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Does My Child’s Opinion on Custody and Parenting Time Matter?

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).

Annulment: Is Sterility a ground for an annulment?

In this video, Sarah continues sharing about Annulment laws. Make sure to LIKE and SUBSCRIBE!

Transcript: Person Speaking: Sarah
Sterility is not the same as impotence and is therefore, not a ground for an annulment in Ohio.

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Annulment: Is impotence a ground for an annulment in Ohio if…


In this video, Sarah answers another common question about Annulment Law. Make sure to LIKE and SUBSCRIBE! We have new content weekly and as always, we welcome your comments!

Transcript: Person Speaking: Sarah
If one or both of the spouses were under the age of consent at the time of the marriage, if the marriage was unconsummated because of permanent or incurable impotence which was not known at the time of your marriage, or if one party was unable to consent to the marriage due to incompetence or mental capacity, or if the consent to the marriage was obtained through force or fraud. Those types of marriages are voidable in Ohio and are not recognized. You can bring an annulment action on those instances.

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TIBBS LAW OFFICE
1329 E. Kemper Rd. #4230
Cincinnati, OH 45246
P: 513-793-7544
F: 513-297-7544

 

Equal Access: Accessing my Child’s Records

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?

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.

 

Divorcing with Children in Clermont County —What to Expect from the Court’s Court-Based Support Services

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:

  1. Family Service Assessment
  2. Mediation
  3. Early Neutral Evaluation (ENE)
  4. Guardian ad litem (GAL)
  5. Parental Investigation

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

  • DR 26. Medical/Psychological/Psychiatric Evaluations
  • DR 28. Family Service Assessment by the Court
  • DR 29. Appointment of Guardian Ad Litem (GAL)
  • DR 30. Mediation of Parenting Responsibilities
  • DR 31. Early Neutral Evaluation

How do I move residences with my child during a divorce or custody case?

How do I move residences with my child during a divorce or custody case?

During a divorce or custody matter, the court puts in place orders that restrain the parties from moving to another county with any minor children that are subject to the case at hand. A party is generally allowed to move to a different address within the County, so long as they file a NOTICE of Relocation with the relevant court. This serves to keep the other party aware of the residence of the child and it will update the Court’s computers for future mail from the Court.

A party may not move outside of the county with the minor child if there is an order involving the child in place unless the party files a MOTION to Relocate with the relevant court. This motion will need to be heard in court if the non-moving party disagrees with the child moving. Even if there is an agreement allowing a parent to move outside of the County, the parties still need to agree to new terms regarding transportation and parenting time.  If the parties are unable to agree on all terms, the Court will hold a trial and hear testimony.  The court will then make a decision based on what is in the best interest of the child and it will determine if the filing party may relocate outside of the county with the minor child.

 

How do I protect myself financially once a divorce is filed?

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, are 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 contribution 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.

 

 

What is a temporary order?

What is a temporary order?

A temporary order is an order from the court, issued at the beginning of a divorce or custody motion that controls the terms by which the parties operate until the case is resolved. Temporary orders are most commonly found in divorces where a party asks the court to give a temporary parenting order so that the parties do not have to wait for the outcome of the case to have a formal parenting time schedule. Temporary orders designating custody, parenting time, and child support resolve issues that parties usually have in the beginning of a case but are only in effect during the pendency of the divorce. Temporary Orders involving only parenting terms generally do not require a hearing.  The Court uses the affidavits filed by each of the parties to issue these orders without holding a hearing. Either party may ask for a hearing if they would like to contest the orders that the Court puts in place.

Parties can also ask for temporary spousal support or payment of debts. Unlike custody, parenting, and child support, motions involving temporary payments of debt or spousal support generally require a hearing before there is an order issued.

Temporary Orders are not final and they typically last only until the final decree of divorce has been journalized.

Divorcing with Children in Warren County — What to Expect from the Court’s Dispute Resolution Services

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. As you begin the divorce process, it is important to be aware of which dispute resolution services are offered, as they can potentially improve your overall divorce process and outcome. Certain dispute resolution services have the potential to 1) allow you and your ex to decide the outcome of your case, rather than the Court, 2) avoid litigation, and 3) reduce the overall costs and time required to complete your case. The Warren County Domestic Relations Court currently offers the following four services:

  1. Mediation
  2. Early Neutral Evaluation (ENE)
  3. Psychological or Psychiatric Examinations
  4. Guardian ad litem (GAL)

Generally, these services can be ordered or requested at any point in the process, including before or after a divorce, as parenting, property, or support 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. Currently, ENE is the only service offered that can address property and support issues, while the rest are reserved for parenting matters.

