Ohio’s New Child Custody H.B. 508
Ohio’s H.B. 508, if passed, would be a massive shift in child custody laws. Ohio’s new law would make shared parenting plans and equal custody the default.
Under the current law, a sole custody arrangement allows only one parent (i.e., the residential parent) to make decisions for the minor children, and the other parent (i.e., the non-residential parent) is entitled to visitation with the minor children.
Under the current law, a shared parenting arrangement allows each parent to be considered the residential parent, and each parent is entitled to be considered the residential parent. Each parent is entitled to make decisions for the minor children. The custodial arrangement is independent from the visitation schedule that the parents enjoy with the children. The courts determine custodial arrangements based on what is in the best interest of the children.
Currently, the court’s default on sole custody parenting. If one party wants to exercise shared parenting, they bear the burden of taking affirmative steps to notify the court that shared parenting is in the best interest of the children.
Currently, the court defaults on the standard local rule parenting time and schedule. The courts are not required to follow their local rule, and they can deviate from local rule on a case-by-case basis.
H.B. 508 proposes a dramatic shift from the preference of sole custody towards a preference of shared parenting arrangements and equal parenting time visitation schedules. H.B. 508 states an overarching public policy principle where Ohio courts would be required to abide by them. H.B. 508 states the following purposes:
Assure that minor children have a continuing full parent and child relationship with parents (R.C. 3109.044). Assure to the greatest degree possible that parents share equally in parenting time and the rights and responsibilities of rearing their children after the parents have separated (R.C. 3109.044).
H.B. 508 sets every custody case with the presumption that shared parenting time and equal parenting time is in the best interest of the children.
If a parent disagrees with the shared parenting presumed arrangement, they now have the burden of proof to rebut the presumption and prove to the court that sole custody is the better arrangement in their situation. The person requesting sole custody would need to take steps (under H.B. 508) to show the court that the shared parenting plan should not be followed. There is a rebuttable presumption the shared parenting agreement is in the best interest of the children, unless the court finds, by clear and convincing evidence, based on the factors, that the allocation would be detrimental to the children (R.C. 3109.0410).
In rebutting shared parenting, the parent would need to show the shared parenting arrangement would be detrimental to the children, including the following factors:
(A) The demonstrated ability of each parent to cooperate with the other parent and to encourage the sharing of love, affection, and contact between the child and the other parent (R.C. 3109.0411(A).
(B) Any history of child abuse or neglect, spouse abuse, other domestic violence, or parental kidnapping by either parent (R.C. 3109.0411(B).
(C) The mental and physical health of all persons involved in the situation (R.C. 3109.0411(C).
(D) The recommendation of a Guardian ad Litem, to the extent one is involved in the lawsuit (R.C. 3109.0421(D).
H.B. 508 states there is a rebuttable presumption that equal decision-making rights and responsibilities between the parents, with both parents remaining legal custodians and residential parents, is in the best interest of the children (R.C. 3109.0420(A). This presumption is rebutted only if the court finds by clear and convincing evidence, based on the factors listed in section 3109.0422 of the Revised Code, that an equal parenting time arrangement would be detrimental to the minor children (R.C. 3109.0420(B).
In determining whether the presumption of equal parenting time is rebutted, the court considers the following factors: (R.C. 3109.0422)
(A) Any history of child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent, including whether either parent (R.C. 3109.0422(A).
(B) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of parenting time and whether a parent has relocated to impede equal parenting time (R.C. 3109.0422(B);
(C) If the court has interviewed the child in chambers regarding the child's wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court (R.C. 3109.0422(C);
(D) The child's interaction and interrelationship with the child's parents, siblings, and any other person who has a significant relationship with the child (R.C. 3109.0422(D);
(E) The child's adjustment to the child's home, school, and community (R.C. 3109.0422(E);
(F) The mental and physical health of all persons involved in the situation (R.C. 3109.0422(F);
(G) Whether a parent has continuously and willfully interfered with or denied the other parent's right to parenting time in accordance with an order of the court (R.C. 3109.0422(G);
(H) Whether either parent has established a residence, or is planning to establish a residence, outside this state (R.C. 3109.0422(H);
(I) The recommendation of the guardian ad litem of the child, if the child has a Guardian ad Litem, provided that the court does not rely on the recommendation as the sole basis for its determination and the recommendation is subject to the policy stated in section 3109.044 of the Revised Code (R.C. 3109.0422(I).
If the court determines by clear and convincing evidence that the presumption regarding equal decision-making responsibilities is rebutted, the court shall do the following: (R.C. 3109.0424)
(1) Issue an order designating one parent as the residential parent and legal custodian of the child (R.C. 3109.0424)(A)(1);
(2) Allocate most of the decision-making rights and responsibilities to the parent who has demonstrated a greater and consistent willingness to cooperate with the other parent and to encourage the sharing of love, affection, and contact between the child and the other parent (R.C. 3109.0424)(A)(2).
H.B. 508, if passed, would be a massive shift in child custody laws. H.B. 508 refocuses the current best interest test factors to assess why the court should not default on a shared parenting plan with equal parenting time.
As a licensed attorney, I can help you assess and understand child custody issues.