Single mothers do not always retain “sole custody” in Ohio.

In Ohio, the father of a child born to an unmarried woman has no legal rights to the child until he obtains a court order granting him parenting time and/or custodial rights.  When a child is born to an unmarried woman, she is the sole residential parent and legal custodian of the child pursuant to Ohio Revised Code §3109.042 .  This is a rebuttable statutory presumption. Single mothers do not always retain “sole custody” in Ohio.

A father must petition a court for parenting time and/or parental rights and to establish paternity.  A juvenile court will the exercise jurisdiction over the parents and the minor child and issue orders that it determines are in the best interest of the minor child.  Depending on the facts of each case, a father may obtain equal rights to make decisions in the life of the minor child (also known as shared parenting).  It is a myth that unmarried fathers will only be awarded “visitation” with their child.  In many cases, fathers are able to obtain shared parenting and equal decision making in regards to their child.

In order to obtain parenting rights to a child born to an unmarried mother, a father must establish paternity.  There are several ways an unmarried father can establish paternity in Ohio.  Paternity may be established by affidavit which is usually done at the hospital time of the child’s birth.  This can also be done later at a local registrar, health department or Child Support Enforcement Agency.   Establishing paternity through the Child Support Enforcement Agency is not usually recommended unless the parents want to start child support proceedings.  If paternity is established via affidavit, the mother’s consent is required, and the father gives up his option to have DNA testing before paternity is established.  This is method is not recommended if the father has any doubts regarding his paternity of the child and can have long-lasting effects if it is later determined that he is not the father of the child. 

Another method to establish paternity is to participate in DNA testing either through the child support enforce agency (which requires the mother’s consent unless the agency initiates child support collection action on its own) or by filing an action in court to establish paternity as part of the complaint to establish the allocation of parental rights and responsibilities (formerly known as custody).  A court can then order paternity testing and the mother’s consent is not required.  This method alleviates any doubt regarding paternity of the minor child at the beginning of any legal proceedings.

It is important to request an order establishing parenting time with the minor child when requesting the court to determine custody as unmarried fathers have no rights to parenting time until they obtain an order from the court.  Ohio law provides that once parentage has been established, a court must consider the mother and father as on equal standing when determining the allocation of parental rights and responsibilities.  Again the court is guided by statutory factors to determine the parenting time of each parent with the minor child that is in the minor child’s best interest. 

Contact Joseph Stafford, 216.241.1074, to further discuss your rights and to determine a plan of action that is best for you and your child.  

www.StaffordLawCompany.com 

Administrative Order Issued By CSEA

Contact our office for legal assistance if the local child support enforcement agency has issued an Administrative Order that you believe is in error.  The child enforcement agencies (CSEA) are governed by the Administrative Code which provides that CSEA shall use the basic Ohio child support guidelines schedule when calculating and/or adjusting child support obligations.  The Code orders that CSEA shall not deviate from the guidelines.  If a deviation is requested by either party, the requesting party must file the request with the appropriate court.

If you believe that the CSEA Administrative Order is based on erroneous information and/or incorrect, it is important to contact an attorney within the timeframe set forth in the Order in order to preserve your right to have the child support determination be reviewed by a trial court.  

To schedule an appointment with Joseph Stafford, call 216.241.1074 or visit Stafford Law Company's web site www.StaffordLawCompany.com

Beware of the Dangers of Recordings in Custody Cases

In 1968, Congress enacted the Wiretap Act of 1968 to prohibit all interceptions (and disclosure) of oral and wire communications, except those specified in the Act and to impose civil and criminal penalties for violations of the Act.  Many states have enacted their own wiretap statutes in response to the Wiretap Act.  The Wiretap Act and its state counterparts provide protections against communications (audio, video, and/or other electronic oral communication) such as secretly recorded telephone conversations.  Recordings obtained in violation of the Wiretap Act are prohibited from use as evidence in legal proceedings.

Parents involved in highly contentious domestic relations matters, and most specifically, custody disputes, often are faced with the dilemma of whether they can and/or should record their spouse and/or children.  This dilemma has been further complicated with the fact that some courts have permitted Guardian Ad Litems to consider illegally obtained wiretap evidence in child custody recommendations to the court, circumventing the protections afforded to citizens in the Wiretap Act.  The new technologies available to individuals, such as FaceTime, Skype, and other virtual visitation aides, greatly expand the ability and opportunity for parents to obtain recordings of the other parent to gain an advantage in child custody litigation.  The admission of this type of evidence directly violates the wiretap statute’s exclusionary rules and allows inadmissible evidence in through the back door by permitting Guardian Ad Litems to consider the illegally obtained evidence in making their recommendations.

It is extremely important for divorce litigants to understand the potential liability for illegally recording their spouse and/or their children.  Even if the domestic relations court permits a guardian ad litem to review and consider the illegally obtained evidence in rendering their recommendation to the court for child custody purposes, the liability for violating the wiretap act can extend in civil court.  Although a domestic relations court permitted the use of recordings obtained by a mother in violation of the Wiretap Act, the father in Illinois sued the mother of his children under state and federal wiretap statutes and the court held the mother liable for violating the Federal Wiretap Act.  Lewton v. Divingnzzo, 772 F. Supp.2d 1046, 1050. 

