Parental involvement in children’s lives after a divorce or break-up is one of the primary concerns people have when they contact our office. When a child’s parents live together, usually “custody” isn’t an issue, but when parents live in separate households, parental rights become a much bigger concern.
In many states, when family law attorneys speak of “custody,” they are really talking about two different concepts: physical custody, which refers to the time share of the parents and where the children make their primary home; and legal custody, which refers to a parent’s ability and right to make major decisions for the children (think schooling, choosing medical providers, choice of primary religious practice, etc.). Depending on the law in that state, both physical and legal custody can be held by one parent (sole custody) or both parents (joint custody), or any division in between.
In Ohio, we don’t use the “C” word between parents. “Custody” implies ownership and control (especially control of the other parent’s access to the children), and we believe that is backward thinking. In 1991 our language changed from custody to “parenting,” and the statutes adopted at that time changed the terms to “sole residential parenting” and “shared parenting.” Both terms refer to what other states would consider “legal” custody: they focus more on decision-making. Parenting time (Ohio’s term for the division of physical custody) can be any number of configurations regardless of which parent holds the authority for decisions.
What is Sole Residential Parenting?
In Ohio, sole residential parenting, where just one parent is designated as the “residential parent” means that the designated parent has the sole legal authority to make major decisions for the child without input from the other parent. Sole residential parenting is awarded when neither parent proposes a Shared Parenting Plan that is acceptable to the court or when the court finds that shared parenting is not plausible or in the child’s best interest based on multiple factors.
Some people hear the phrase “sole residential parent” and imagine that it means that the child physically stays only with the residential parent, or physically stays with one parent with very minimal contact with the other parent. That is not true. Even if one parent has sole residential responsibility for a child, the other parent will have continuing contact with a child. This continuing contact is called “parenting time.” We as lawyers (and the language within the statute itself) do not use the word “visitation” because a parent is not a visitor in his or her child’s life. It is extremely rare that no parenting time provision is made, and is reserved for extraordinarily dire circumstances.
Parenting time arrangements vary according to the age of the child, the child’s activities, the parents’ work schedules, and many other factors. The best parenting time plan is one that parents can agree upon and that fits the child’s needs. Each county has a standard parenting time order, or several of them, which are imposed only when the parents cannot agree on a schedule. In a scenario where one parent is the sole residential parent, every parenting time schedule should provide an opportunity for the child to maintain a relationship with the non-primary parent, and can include weekdays, weekends, holidays, days of special meaning, breaks from school, and summer vacation or any combination of those times.
What is Shared Parenting?
Shared parenting in Ohio is the typical default position of the courts, though they are not required to order shared parenting. In shared parenting, each parent is the “residential parent and legal custodian” of the child at all times, no matter where the child is physically located. This means that major decisions for the child are typically shared in some way.
Shared parenting is an attitude, rather than a schedule. It entails decision-making for the child’s benefit, working together, and communication, rather than physical possession of the child. This sharing of decisions is a spectrum- anywhere from one parent discussing the options with the other parent but still holding the final say over what actually happens all the way up to parenting plans which require both parents to mutually agree on everything for the child.
In Ohio, the court must at least consider a shared parenting arrangement if either or both parents request it, and the parent (or both of them), who requests shared parenting will be required to submit a proposed shared parenting plan to the court. After a proposed plan is submitted, the court may accept it, or may reject it and either request a proposed parenting plan from the other parent or direct reforms to be made if the proposed plan does not meet the child’s best interests. If the parents are able to agree on one proposed plan, parents are free to jointly submit a proposed parenting plan; this happens most often.
What Goes in a Proposed Parenting Plan?
A proposed parenting plan must set forth details relevant to all aspects of the child’s care. These include specifics of physical living arrangements and parenting time including weekdays, weekends, holidays, days of special meaning, breaks and recesses from school, and how transportation for the child between the parents’ homes is to occur.
A proposed Shared Parenting Plan must also specify arrangements and decision-making for school, such as where the child will attend school, or which parent will be the “residential parent for school purposes” as required in some counties, or which parent’s residence will be the legal residence of the child for schooling, or an agreement to continue attending a named school system.
A “residential parent for school purposes” traditionally implies that the child will attend school in that parent’s district of residence and that parent has the opportunity to make decisions for the child such as tutoring, approving IEP Plans, 504 Plans, and changing the child’s school if desired. That decision-making can be limited with proper language to only imply enrollment in the district of residence if a plan is drafted correctly and in accordance with that county court’s requirements. Private school enrollment and tuition responsibilities can be addressed in the educational provisions and lately, we have been addressing remote learning arrangements and guidelines for parents to facilitate such learning.