Mediation & Early Neutral Evaluation (ENE):

In the Warren County Domestic Relations Court, both mediation and Early Neutral Evaluation (ENE) are designed to facilitate a settlement, meaning you can negotiate the terms of your case without the Court deciding for you. It also means your case can potentially be completed much sooner than through the litigation process. They are both confidential processes, and the Court staff who participate would not testify or be a hearing officer at any future hearing. There is no additional cost for mediation and ENE services provided by the Court.

Mediation occurs between the parties and a Magistrate who is a trained mediator. This Magistrate would not be a hearing officer in your case. Attorneys and/or support persons may also attend if advance notice is provided. Any agreements reached in mediation do not become binding until submitted to and accepted by the Court in the appropriate format, such as a Shared Parenting Plan or Agreed Entry. Parties may engage in as many sessions as needed, so long as the mediator agrees that additional sessions are productive.

Local Rule 5.3(A) defines the Court’s ENE service as, “a Court ordered dispute resolution process in which the Early Neutral Evaluator provides an evaluation of the probable outcome of any parenting, property or support dispute.” Unlike mediation, ENE can be used to address any parenting, property, or support issues. The ENE process involves the parties, their attorneys (if represented), and the Evaluator, currently Magistrate Iversen. The Evaluator involved in your ENE session would not be a hearing officer in your case. Parties are first required to complete and submit a brief one week prior to the session, which gives the Evaluator an overview of what each party is seeking and why. During the ENE session, the parties and their attorneys are each given their own designated time to argue their respective positions, without the constraints and formalities of an actual trial. Once the parties and their attorneys have presented their positions, the Evaluator then provides an evaluation of the probable outcome of the case. Following the evaluation, additional time is built into the session to allow the parties to negotiate based upon the evaluation just received. This opportunity can be extremely productive once the parties have been given a realistic assessment of their case. ENE sessions are scheduled for 3-4 hours, followed by a scheduling conference to notify the hearing officer whether any agreements were reached as a result of ENE.

 

Psychological/Psychiatric Examinations & Guardians ad Litem (GAL):

Psychological and/or Psychiatric Examinations and Guardians ad litem (GAL) are utilized to assist the Court during a trial to allocate parental rights and responsibilities, including custody and parenting schedules.

If the Court determines that an evaluation of a party is needed before it can properly allocate parental rights and responsibilities, the Court will order a psychological or psychiatric examination, and the appropriate professional will be appointed by the Court. Attorneys are not permitted to communicate with or provide documentation to the professional unless approved by the Court. Once the evaluation is completed, the professional will provide the Court with a written report and recommendations at least 30 days prior to the hearing. The report is also provided to the attorneys, or the parties directly. The report is accepted into evidence as direct testimony, and the professional is considered to be the Court’s witness. If either party wishes to cross-examine the professional, they must facilitate the professional’s appearance at their hearing, and be responsible for any fees associated with their appearance. The Court will allocate the costs of the evaluation between the parties.

A Guardian ad litem (GAL) is appointed by the Court to represent the best interests of your child(ren). A GAL is often a family law attorney (although not a requirement), who has satisfied specific training requirements set forth by the Supreme Court of Ohio. A GAL will visit your respective homes and speak with the family members individually and any third parties as needed or requested by the parents (teachers, doctors, friends, etc.). A GAL may be appointed upon request of either party or by the Court on its own. 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, at least fourteen days prior to the hearing. A GAL report is accepted as direct evidence. If either party wishes to question the GAL at the hearing, they must subpoena the GAL and will be responsible for their fees related to their attendance. Absent a subpoena, a GAL will not attend the hearing. While other counties determine a standard rate for their GALs, GAL’s in Warren County are permitted to set their own reasonable rate, which ranges generally from $100 to $200 per hour. Absent extraordinary circumstances, total GAL fees are typically expected to be around $1,500 excluding any Court appearances.

 

If you would like to learn more about these services and procedures, please visit:

https://www.co.warren.oh.us/domestic_relations_court/Forms/ENE.pdf

https://www.co.warren.oh.us/domestic_relations_court/LocalRules.pdf

  • 5 Appointment of Guardian Ad Litem (GAL)
  • 6 Psychological or Psychiatric Examinations
  • 2 Mediation
  • 5.3 Early Neutral Evaluation