unilateral actions. For example, mother decided to put their teenage son on Prozac without consulting father. She later took him off Prozac without consulting father and the child became sick with the side effects of withdrawal. She failed to tell father of any of their son’s medical appointments. The mother also changed their eight-year-old son’s day care without consulting father. This caused confusion to the child and disruption to the father. The mother refused to cooperate with the new daycare provider when father was forced to work late.

The Court granted the father’s request for custody, terminated his child support obligation and ordered the mother to pay child support to the father. The Court also imputed a higher income to the mother than the mother’s reported income from a part-time job, increasing mother’s monthly child support obligation to the father.

The Neer court stated:

“Significantly, the record established that the parties’ relationship had deteriorated since the divorce to such a degree that the minor children had begun to suffer as a result of Paulette and James’ inability to communicate effectively. Paulette routinely made unilateral decisions without James’ input or knowledge that negatively affected the children in various ways. The evidence further established James is able to provide a more stable living environment.”

A mother’s routine lack of coöperation? A father who can provide a more stable living environment? The court clearly looked at the parties’ actions without regard to their gender and determined that the mother caused the problems in the shared parenting agreement. The trial court found that the mother had excluded the father in the parenting and it had adverse effects on the minor children. The language used by the Court shows that it considered each person’s abilities as a parent, period. The Court went to the trouble of considering facts instead of automatically assuming the mother just had to be the better parent.

The second area the court ruled on that was helpful for fathers rights was the ruling on the mother’s Child Support Order. The Court based the amount of child support paid by the mother to the father upon income  she should have been earning, not the much lower amount she actually earned. Despite the fact that the father earned far more than the mother, the court increased the mother’s child support obligation beyond what she actually earned.

image

What does this mean for fathers? It means that you have rights and the courts will not ignore you if you have facts to back-up your custody case. Fathers should collect evidence (emails, texts, Facebook posts, dates of events) that demonstrates that the mother’s actions are destructive to the father-child relationship. In short, the Court recognized that the father-child relationship has inherent value and it protected this valuable relationship at the expense of the mother whose actions undermined that very relationship.

The father in Neer had several factors to his advantage going in to the case. For starters, he already had shared parenting and was designated residential parent for school purposes. He also had the good luck to be the father of older boys. Finally, the mother did herself absolutely no favors by messing with a trouble child’s medical care and disrupting the daycare and school schedule for the younger child for her own financial gain.

Would the case have had a different outcome if the children in question had been two-year-old twin girls? Perhaps. The point of Neer is that the Courts are now looking to specific facts and not simply perpetuating the myth that gender controls a person’s parenting ability. It is always easier for a father to win a child dispute case when the mother is what I call a “Imperial Mother.” The fact that the mother in Neer was willing to appeal the case despite her own actions indicates that she herself was counting on the historical bias in favor of mothers. She’s done a favor to fathers everywhere by elevating the case to the appellate level.

I found the Neer case on my Ohio State Bar Association app where I read advance sheets on family law every morning before work. If you have questions about this case, or concerns about your legal rights as a parent, I’d be glad to speak with you.

Copyright 2014. All rights reserved.  Anne Catherine Harvey LLC.

charlie

Ohio Home School Law: A One Parent Decision

Read more…

Post Navigation