A proposed Plan must also provide for the financial responsibilities of the parents for the child’s welfare. This includes child support (if any), the requirement of one or both parents to provide for health insurance, division of tax exemptions, division of payment of out-of-pocket healthcare expenses, and any additional direct expenses necessary. This is true even if parents divide parenting time perfectly 50/50. Child support does not statutorily disappear because you physically have your child 50% of the time. Don’t barter your kid for money. It’s not a good position to take.
The parents who make Shared Parenting Plans have the benefit of meeting the child’s needs in ways other than child support calculated by the child support guidelines. A guideline worksheet must still be prepared, but the parents have the ability to deviate from the worksheet due to direct expenditures for the child’s benefit. This can mean partial child support plus other expenses are divided, or can mean no child support but all other expenses are divided by a formula that makes sense for the family, considering the incomes of each parent, which parent pays the cost of health insurance for the child, how the parents pay for childcare, and several other reality-based considerations.
A proposed Plan must address decision-making responsibilities for healthcare. This includes ordinary medical decisions like well-checks, major medical decisions such as elective surgeries, and choice of healthcare providers.
Parents may agree to work together to make healthcare, educational, religious, and other major decisions for the child together. Parents may also agree to allocate decision-making between them, such as one parent having the final say on education and the other parent having the final decision on healthcare.
Parenting Time in a Shared Parenting Arrangement
Typically, in a shared parenting arrangement, the child has parenting time with each parent, which can be very similar to, or very different from what would have been the parenting time arrangements under sole residential parenting for the child. Shared parenting does not necessarily mean a 50/50 division of time.
The goal is always to maintain the relationship between the parents and the child, just like it had been when the parents lived together, as much as possible, and that usually means frequent stays with each parent. This has to be balanced with stability for the child though, as switching homes every day is disruptive even for babies and may not be in the child’s best interests. Arranging parenting time should fit the child’s schedule, the parents’ schedules, and serve the child’s needs overall. Shared parenting schedules offer great flexibility.
The overriding concern, regardless of the type of parenting plan involved in your case, is the welfare of the child. Shared parenting means that the children should feel they have two involved parents, who work together for them. In shared parenting, one parent is not able to control the other parent by limiting access to the child, or by limiting information available to the other. Neither parent should have all the leisure time (typically weekends) with the children, while the other parent is the weekday parent supervising homework, school readiness, and household chores; in shared parenting both parents have “work” to do and “down time” to enjoy.
In shared parenting, because both parents are the “residential parent” at all times, the parents are on equal terms for public and private authorities, for major and routine matters, from school personnel, doctors, friends and neighbors.
The “Best Interests of the Child” Standard
All decisions about parental rights and responsibilities, as well as division of parenting time, stem from the analysis of what would be in the best interests of the child. Ohio courts consider a number of factors in deciding what would be the residential arrangement in a child’s best interests. These include:
- The parents’ wishes regarding the child’s care;
- The child’s wishes and concerns as expressed to the court;
- The child’s interaction and relationships with parents, siblings, and any other person who might have a significant impact on the child’s best interests;
- The child’s adjustment to home, school, and community;
- The mental and physical health of all involved;
- Which parent is more likely to honor court-approved parenting time rights;
- Whether either parent has failed to make all child support payments required under a court order;
- Whether each parent or a member of their household has been guilty of child abuse or neglect;
- Whether either parent has denied the other parent’s right to parenting time established in a court order;
- Whether either parent has a residence, or is planning to establish one, outside Ohio.
When determining whether shared parenting is appropriate, courts will also consider parents’ ability to work together for the child’s sake; whether the parents encourage the child’s relationship with the other parent; how close the parents live to one another; whether there is any history of, or potential for, domestic violence; and the recommendation of the guardian ad litem if one is involved in the case.
These lists are non-exhaustive, and as with any legal involvement, it is incredibly helpful to know your audience: what county are you? Who is your magistrate? Who is your judge? Who is opposing counsel? These are all non-legal factors that make it so important not to try and fight this on your own. Even if you and your soon-to-be ex are amicable, drafting your own parenting plan is risky as, typically, holes are left and arguments can quickly ensue.
If you have questions about Ohio shared parenting laws, or whether sole residential responsibility is best in your case, please contact Graham-Hurd Law to schedule a consultation.