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Tibbs Law Office
8845 Governors Hill Dr., Ste 450
Cincinnati, OH 45249
513-793-7544
When parents with minor children separate either before or after a divorce action has been initiated, one of the most pressing and important items to address is a parenting schedule. If parents are unable to agree, Courts will often issue a default “Standard” parenting schedule that may remain in place throughout the pendency of a divorce action, until a hearing has been held, or even indefinitely after your divorce has been finalized. Which “Standard” parenting schedule you may be ordered to follow depends entirely on the county you are divorcing in. (A link to each local court’s standard schedules can be found under “Resources” below.) However, your family is not “one size fits all.” It is highly likely that a Court’s “Standard” schedule is entirely impractical for your family. The only way to avoid the Court deciding a schedule for your family is to agree upon a schedule with your spouse – either on your own, or with the help of an experienced family law attorney, mediator, parenting coach, or co-parenting counselor.
Flexibility with any parenting schedule is always encouraged, ensuring that a parenting schedule does not negatively limit the children’s opportunities and experiences. For example, a child should not have to miss out on a cousin’s birthday party on Parent A’s side of the family, just because it is Parent B’s time. Parents are free to modify the parenting schedule as needed, so long as they both agree (which should be properly documented). However, if you find that schedule modifications are causing more harm than good because of parental conflict, parents should keep to the schedule as written, until co-parenting communication has improved to allow flexibility. Overall, the best parenting plan is the one that fosters a healthy relationship between the children and both parents and minimizes the conflict your children are exposed to. An experienced family law attorney can help you come up with a schedule that works best for your family.
Factors to consider while preparing a parenting schedule:
RESOURCES
Many people think of Rosa Parks as the strong-willed woman who refused to give up her seat, however, Parks was an advocate for change even before that. Parks was a secretary for the NAACP long before this and helped investigate acts stemming from racism and sexism.
In 1944, Parks was sent to investigate the gang rape of Recy Taylor, a black woman from Abbeville, Alabama. Parks ended up founding the “Alabama Committee for Equal Justice for Mrs. Recy Taylor,” based on Taylor’s story. The white perpetrators were never arrested nor indicted for any crimes stemming from this act despite one of the men coming forward and admitting that he was involved.
Parks and Taylor continued to speak out against these acts of hate and the Committee drew national attention to the violence towards black women. Both women continued to advocate for survivors of violence until their death.
Sources:
Rogers, Laura. “National African American History Month: Remembering Rosa Parks’ Work to Address Sexual Assault.” The United States Department of Justice, 20 Jan. 2021, www.justice.gov/archives/ovw/blog/national-african-american-history-month-remembering-rosa-parks-work-address-sexual-assault.
“Mrs. Recy Taylor (1919-2017).” National Parks Service, U.S. Department of the Interior, www.nps.gov/people/mrsrecytaylor1919-2017.htm.
Nesting is a transitional arrangement for parents to consider when starting the separation/divorce process. Nesting means that your children remain in the marital residence, and the parents take turns being in the home with the children and acting as the “on-duty” parent. The parents follow a specific parenting schedule outlining when each parent will be in the home with the children. Nesting requires that each parent has another place to stay when it is not their parenting time, such as a family or friend’s home, or a second residence. While parents may find the concept of moving back and forth cumbersome, it does allow parents to experience firsthand what the children are expected to start doing once the nesting arrangement ends.
The nesting process can be done for as long as it is feasible and makes sense for your family. Even if this arrangement only makes sense for a short period of time, it can still be valuable in helping your children with the initial shock and confusion of their parents separating. How long the nesting arrangement lasts may depend on whether one parent is keeping the home, and how long it will take the other parent to obtain a new residence.
An attorney can help you prepare a detailed, thoughtful nesting agreement that will allow you and your spouse to start the separation process on your own terms. This can be especially helpful if the parents are not ready to legally initiate a divorce or dissolution action. Certain topics that should be discussed and agreed upon before implementing a nesting arrangement include:
Resources:
1. The Parent’s Guide to Birdnesting: A Child-Centered Solution to Co-Parenting During Separation and Divorce, by Ann Gold Buscho, PH.D. https://drannbuscho.com/
2. “Are You Getting a Divorce and Thinking About Nesting?” by Susan Pease Gadoua L.C.S.W.
https://www.psychologytoday.com/us/blog/contemplating-divorce/201902/are-you-getting-divorce-and-thinking-about-nesting
When couples get divorced, one party may feel that the other is hiding money, whether it be in an undisclosed bank account, a safe deposit box, or in an offshore account. When this occurs, attorneys have tools we use to identify undisclosed or hidden money.
