When you separated or divorced, the custody of your children was either agreed upon by you and your spouse or it was determined by the court. The schedules, visitation time, child support, insurance, tax implications, and transportation and other relevant issues are in your parenting plan. Circumstances change, however, and whatever arrangement was worked out may need adjusting, or at least in you or your spouse’s mind. To obtain a change in custody, you or your Medina family law attorney will need to demonstrate to the court’s satisfaction that a change in circumstances pursuant to ORC 3109.04 has occurred. The change of circumstances to justify a change in custody must pertain to the custodial parent’s situation or in conjunction with the child’s now substantially changed medical, physical, or mental health condition.
Your custody arrangement may be either: 1) shared parenting and/or shared legal custody though there may be division on parenting time; and, 2) sole custody where one parent is the residential parent and has sole legal custody while the other may have visitation rights and support obligations. Legal custody pertains to having the responsibility for the material decisions affecting the child’s health, safety, education, and welfare.
What is a Change in Circumstances?
Any change in circumstances must have a direct and adverse impact on the child. Since the custodial parent’s status is presumed by the court to be in the child’s best interest and the status quo is favored, the evidence to the contrary has to be credible, significant, and material. It must pertain to issues or facts not previously known to or considered by the court.
If any of these circumstances or changes since the last court order or parenting plan was approved have occurred that have negatively or detrimentally impacted the child, and the court decides that there has been a change in circumstances, then the court must make a determination as to what is in the best interest of the child moving forward.
Determining the Best Interests of the Child
There are a number of factors your Medina family law attorney will have to prove to the satisfaction of the court, if advocating for the change in custody, as being in the child’s best interests. These are as follows:
• What the parents want
• The child’s wishes or concerns
• How the child has adjusted to the home, school and community
• The child’s interaction with friends, other family members, the parents, child care providers or anyone else who has had an impact on the child
• The mental and physical health of all parents and child
• Which parent will more likely facilitate and honor visitation
• If a parent has failed to make support payments
• Whether the custodial parent willfully denied visitation to the other parent
• If a parent is moving out of state
• If a parent has engaged in domestic violence
• If there is evidence of neglect or abuse by either parent
• If either parent requests it and the child is old enough, an in-camera interview with the child by the court without the presence of either parent
The Court Process
When the motion for a change in custody is filed and the parties do not agree, then the court may ask that you mediate the issues within the court and attempt a resolution. If no agreement is reached, then your Medina family law attorney can ask that a guardian ad litem (GAL) be appointed or the court will appoint one on its own. The GAL is a neutral person who will interview both parents, child, teachers, counselors, and obtain and review police, medical and school records. When the investigation is completed, the GAL will report the findings to the court and make recommendations as to what is in the child’s best interests.
Generally, a pretrial or settlment conference is then held to see if the parties will agree to the recommendations of the GAL. If there is no consensus, then a full evidentiary hearing, or trial, is held before the judge and/or magistrate and a decision is rendered. You and/or the other parent can object the decision of a magistrate within 14 days after issuance of the court order. Or if a judge made the decision, you can appeal the decision to the proper court of appeals.
In any event, you should speak to a Medina Family Law Attorney prior to filing or agreeing to any change in circumstances. You can call Parker & Erb, LLC at 330-725-4114 for a free consultation.