Child Custody Archives · Charles Bendig Law®

Grandparent custody rights; What you need to know.

When the parents of a child divorce, sometimes one of the parents tries to keep the grandchild or children away from their former spouse’s parents. In other words, the mother may keep the children away from the paternal grandparents or vice versa.

What is in the best interest of the child is always the underlying consideration the Ohio courts take into account when making decisions about the rights of grandparents. Ohio provides statutory support for grandparents’ legal rights, but it’s not all-inclusive. “Best interest” decisions begin with the language of the court order or mediation agreement and apply to all visitation and custody rights decisions.

The 11 Factors that apply to all visitation and custody rights in Ohio are:

The wishes and concerns of the child’s parents
The child’s age
The child’s adjustment to home, school, and community
The prior interaction and interrelationships of the child with parents and other relatives
The location of the grandparent’s residence and the distance from the child’s residence;
The childs’ and parents’ available time
The wishes of the child (if the court has interviewed the child)
The health and safety of the child
The amount of time that a child has available to spend with siblings
The mental and physical health of all parties
Whether the person seeking visitation has been convicted of or plead guilty to any criminal offense involving an act that resulted in a child being abused or neglected.

If a grandparent is denied visitation, a court is under no obligation to tell the grandparents why the visitation was denied. However, the judge might issue a written order explaining the decision. If there is no such written order, any party can ask the judge for an explanation. This is called a “finding of fact and conclusion of law.”

Grandparent custody right FAQs

If my son/daughter is divorced or going through a divorce, do I have visitation rights to see my grandchild?
Ohio law provides a grandparent with certain visitation rights with their grandchildren. A grandparent can file a motion with the court in a divorce, dissolution, legal separation or annulment for grandparent visitation rights. After hearing, the court will grant grandparents their own individual visitation rights involving a child if the person has an interest in the welfare of the child and if the court determines that the granting of the companionship for visitation rights is in the best interest of the child.

If my son/daughter is deceased, do I have visitation rights to see my grandchild?
The short answer is yes. Grandparents of a deceased parent can receive visitation rights. Ohio law states that if either the father or mother of an unmarried child is deceased the grandparents have the right to ask for visitation. The court will decide if it’s in the best interest of the child.

What if the parents of my grandchild were never married?
Yes, Ohio law provides visitation rights to a grandparent when the child’s mother is unmarried. The law says if a child is born to an unmarried woman, the grandparents have a right to request visitation rights. This includes both the biological father’s parents and mother’s parents. The court will determine what is in the best interest of the child with respect to any request.

What can be done if my grandchild is removed from the jurisdiction?
Any visitation request needs to be made in the Ohio County where the child lives. The only exception would be if a case had already been initiated in another county, then that county would retain jurisdiction.

What if my grandchild does not want to visit me?
It is up to the court to make a determination on this issue.

Do I have any financial liability if my grandchild visits me?
No. Child support is strictly between the biological parents.

If my grandchild is injured during a visit with me, can I get medical care for them during that visit?
Yes. If there is a court order allowing visitation and should the child need emergency medical care while under the care of a grandparent, they would be allowed to obtain medical treatment for the child while in their care.

Can I obtain legal custody of my grandchild?
It depends. In certain circumstances, Ohio law does allow a grandparent to obtain legal custody.
The court would need to determine the biological parents to be unfit.
The definition of unfit in Ohio generally means habitual drunkenness, habitual drug abuse, abandonment and other such issues that would again require the court to make a finding of unfitness.

What if my grandchild doesn’t live in Ohio?
The state of the child’s residence is considered their “home state”, and that state would have jurisdiction as to whether or not visitation rights would be granted. Each state has different laws as pertains to visitation rights and the state with jurisdiction would need to be contacted in order to ascertain what if any rights the grandparent has in that particular state.

What if my grandchild already lives with me?
The law provides a solution for the situation where a child is living with the grandparent and the parents of the child can’t be found. Although, this is only a temporary solution and is not the same as legal custody, it does allow a grandparent to do what’s necessary for the child such as, enrolling the child in school, taking the child to the doctor, etc.

The law states that if a child is living with a grandparent who has made reasonable attempts to locate and contact both of the child’s parents, guardians, or custodians but has been unable to do so, the grandparent may then obtain the authority to exercise care and physical custody by executing a caretaker authorization affidavit.