During a divorce, the parties have the opportunity to engage in a process generally called “Discovery.” During this phase, we issue what is called “interrogatories and request for production of documents” to one another. Interrogatories are essentially questions that are propounded upon the opposing party. It is the opportunity for the parties to ask each other questions to get information that might lead to the discovery of hidden funds. The request for production of documents is exactly what it sounds like. It allows the attorney to ask for documents that may be used to help identify marital assets. Both forms of discovery are commonly used because it is an efficient way to get information. Both parties are under oath when responding to these requests, so lying can carry harsh penalties.
Once an attorney gets the names of the companies that hold financial accounts, an attorney may issue what is called a “subpoena.” A subpoena allows an attorney to request documents or testimony from a person/company for the case at hand. If there is thought to be missing monies, an attorney would subpoena the financial account statements then look at these statements to see where the money went. If the money is going to another bank account that the party has not disclosed, the attorney could subpoena the statements of THAT account.
Continually issuing subpoenas is not always the easiest way to find money. Often, attorneys hire a forensic accountant, who traces the money and can be used as an expert in court to testify about money that a party has hidden. This can be useful in contentious divorces between high earning parties.
Parents often believe that their child can decide where they would like to live but this is not true. Children have a voice but not a vote in custody and visitation matters.
How much weight does their opinion have?
The court looks at a series of factors to determine the custody or parenting time of a child. There are no bright-line rules as to which parent will get custody and what the parenting time will be, so the court uses these factors to determine what is in the best interest of the child. A child’s wishes and concerns are one of eight factors that the court considers when determining the best interest.
How do I get the court to consider their opinion?
Presenting a child’s wishes in court is more difficult than a parent testifying that their child wants X, Y, or Z. The parent asking for the child’s wishes to be taken into account can enter this into evidence using a few different methods. First, the parent can file a motion asking the court to conduct an in-camera interview with the child. These interviews are typically conducted in private between the judge and the child only. It prevents the child from being forced to testify in front of their parents and in front of their parents’ attorneys. Second, a parent could ask for a Guardian ad Litem (GAL) to be appointed. The GAL’s role is to do an investigation and to report to the Court what they believe to be in the child’s best interests. Sometimes children will express their wishes to the GAL who may be able to present those concerns in court. While the GAL must also consider the child’s wishes in determining the child’s best interests, the GAL does not have to advocate for that position, if the GAL does not believe that position is in the child’s best interests. Third, the child could be called as a witness at trial. While calling a child as a witness is not preferred, there may be circumstances under which a parent might choose this option.
My child is mature enough to decide, why can’t the court just listen to them?
Family dynamics can be complicated especially to a child who is more impressionable than a grown adult. Unfortunately, some parents do not have their child’s best interest at heart and would rather do anything to sabotage the child’s relationship with the other parent rather than encourage a healthy relationship. Alienation is commonly seen in these situations and can have a big influence on what the child wants. If the court were to solely honor the child’s wishes in these situations and ignore the other factors, then the alienating parent would be able to continue to sabotage the relationship with the other parent. If you would like to know more about parental alienation, click HERE. (https://tibbslawoffice.com/1837-2/)
Using all of the best interest factors, the court sees a broader picture of the family dynamic and is able to make a decision as to what is in the best interest of the child.
If you would like to read the factors considered in determining the best interest of the child, they are found in Ohio Revised Code 3109.04(F)(1).
Many parents file a motion for contempt or face a motion for contempt at some point during their child’s time as a minor. It is important to know what this motion does and the lasting implications that it can have on your custody case.
What is a motion for contempt and what does it do?
A motion for contempt is a motion asking the court to punish a person for not following an order of the court. Most commonly, motions for contempt are filed when one parent does not turn the child over for the other parent’s time with them. Once a motion for contempt is filed, the court will have a hearing to determine if the parent was actually in contempt of the order. If the parent is found to be in contempt, they can face fines, attorney’s fees, jail time (only in the most serious of cases), and the implications a contempt causes in a custody case.