Learn the lesson from Donald Sterling of the L.A. Clippers. Consult with your domestic relations attorney before you subject yourself to civil liability.    

For more information on this topic, or to schedule an appointment with Joseph Stafford, call 216.241.1074 or visit www.StaffordLawCompany.com

The Process For Registering Your Parenting Order With A Court In The State Of Ohio For Enforcement

If you have a custody or visitation order from another state and have resided in Ohio for at least six months, you should seek the assistance of a lawyer to assist you with the process for registering your parenting order with a court in the state of Ohio for enforcement.

By registering the out-of-state decree and/or judgment entry with an Ohio court, you then have the right to have an Ohio court and/or police officer, if necessary, enforce your decree just as they would if it were made by an Ohio court.  However, it does not mean that jurisdiction has automatically been transferred to Ohio or that an Ohio court can modify the order.  Ohio courts can only enforce the order.  The registration of an out-of-state order can be contested, but only on a very limited basis. 

To register the out-of-state decree for modification requires a different set of factors, including that Ohio has become the home state (the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately preceding the commencement of a child custody proceeding) for any minor children.  Contact Joseph Stafford at Stafford Law Co., L.P.A. to discuss whether your matter meets the criteria for the registration of an out-of-state decree for modification purposes.   

For more information, or to schedule an appointment contact Joseph Stafford at Stafford Law Company 216.241.1074.

Collaborative Family Law

Collaborative divorce is a  process designed to make more efficient the process for ending a marriage, and to encourage clients and attorneys to reach a resolution quickly, avoiding expensive litigation.  Attorneys have been practicing variations of collaborative divorce in Ohio for a long time.  However, Ohio recently adopted the Collaborative Family Law Process Act (R.C. §§ 3105.41 to 3105.54). The Act defines the Collaborative family law process as a “procedure intend to resolve a matter without intervention by a court in which the parties sign a collaborative family law participation agreement and are represented by collaborative family lawyers.”   

A Collaborative family lawyer is a “lawyer who represents a party in a collaborative family law process but does not include a lawyer who is a public official and who does not represent individuals other than public officials in their official capacities”.  Attorneys that practice litigation can also be collaborative divorce attorneys.  An attorney does not have to be in an association, club or specialized firm to practice collaborative family law.

In order for the collaborative process to be successful, everybody’s motivation and financial goals must be aligned.  In the event the parties do not reach an agreement, the Collaborative Family Law participation agreement and the Act require that the attorneys cannot represent the parties in any court proceedings.  Therefore all the time spent in selecting an attorney that each party likes and trusts and all the time and money spent negotiating trying to reach resolution will be lost if no agreement is reached.

The lawyers at Stafford Law have been employing collaborative law techniques to resolve cases for their clients even before the adoption of the Collaborative Family Law Process Act and are skilled at reaching the successful resolution of your divorce matter and achieving your family law goals.

For further information on this topic, or to schedule an appointment with Joseph Stafford call 216.241.1074 or visit Stafford Law Company's web-site at www.StaffordLawCompany.com

A Departure From Marker v. Grimm When Calculating Child Support With A Combined Income Of Greater Than $150,000?

  The Eighth District Court of Appeals issued a recent decision marking a substantial
departure from the well known law created by the Supreme Court of Ohio in Marker v. Grimm,
65 Ohio St.3d 139 (1992).

  In Marker, the Supreme Court of Ohio determined that any court or agency computing a
child support order must follow the statutory requirements literally and technically in all material
aspects. This includes computing a child support computation worksheet and making it a part of
the record (i.e. attaching it to the order).

 The issue being considered by the Eighth District Court of Appeals in In Re: J-L.H., 8th
Dist. No. 100469, 2014-Ohio-1245, was that an administrative order did not include a child
support computation worksheet, and on this basis the trial court dismissed the agency’s
complaint. While first agreeing that Marker applied to the matter being decided in In Re: J-L.H.,
the court of appeals made a sharp departure from the long standing precedent. The court of
appeals reversed the trial court’s decision and decided that a child support computation
worksheet was not necessary. The court of appeals further indicated that in cases where the
combined gross income of the parties is less than $6,600 or more than $150,000, a child support
computation worksheet is not required to be used by the court or agency computing child
support. The court of appeals specifically held (even though it was not deciding this issue) that
“under R.C. 3119.04(B), courts are not required to use the guideline worksheet to determine the
appropriate amount of child support (as long as they make a finding that the amount is not less
than the $150,000 equivalent).”

 This holding will prove problematic as under the statute and Marker a trial court is
required to compute and utilize a basic child support computation worksheet when analyzing the
proper amount of child support.

 The In re: J-L.H. decision is available on the Supreme Court of Ohio's Website at
http://www.sconet.state.oh.us/rod/docs/pdf/8/2014/2014-ohio-1245.pdf


For more information regarding these issues, and the process involved, contact Joseph Stafford at 216.241.1074 or visit www.StaffordLawCompany.com