Ohio Father Law Perspectives

Ohio Laws Affecting Married, Divorced & Unmarried Fathers

Archive for the tag “Child Support”

BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

shutterstock fear_175790252 [Converted]BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

Fear can devour divorce clients. Sometimes fear is so sharp that a person delays the inevitable. Unfortunately, fear during a divorce is normal and unavoidable.  In a few circumstances, what clients perceive as huge barriers in their cases actually turn out far smaller than they imagined going in.

Long-Term Marriages

Many clients first meet with me concerned that their case will be complicated just because it has lasted upwards of thirty years.  In reality, long-term marriages, where the partners start out together with clothing, wedding gifts, and starter cars, are easier to end than shorter marriages where the parties are more likely to be on their second (or third) divorce and they started off with property and debts. Usually a longer marriage means that the parties’ children are emancipated by reason of age, so there are no issues of custody or child support.  A longer marriage also means that, unless there are inheritances, personal injury settlements, or gifts, then the property and debts are probably going to be considered “marital.”  Under Ohio law, an equal division of marital property and debts is presumed to be fair.  If all the property and debts are marital, it is merely a matter of itemizing and valuing the property for an equal division. Long-term marriages tend to bring a host of emotional issues.  When a person has been married longer than they were ever single, the transition to a divorce can be very traumatic.  Most people in this situation, however, have an innate toughness and recover quickly.  Again, when the common children are emancipated, it is easier to live separate lives without the constant challenge of co-parenting while divorced. So, terminating a long-term marriage usually causes more emotional issues than legal issues.

My Spouse is in Prisonshutterstock fear_175790252 [Converted]

Not surprisingly, imprisonment often leads to divorce.  Ohio law specifically provides that “imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint” is grounds for divorce.   The fact of imprisonment is usually easy to corroborate and service of process can be done to the party in care of the warden of the institution.

The complexities of “prison divorce” revolve around child issues.  The mere fact of imprisonment does not mean a party will never again see their children.  The fact of imprisonment greatly diminishes a party’s ability to pay child support.  In fact, Ohio law now provides that income will not be imputed to a parent who is:

“incarcerated or institutionalized for a period of twelve months or more with no other available assets, unless the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order when the obligee or a child who is the subject of the support order is a victim of the offense.”

In the usual circumstance, the child support obligation will be set at close to nothing during the time of imprisonment.  And, the other parent is usually not surprised and is happy simply to attend a short hearing without the presence of their imprisoned spouse.

Boilerplate Language

Most divorce documents contain language such as “gross neglect of duty,” “extreme cruelty,” and my spouse will “molest and annoy” me unless restrained by order of this court.  We field many calls of panic over this language when people are served with divorce.

In reality, the language is boilerplate and taken directly from the statute for grounds and the requirements for a temporary restraining order.  I routinely reassure clients that the language is on every lawyer’s computer in town and that we will file the “mirror image” of what their spouse filed.

Incompatibility is the basis for almost all Ohio divorces.  The only purpose of a restraining order is to keep the parties in the same position as they were in before the filing.  In this instance, “molest” in this contest is an outdated legal term that has nothing to do with sexual abuse.

shutterstock fear_175790252 [Converted]Conclusion

Divorce is rough, but usually for reasons other than what clients expect in the beginning.  At least in the circumstances outlined above, I usually can relieve the immediate terror of what is taking place.

Copyright 2014.  All rights reserved.  Anne Catherine Harvey LLC

Victory for Fathers’ Rights on Two Fronts!

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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.

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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

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