How does contempt affect a custody case?
A parent found in contempt can be ordered to pay the other party’s attorney’s fees, but even more seriously, it shows the court that this person cannot or is unwilling to follow court orders. Showing the court that the parent refuses to follow court orders is a factor in deciding which parent should be the custodial parent. These factors are used for the court to consider what is in the child’s best interest. Being in contempt of orders shows the court that the parent will likely not honor future orders, which is not something that the court looks favorably upon.
If you need help filing a motion for contempt or if you are facing a motion for contempt that was filed against you, please consult with one of our attorneys. Findings of contempt can have negative implications on your custody case.
When a parent does not have custody of their child, the custodian of the child can sometimes manipulate other people into believing that the non-custodial parent cannot be involved in certain ways. A common example of this is access to a child’s medical and school records.
Do I have a right to view my child’s medical and school records?
Under Ohio law, a parent has equal access to all records that would otherwise be available to the other parent unless otherwise ordered by the court. In general, a non-custodial parent has every right to access medical and school records as the custodial parent do. So long as there is not a court order saying otherwise, a record keeper may not deny this information to either parent and may be subject to contempt of court if they do refuse to provide this information.
What do I do if the record holder will not turn over the records?
As stated above, a record keeper can be held in contempt if they knowingly refuse to comply with this law. However, the issue may be the custodial parent’s communication with the record keeper. In some cases, the custodial parent will do everything in their power to exert control over the situation, including telling record keepers that the non-custodial parent may not have access to a child’s records. Custodial parents that are feeling vengeful can create difficulties for the non-custodial parent.
If you find yourself in this situation, begin by showing the record keeper a copy of the court order for the child and direct them to any provisions that say there is equal access to records. If this is not enough, you should get your attorney to speak to the relevant parties. Your last resort is to file contempt, usually against the custodian for failing to follow the provisions in the Court order.
The equal access law can be found in Ohio Revised Code 3109.051(H).
How do I protect myself financially once a divorce is filed?
Once a divorce is filed, the court automatically issues what is called a mutual restraining order. This restraining order prohibits the parties from taking debts in the other’s name; disposing of or destroying assets; terminating insurance; changing beneficiaries; withdrawing, spending, or transferring funds in a bank; terminating household utilities; among many other actions. If a party violates the restraining order, the other party may ask the court to force the party to pay back the money lost and may award other damages.
Forcing the parties to leave bank accounts untouched is not practical for most people. The parties are expected to continue paying their household bills, in the same manner, they paid them during the marriage. Sometimes it is best for the parties to each start a new, separate account and begins placing money in that account once the divorce is filed. This enables the parties to abide by the restraining order, but still have access to their money.
Another workaround to the restraining order is the temporary orders that can be put in place. (If you would like to read more about temporary orders, please click HERE). A party may ask the court to order their spouse to contribute to expenses and debts that the parties have incurred during their marriage. These debts can be as small as utility bills or can be as large as mortgages on a residence. Asking for contributions from the other party may help keep the status quo while the divorce is pending, so one party is not forced to be paying all debts during that time.
While courts in Ohio operate under the same statutes, each county’s Domestic Relations Court differs greatly in the services offered outside of litigation, and the procedures for each service. Because these services have the potential to drastically improve the overall time, cost, and outcome of your case, it is crucial that you hire an attorney who is familiar with and knowledgeable of the services offered. The Clermont County Domestic Relations Court currently offers the following services to assist families in the divorce and post-decree process:
Generally, these services can be ordered or requested at any point in the process, including before or after a divorce, as parenting issues arise. While all of these services offered are designed to help litigants, each service differs greatly in the role it plays in the court process.
Family Service Assessment
Depending on the information provided in the initial filings, your case may start with a Family Service Assessment with the Court’s Parenting Investigator. The Assessment takes place over the phone and allows each party the opportunity to express their wishes and concerns to the Investigator. Within seven days of the phone call, parties will receive a written, nonbinding recommendation regarding which of the offered services would benefit the parties based on their specific circumstances. At the initial pretrial, after receiving feedback from the parties (and/or their attorneys), the Court will determine whether to order any of the recommended services.
