Real Answers to Real Questions
How can a grandparent or other relative get legal custody of a child in Ohio?
Unfortunate circumstances sometimes arise in the life of a family when it is clear that a parent or parents can no longer provide the type of care that a child deserves. In situations such as these, a grandparent or relative often has no alternative but to file for legal custody of the child or children. This process normally begins by filing a custody petition in the juvenile court of the county in which the child resides. If the parents are in agreement, this is usually a fairly quick and relatively non adversarial process. Typically only one hearing is necessary where all parties appear before the magistrate or judge and state their agreement to the change of custody. However, if both parents do not agree, this can be a long and sometimes difficult process. In a contested custody case between a parent and a non-parent, the non-parent must first prove that the parent has either abandoned the child, has a total inability to provide care and support for the child, or is otherwise unsuitable and an award of custody to the parent would be detrimental to the child. After proving one of the above, the non-parent must then show that an award of custody to them would be in the child’s best interests.
My child has been arrested, now what?
Receiving a phone call from a police officer that your child is at the police station and is being linked to a crime has to be one of the most gut-wrenching experiences a parent can undergo. Whether it comes a complete shock or the confirmation of your worst fears, the cold reality of that call will be ingrained in your memory for life. But this is not the time for an emotional response, no matter how angry and disappointed you may be in your child. Instead, you must act decisively to protect your child.
The first thing you must realize is that the job of the police is to “clear” crimes, not to determine guilt or innocence. To do their job properly the police need to gather information. There is nothing malicious in this, they are just doing their job. However, there is a grave danger in letting your child speak to the police without a lawyer present. No matter how much you want your child to learn a lesson, this is not a teachable moment. This is a crisis.
Once you are able get in contact with the police be respectful, but firm. Be sure to get the officer's full name. Tell them you need to talk to a lawyer first before answering any questions. Don’t ask “What did my child do?”, rather ask “What do you believe my child did?”. Let the officer know that you will be immediately hiring an attorney to represent your child and that you do not want your child to be questioned further without an attorney present. Ask whether or not they will be charging your child with a crime. Ask if there are plans to transport your youth to juvenile detention. Ask if your child is injured or hurt. If so, request that the police get your child immediate medical attention. Once the conversation is over, immediately write down what you have learned for future reference.
If you are able to get a message to your child, tell them in no uncertain terms that they are to tell the police politely but firmly that they want an attorney and that they will not answer any further questions without a lawyer present. Further, that in all their interactions with police they should be respectful but that they should not talk to them anymore without their lawyer. Also emphasize that they are not to discuss the matter with anyone else, especially other juveniles present in the station or at the detention facility.
Next, you need to immediately contact an experienced juvenile attorney. Too often parents hire lawyers who practice in family or criminal law and dabble in juvenile court. In my decades in juvenile court, I have seen parents' waste good money on inexperienced lawyers. Don’t make that kind of crucial mistake. Get an experienced juvenile attorney who knows the law and their way around the system. The cost will likely be much the same, but the results won’t.
In communicating with the lawyer, make sure he or she understands that you want them to get involved immediately in the case. Don’t wait until the next day for an appointment. Know that while at the police station your child is not only going to be questioned by the officers, your child may be exhibited to witnesses in a line up. They may be taken to the scene of crime to “reenact” what happened. He or she may be taken to remote locations to locate evidence. He or she may be asked to give specimens of their hair, blood or body scrapings for laboratory analysis. All these actions are undertaken by the police to gather evidence. However, this evidence may end up being used to charge your child with a crime. Your child may have a right to not to have to be subjected to any of these procedures, or at least not unless their attorney is present. But these rights can be lost unless an attorney acts quickly to protect your child.
Once you have retained an experienced juvenile attorney, he or she will be able to advise you regarding your child’s case. In future blog posts I will be discussing what a parent can expect at each step in the typical juvenile court case. The most important advice I can give you is whatever your feelings are about your child are at the present moment, don’t leave them defenseless in the face of an impersonal system. Hire an accomplished juvenile lawyer and follow their advice. This may be the most important thing you will ever do for your child.
My girlfriend just told me she is pregnant with my child, how can I make sure that I am not just the biological father, but my child’s legal father as well?
When a child is born outside of marriage in Ohio, the biological father must take action to establish himself as the legal father. Until he does so the biological father has very little legal rights in regards to his children.
There are three methods of establishing paternity in Ohio and these methods vary in degree of difficulty and expense. The quickest and cheapest way to establish paternity does not involve the courts. The parents can complete and sign a legal document called an Acknowledgement of Paternity Affidavit. These forms are usually available at hospitals that provide maternity services and can be signed immediately after the birth of the child. The new parents simply complete the form, notarize their signatures, and mail the form to the Ohio Department of Jobs and Family Services. This process is useful for parents that are typically living together and are not interested in genetic testing of their child.
The second way to establish paternity in Ohio can also be done outside of court but does involve using the offices of the county child support enforcement agency. Upon receiving a request from either biological parent, the county CSEA will schedule genetic testing for mother, child and any possible father. If the parties cooperate with genetic testing, the CSEA can establish paternity administratively. The CSEA will then forward a copy of the of the paternity establishment to the Bureau of Vital Statistics so that the father’s name can be added to the birth certificate.
The final method of establishing paternity is the traditional method of resorting to court action. The court will also require that the parties and the child submit to genetic testing. There are certain advantages in proceeding with a court action over the other methods especially as it relates to the issues of child support and custody/visitation. An attorney experienced in juvenile law can give you the guidance you need to best protect this most fundamental right.
Four years ago, I went into the military and gave my mom custody of my child. I’m out of the service now and want to take custody back but my mom disagrees. A lawyer I talked to says I just can’t automatically get custody back but that I have to go Court and show there has been a change in circumstances. Can that be right, I’m her mother!
Your lawyer is giving you some tough but true advice. Once you went to Court and gave your mother legal custody, she holds custody until the Court changes the order. Now if she agrees, it’s usually a pretty simple matter to go back to Court to change the order. However, that’s not true for you. You are going to have go back to court and fight your mother for custody of your child. Now here’s even tougher news for you, the change of circumstances has to be a change in the life of the custodial parent or the child, not yours. This is certainly a mess now but your lawyer will likely have some options for you including looking at mediation as a way to work out the dispute with your mother. But the honest truth is that you may need to go back to court and fight to get custody of your child back. In meantime make your child’s best interests the most important thing in your life and try to be the best parent you can be under the circumstances.
Can I name my sister to be Guardian of my children in my Will? My child’s other parent has really gone off the deep end and I don’t think my children would be safe living with them if I am no longer around.
The answer to this is yes, but! You certainly may name any competent adult to be guardian of your children in your Will. And most people do choose another member of their family such as an aunt. If the other parent does not contest the request that your sister be appointed guardian, courts will almost always make the appointment according to the request set out in your Will. However, the but part of the answer is what will the legal effect of that appointment be should the other parent contest this appointment.
In most instances, absent an agreement, a court will not appoint someone other than a legal parent to be the guardian of their child unless it can show that the parent is unavailable, unwilling, or is unsuitable to serve as the guardian. This is true even if the deceased parent has sole custody of the children pursuant to a court order. This is high bar but it should not deter you from making the requested appointment in your Will. Circumstances and people change so you cannot always predict where the future. If the time comes, the other parent may agree, or at the very least not want to go to the trouble and expense of contesting the appointment. At the very least your request that your sister be appointed will prevent other relatives from assuming the role . So go ahead and make your Will and make the request for a guardian to be appointed. It is a loving thing to do, and it really is in your children's best interests.