The more common scenario is when grandparents are raising their grandchild or grandchildren with the knowledge and consent of the biological parents. Ohio law provides that in certain circumstances a parent may give a grandparent a Power of Attorney to enroll the child in school, care for the child’s medical needs, etc. This is similar to the caretaker affidavit, however, the parent is present and willing to execute a power of attorney.

Furthermore, the affidavit must be executed by both parents if they’re married and living together, if the child is subject to a shared parenting order or if the child is subject to a custody order.

Contact us to discuss your rights as a grandparent.

For over 38 years, we have successfully represented clients in child custody and visitation matters. These cases are often emotional and profoundly consequential to our clients and the children. We ensure that you know the strengths and weaknesses of your case so you can make the best decisions for your family.

In the Columbus Ohio area, call us to discuss your unique challenges. (614) 878-7777

What happens to her if something happens to you?

All, Child Custody, Probate & Estate, Wills

It sounds simple; You just want to give your assets to the people you love in a way that provides for those that can’t provide for themselves and avoids fighting so the family stays strong.

Should I download a Will template or should I meet with a lawyer?

Family structures have gotten pretty complex in the last few decades. With many couples electing to not marry and live together with or without having children, with divorce rates over 60%, and remarriages extending core families, there are lots of horror stories stemming from Wills that weren’t written properly. Loopholes and estate plan ambiguity can provoke your loved ones to contest your Will and file lawsuits to claim what is “rightfully theirs”. Ohio inheritance laws update frequently. Uncle Sam may (but not often) want a piece, how can you minimize the tax? An estate lawyer can be extremely helpful.

What is actually yours to give?

If you’re married, divorced with children, or have contracts (i.e. prenuptial agreements and/or certain trusts), you may have restrictions.

What should your Will include?

Here are a few basics:

Beneficiaries are people you choose to receive real property or personal property in the form of cash or assets. It’s common to name your spouse, children, friends, charities, or other family members.

Executor is the individual who will carry out what’s written in your Will. You can choose whomever you like, but most people choose a responsible friend or family member. If you don’t name an executor, often this job falls into the hands of an administrator who has to pay for a bond.

Parental guardian: If you are caring for young children, it’s important to name the person(s) you want to raise your children should you pass away. Since this is a major life endeavor for the person or people you name, list a few individuals in case one or two of them are not in a position to take on this role at the time of your death.

What should be left out of your Will?

Conditional gifts: You are not allowed to leave conditional gifts, such as bequeathing money to a beneficiary on the condition that they get married, get divorced or make some other life change. Although it may make for a good movie plot, in real life, it’s just not legal.

Final arrangements instructions: Your Will is typically not read until after the funeral, so your requests may not be carried out.

Allocate property to pets: Pets cannot legally inherit any assets. This kind of thing happens more often than you would think! Create a Pet Trust and leave assets in the care of a Trustee for the benefit of your pets.

Should I include a personal note?

You can attach a personal note to your Will as a way to say goodbye to loved ones. It’s a good way to personalize a somewhat sterile document. Some people leave a video.

Your Will may not be the only part of an estate plan. Various trusts can be of enormous help and may have advantages over a Will. You also can leave assets to transfer at death outside of Probate Court. The most important thing is to make sure your Will is as clear as possible so that your wishes are fulfilled correctly.

Contact Estate Planning Attorney Chuck Bendig to get started.

When parents battle over school districts

Child Custody, Divorce/Dissolution

When parents separate or divorce, it can be difficult to agree on various issues. This time of year, children are starting school again and a relatively new disagreement that’s emerging is over the school district the child should attend.

For example, the mom may argue that the child should attend the school district where she lives, but the dad may then argue that the child should attend the school district where he lives. If no agreement is reached, litigation is sometimes the only option.

Before a parent can jump to litigation, they need to know what the law says. The first thing is that when parents reside in different school districts, the child may attend school in the district of residence of the parent with whom the child lives for the majority of the time.

That means that the school district of the primary custodian is the school district where the child will attend public school. That may seem pretty straightforward. However, there are no easy solutions to any custody issue.

There has been a recent push towards 50/50 physical custody and many parents are exercising this type of arrangement. In cases like this, the parents may choose which of the two school districts the child will enroll in for the school year. This is where the fight may be joined.

If one parent resides in a better school district than the other, the smart decision is to agree that the child will go to school in the better district. Typically, the court will hold that the child should attend the higher-ranked school district. However, proving which is the “better” school district often proves to be difficult.

