Post Decree Proceedings

POST-DECREE PROCEDURE

After the Decree of Divorce or Dissolution is given, sometimes it is necessary to return to Court. People go back to Court for enforcement of their Decrees, or for enforcement or modification of children's issues.

If a party is not obeying the Court order, the other party can file a Motion to Show Cause/Motion for Contempt. This Motion explains to the Court what the order is and how the other party is not obeying the order, and asks the Court for an Order to Appear and Show Cause why he or she should not be found to be in contempt of the Court's order. That initial Order, commanding an appearance at an assigned a date and time to appear is always granted upon Motion.

The Contempt Motion must be accompanied by an Affidavit explaining in detail, from the moving party's point of view, exactly how the other party did not follow the orders. These Motions for Contempt are heard by a Magistrate, at a hearing which usually takes place anywhere from three to four weeks after the Motion is filed. Service of the Motion on the other party can be accomplished by certified mail service or personal service. It may be preferable to have the other party personally served so as to avoid certified mail being refused or not picked up, which causes a delay of the hearing because the other party must have seven days' notice prior to the hearing. Also, if imprisonment is sought as a punishment for failure to abide by the orders, the person must be personally served.

At the hearing, the person who filed the Motion (called the "moving party" or the "movant") goes first, and then the other party has time to defend. The parties can call witnesses, cross-examine the witnesses, and produce documentary evidence as well as challenge the evidence produced from the other party, at the hearing, called an Evidentiary Hearing. After the hearing, the Magistrate will make a Decision in writing, and it will be mailed to the attorneys for the parties, or to the parties themselves if they are appearing at the trial of the matter without counsel. An Objection to a Magistrate's Decision can be filed within fourteen (14) calendar days after the Order is file-stamped, and must contain specific facts or law supporting the overturning of the Decision. There is an automatic stay of the Magistrate's Decision unless a separate Motion is filed and the Judge approves a separate Order making the Decision effective despite an Objection being filed. A transcript of the hearing before the Magistrate must be filed with the Memorandum on the Objection. There will be a charge for the transcript by the Court Reporter.

The Judge will decide whether the Magistrate was correct or not, and issue a Finding. If there is no Objection, the Magistrate's Decision is effective when it is filed. People with children may find it necessary to return to Court to seek a change in the Court's Orders. Parties may file motions to Reallocate Parental Rights and Responsibilities (change custody), or to modify Parenting Time (visitation) or to change the financial responsibilities concerning the children (child support, tax exemptions, healthcare insurance, healthcare financial responsibility, etc.)

When a post-decree motion concerning parenting time or the allocation of parental rights and responsibilities is filed, there is an Initial Hearing set by the Court. At that hearing, the Magistrate will first determine whether the parents agree to the requested change. If there is no agreement reached, the Magistrate will refer the case to In-House Mediation with the Mediation Magistrate (someone different from the Magistrate assigned to the case) and a social worker from Family Court Services, and that mediation is to seek to reach agreement on all issues or some issues.

After In-House Mediation, there will be a Second Initial Hearing. If there has been a full agreement, if approved by the parties after consulting with their attorneys, the Magistrate determines whether it is in the children's best interests and if so, the agreement becomes a court Order.

If there is not a full agreement reached at the Mediation session, the Magistrate will then decide case management issues, determining what steps are necessary to hear and decide the matters raised in the Motion. The Magistrate may refer the case to Family Court Services (with a social worker different from the person at the In-House Mediation) to provide an evaluation and recommendations concerning the physical living arrangements for the child and parenting issues, the Court may assign a Guardian ad Litem to perform home-studies, interview the parents and the children and make recommendations in the child's best interests. The Court may refer the parents to community support services, psychological evaluations, substance abuse testing and evaluation, or any number of providers of services in the area. The goal of the case management phase of the case is to provide the Court with all necessary information so that it can make a determination in the child's best interests.

Once the case management steps are concluded or at least well underway, a Settlement Conference is held with the same Magistrate. The purpose of that court hearing is to determine whether the parties can agree with the recommendations of the Family Court Services social worker or GAL, or whether they can come to a negotiated agreement. If no agreement is reached, the case then proceeds to Evidentiary Hearing, which is really a Trial, when testimony and documentary evidence is produced and the Magistrate makes a Decision.

It is the worst possible scenario for the Court to have to make parenting decisions for you. The Court does not love yourchildren like you and the person you chose to have children with do, although the Court does seek to do what is best for the children. The primary decision makers for the children should be their parents, and asking the Court to decide where your children should live and when they get to see the other parent should be the course of last resort.

THIS INFORMATION IS INTENDED TO BE A BRIEF OVERVIEW OF THE PROCESS OF POST-DECREE MATTERS IN SUMMIT COUNTY, OHIO AND IS NOT INTENDED AS LEGAL ADVICE ON YOUR PARTICULAR CIRCUMSTANCES. IT IS ONLY INTENDED TO ASSIST YOU IN UNDERSTANDING THE PROCESS.

IF YOU SHOULD HAVE ANY QUESTIONS, PLEASE DO NOT HESITATE TO CONTACT THE OFFICE AND REQUEST AN APPOINTMENT.

Call today to schedule an appointment with Melissa Graham-Hurd.
Ohio Family Law attorney

Melissa Graham-Hurd
333 South Main St.
Suite 301
Akron, Ohio 44308
330-996-4099

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Melissa Graham-Hurd provides legal services for clients in Akron, Barberton, Bath, Canal Fulton, Canton, Copley, Cuyahoga Falls, Fairlawn, Green, Hudson, Jackson Twp., Lakemore, Macedonia, Massillon, North Canton, Norton, Peninsula, Springfield Twp., Stow, Twinsburg, Wadsworth, Wooster, Stark County, Summit County, Wayne County, and Medina County