Ohio Father Law Perspectives

Ohio Laws Affecting Married, Divorced & Unmarried Fathers

Archive for the tag “custody”

shutterstock_72927181A Bucket Full of Snakes– Spousal Privilege in Family Law Cases

Spousal privilege confuses a lot of smart people.  One form of legal privilege is the testimonial privilege which prevents certain witnesses from testifying about things they know.  Familiar examples are the attorney-client privilege, the doctor-patient privilege, and the priest-penitent privilege. The privilege can only be asserted by the client, patient or penitent, and never by the attorney, doctor or priest.  The law does not favor privilege because it excludes evidence; as such, courts “narrowly construe” privilege, which means its technicalities are strictly followed.  Spousal privilege only applies to testimony in court.

Section 2945.42 of the Ohio Revised Code provides that a witness may not testify against his spouse unless the case involves personal injury by either spouse against the other.  So, unless the spouses are suing each other for bodily injury, or have “waived’ (given up) the privilege, spouses may not testify against one another if the non-testifying person properly asserts the privilege.

Spousal privilege has far-reaching implications.  Spouses routinely testify against each other in family law cases; by filing claims against each other, they are deemed to have waived (given up) the spousal privilege because they have filed court actions against each other.  Nevertheless, spousal privilege can still be critical in family law cases.

Successful Assertion of Spousal Privilege in a Custody Case

Recently, I represented the mother in a custody case and I called her husband as a witness.  The father’s attorney asked him what his wife (the mother/my client) had told him about how long she left the child alone after school.  I objected and asserted the spousal privilege.  The father’s attorney rolled his eyes and laughed.  The Magistrate adjourned, researched the issue and found that I was right.  The mother was married to the witness and what she told him is protected by the spousal privilege.

The father’s attorney then lost his momentum on cross-examination and never recovered.  Had he read the statute since the bar exam, he would have attempted to prove that the mother had given up the spousal privilege by making her statements in the known presence or hearing of another person.  Had he asked the witness in his earlier deposition before trial whether he had told anyone else what his wife had told him, he may have been able to introduce the statements by a third-party.  The spousal privilege only stops a spouse from testifying, not from running his mouth outside of court in a way that could be admissible.  As a result of all this wrangling, everything my client told her husband about the case was excluded.

Future Applications

Most family law cases have cross claims that kill spousal privilege.  Perhaps when I represent the next Defendant I could withdraw our counterclaim at the last minute and then assert the privilege when the Plaintiff attempts to introduce anything the Defendant said.  With the right case and the consent of the client, fun times could be had by all.

Copyright 2014.  All Rights Reserved.  Anne Catherine Harvey LLC

“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.

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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

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Ohio Home School Law: A One Parent Decision

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Grunt Work is Parenting Too

Kid:  Knock-Knock

Dad:  Who’s There?

Kid:  Canoe

Dad:  Canoe Who?

Kid:  Canoe help me with my homework??

      Homework, soccer, girl scouts, and the holiday dinner menu at the ex’s house are examples of non-legal issues that are now fair game in custody litigation.  I spend a substantial amount of billable time on these issues and, unfortunately for the clients, the more deeply involved the lawyers and courts become on what I call “lifestyle” questions, the higher the legal bills and the less satisfying the results.

The courts follow some fairly straight forward rules on lifestyle questions.  For example:

HOMEWORK.  It better get done.  This means that if your ten-year-old has a 10 pm bedtime and your mid-week parenting time is from 6-9 pm, homework trumps other activities.  The legal theory cited by the courts in support of this has a very long Latin name, but I’ll translate:  This is what it means to be a parent.  So, even though the parenting time is “your” time, the courts expect adult behavior from the adults and this means getting the math done.  For custodial parents, this means sending the assignment with the child.  For adults who cannot accomplish this, http://www.ourfamilywizard.com independently tracks the exchanges.

SOCCER-BALLET- BAND CAMP.  Children have lives and the courts expect parents to facilitate these burgeoning lives.  So, this means that if your child has an 8 am game Saturday morning, across town, and it’s raining cats & dogs, you get up early, feed him (more on that below), and drive him there.  The courts are not sympathetic that you’re spending “your” parenting time driving hither and yon, because this is what it means to be a parent.  And, unless the child is so severely over-scheduled that his grades are dropping or his health is compromised, legal arguments that your ex deliberately signs the child up for everything just to ruin “your” parenting time are not well received.

      DINNER MENUS.  Fights about fast food, obesity, and white vs wheat are the worst.  Again, unless your child has a genuine medical issue, he is going to survive your ex’s food selections.  If you child is obese, his parents (the adults) should collaborate with a nutritionist.  The courts expect no less.

The bottom line for Fathers:  Parenting time is the child’s time.  Don’t spend too many lawyer hours fighting lifestyle choices.  Some of the best talks a dad can have with his child take place in a car, going to the 3rd soccer game that weekend, after a Friday night of homework and Chicken McNuggets.

The bottom line for Mothers:  Parenting time is the child’s time.  It does not help for you to remind dad about the hundreds of trips you make to baseball vs the measly few he has to make, because he’s probably still stinging that you have more parenting time.  Unless you’re willing to swap places altogether, schedule-wise, then provide him the schedule, equipment, homework whatever, and send your child off with a smile.

 

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