Mediation & Early Neutral Evaluation:
In the Clermont County Domestic Relations Court, both mediation and Early Neutral Evaluation are designed to facilitate a settlement between the parties. They are both confidential processes, and the Court staff who participate do not testify at your hearing. There is no additional cost for mediation or ENE services provided by the Court.
Mediation occurs between the parties and a Mediator with the purpose of reaching an agreement on parenting matters, such as custody, parenting schedule, holidays, travel, decision-making, religion, medical issues, schooling, extracurricular activities, expenses, etc. Mediation allows parents to be collaborative, creative, and flexible when discussing important parenting matters. It also ensures that parents, not the Court, are the decision-makers during your family transition. Attorneys and/or support persons may attend a mediation session if advance notice is provided and all parties agree. Any agreements reached in mediation do not become binding until submitted to and accepted by the Court. Mediation sessions generally last 2 hours, and parties participate in 1-3 sessions.
Early Neutral Evaluation (ENE) is a court-ordered dispute resolution process in which the parents are given a probable outcome of parenting-related litigation after an evaluation of their case. ENE can be especially helpful when one or both parents need a “dose of reality” regarding their case expectations. Once parents have received a neutral and informed opinion from an outside party, the goal is for parents and their attorneys to engage in more realistic and productive negotiations that ultimately lead to an agreement being reached.
ENE is only available to parties who are represented by an attorney. It consists of a single 3-hour session in which the Evaluators, both parties and their attorneys must participate. Prior to the session, parents must complete and submit a “Parenting Perspective Brief” which is shared with the Evaluators and the other parent. At the ENE session, each party and their attorney are given a designated amount of time to express what they are seeking concerning parenting and why. Once everyone has presented their side, the Evaluators will meet privately to discuss, followed by a discussion with the group to explain the Evaluators’ perceived strengths and weaknesses of each parent’s positions, and an overall prediction of what the outcome would be if the case were litigated. Similar to mediation, any agreements reached are not binding until they are properly documented, signed by the parties, and approved by the Court.
Parental Investigation & Guardians ad Litem:
Parental Investigations and Guardians ad litem are utilized to assist the Court in determining the child(ren)’s best interests when allocating parental rights and responsibilities, including custody and parenting schedules.
The Parental Investigation consists of an evaluation of each parent’s behavior, conduct, communication, family relationships, and criminal and Children’s Protective Services history. The parents are required to complete a parenting questionnaire, participate in an interview, and otherwise cooperate with the investigation. If the investigator feels it is necessary, they may interview the children and/or third parties such as teachers, doctors, or childcare providers. The Parental Investigation results in a final report which contains a recommendation to the Court regarding parenting. The report is admitted as the Court’s exhibit and as direct evidence. If either party wishes to cross-examine the Investigator, the Investigator must be timely subpoenaed by the requesting party. The Parental Investigation process takes approximately ninety days.
A Guardian ad litem (GAL) is appointed by the Court to represent and advocate for the best interests of your child(ren) until the case is closed. A GAL may be appointed upon request of either party or by the Court on its own accord. A GAL is responsible for:
(1) visiting your respective homes,
(2) meeting individually with the children and parents,
(3) speaking with family/household members and any other parties they deem necessary such as, teachers, counselors, doctors, friend,
(4) preparing a written report with recommendations related to custody, parenting schedule, and other parenting matters, and
(5) attending and participating in all hearings related to parenting.
Once a GAL has completed their investigation, a report is submitted to the Court (but not filed with the Court), and served upon the attorneys, or parties, prior to the trial. Oftentimes, parties and/or their attorneys are able to utilize a GAL report to facilitate a settlement. If a settlement is not reached, a GAL will testify on direct at the close of the trial and will be subject to cross-examination by both parties at the conclusion of their testimony.
The GAL deposit is $1,500, paid directly to the GAL either by one parent or split between the parents. From the deposit, the GAL is paid $125 per hour for their billable time plus expenses. The parents may be ordered to pay additional deposits as needed to pay the GAL fees and expenses. The GAL is required to provide a monthly statement of their fees to the parties (or their attorneys).
If you would like to learn more about these services and procedures, please visit:
https://domesticcourt.org/court-programs/
https://www.domesticcourt.org/wp-content/uploads/sites/36/2018/08/local-rules-2017.pdf