If both parents live in school districts of similar quality, then the decision becomes more of a toss-up. It might be best for the child to go to school in the district where they already know some of the other students or where they have been involved in activities before.

However, unless the parents agree, it’s going to be tough for the court to choose between two school districts of equal caliber.

It’s for that reason that many cases regarding the choice of school district end up becoming a fight for primary custody.

If you’re a parent with partial physical custody, you’re probably thinking that you have little decision making power when it comes to the school district. You might live in a prominent school district and the other parent may live in the lesser district.

Just because you have partial physical custody, doesn’t necessarily mean the child cannot attend school in your district. Even though a child’s school district is the one of the parents with which the child primarily resides, that can be altered through a court order or a court-approved custody agreement.

A parent with partial custody can negotiate with the other parent to agree that the child attends the high-ranking school district, or the partial custody parent can pursue litigation. The courts take education very seriously.

When it comes down to it, the determining factor will be what is in the best interest of the child. That means giving the child the best education available.

4 Mistakes Made During a Custody Battle

Child Custody, Divorce/Dissolution

Anytime parents separate and are unable to work out a mutually agreeable parenting plan for their family, they often choose to go to Court seeking a child custody order. When that happens, parents are putting the decision of their children’s future into the hands of a judge who will now decide what plan will be in the best interests of the children.

As you can imagine, a determination like this is very difficult for the judge. Especially when often times they’re faced with allegations from each parent about how the other is unfit or neglectful. The judge must consider the evidence before they come to a conclusion without having any actual personal knowledge or prior relationship with either parent or the children. So, to aid in their analysis, family law courts will often appoint child custody evaluators to assess each party’s claims and to come up with a recommended custody plan.

Unfortunately, it’s all too common that good parents end up being classified as unfit or neglectful based upon the following four avoidable mistakes:

1. Don’t Get Arrested

One of the clearest ways in which a parent can show a judge that he or she is not a fit parent is by getting arrested while the custody dispute is still pending. If a parent is arrested for a violent crime, even if they’re not convicted or charged, they provide the other parent with valuable ammunition to claim that the arrested parent has an anger management problem or is prone to violence. A finding such as this by the judge will almost ensure that the parent won’t be permitted to have unsupervised time with the children.

In turn, if there are allegations of alcohol or substance abuse, then a parent’s arrest for a DUI/DWI or possession of narcotics will most certainly confirm the allegation. If any of the children are present in the vehicle while the parent is driving under the influence or in possession of the narcotics, then the violating parent’s chances of prevailing in the custody battle are certainly lost.

2. Don’t Disobey the Court’s Temporary Custody Orders

A lot of times, the Court will issue a temporary interim custody order at the onset of a divorce or paternity action. This usually will remain in place until there’s a trial. Interim orders can govern the physical timeshare of the child or children between the parties, as well as the decision-making power of each parent, and other custody issues.

One of the worst mistakes that can be made is to disobey the Court’s temporary orders. For example, a parent might fail to return the children by the specified time. Or, a parent might remove the children from the state without the permission of the other party or a court order allowing them to do so. In either instance, the other parent will surely bring the matter to the Court’s attention to show that the violating parent doesn’t respect the Court’s authority. A message like that typically doesn’t go over well with judges and will surely have an impact on their final decision.

3. Be Careful What You Say On Social Media

All too often, parents will turn to social media while in the midst of a custody battle to vent their frustrations, slander the other parent, or even something as simple as showing their friends the fun they’re having in their newly single lives. However, social media is just that…“social” and is not private. The information and images posted on social media are available to the entire general public (which includes the other parent and their attorney).

Some of the best evidence of a parent having a substance abuse problem can be provided through a single “selfie” of the parent looking visibly intoxicated or in the act of using drugs.

Most importantly, any posts that show the parent speaking poorly of the other parent, the other attorney, or the judge provide excellent ammunition to be used in court. A good general rule is to never post something on social media that you would not be comfortable having a judge read or displayed in open court.

4. Be Reasonable

The most common mistake occurs when a parent refuses to communicate with or co-parent with the other parent. If parents can’t agree on joint legal custody, then the judge might look to see if one parent should have sole decision-making authority due to the other’s inability to co-parent. If that’s the case, then a parent who refuses to communicate with the other runs the risk of being deemed the “problem” parent who therefore should not be given a say in the important decisions pertaining to the children.

The best course of action for a parent is to present him or herself as a cooperative, reasonable adult who is trying their best to maintain an open line of communication regarding the children.