We represent men and women equally. Historically, women have had an advantage in child custody disputes. Our goal is to achieve equal treatment for fathers; however, we are committed to protecting the rights of all our clients, whether female or male.
As a father, you should not assume that you will not be able to be fully involved in your children’s lives. You should never assume a secondary parenting role based upon your gender alone. The most important factor to note is that the laws of the State of Ohio require the Courts to be gender neutral in determining custody issues. Courts want the father to be involved in the lives of their children and you should not be discouraged by people telling you that the Courts favor the mother. The Courts are increasingly favoring shared parenting where it is apparent that the involvement of both parents is in the best interest of the children.
In a divorce case, the law presumes that the parents of a child born during the marriage are automatically of equal standing. In determining custody issues the Court is required to be gender neutral. As a practical matter this means that a mother who decides to leave a father is simply not entitled to take the children with her and to withhold the children from the father. Put another way, both parties are considered to be the residential parent and legal custodian of the minor children born during the marriage until there is an order from the Court allocating parental rights between the parties. This can result in some very ugly situations where one parent takes the children and refuses to allow the other parent to see them. The person withholding visitation does not really have that right absent a court order. This is a very frustrating situation, but most attorneys will advise you not to simply “take” the children back. Before parents get into such tug of wars with the children, it is better to seek court intervention. If your wife has simply disappeared with the children or has taken the children and refuses to allow you access, seek assistance from the Court immediately. In certain situations, it may be appropriate to seek an emergency custody order, particularly if you concerned that the mother has disappeared with the children or that the children may be in danger. There is also a general preference for having the children remain at the marital residence and the Courts do not like a parent to simply take the children away from their home and their other parent. At the very least, you need to request the Court to provide you with access to the children.
If the two of you are married and have separated, then you need to determine whether you are going to proceed to terminate your marriage by divorce or dissolution. If you are concerned that the mother may leave the jurisdiction, you may want to consider filing for a divorce so that you can seek the benefit of restraining orders prohibiting either party from taking the children permanently from the jurisdiction of the Court. Similarly, if your access to the children is being restricted, you may wish to consider filing for divorce so that the Court can issue temporary orders allocating parental rights and responsibilities. Another factor to consider when deciding whether to file for a divorce is that a parent who has physical custody of the children can apply for child support through the Child Support Enforcement Agency even though no divorce has been filed, since this is an administrative hearing and the agency will not address issues of visitation or custody. In short, you could be faced with a support order before you have even had a chance to address issues of custody and parenting time.
Please remember that by filing for a divorce you are not stating that you do not wish to resolve matters amicably. The two of you can always resolve issues and most cases are settled prior to trial. Filing for divorce simply provides you with protection.
Once a divorce is filed, the Court will likely conduct a non-oral hearing on temporary orders that will establish temporary custody and support issues. The terms non-oral means that neither party testifies and the Court makes its decision on the basis of affidavits submitted by the parties. IF the parties are still living together, it is unlikely that the Court will award custody to either or order child and spousal support, although it may issue orders for the payment of bills. If the two of you are living apart, it is very important that you take this hearing very seriously if you wish custody or shared time with your children. The Court cannot read your mind. You need to explain to the Court what you would like in terms of parenting arrangements and why this is in the best interest of the children that you have such time. If you are interested in being the primary parent for the children, you need to let the Court know this as soon as possible and temporary orders are a good time for advising the Court of your position. After the information is submitted by both parties, the Court will issue temporary orders for custody and support. If you do not agree with the Court’s decision, you have a right to an oral hearing where testimony can be presented and the other party and any witnesses they call cross-examined. Temporary orders are not the end of the case, but do tend to establish a status quo. Accordingly, you need to take them very seriously.
In the section on Child Custody on this web site I explain the issues involved in a custody dispute. Needless to say, the father who wants to be more involved in his children’s lives than seeing them once a week or every weekend needs to understand the process. If your spouse is not willing to agree to a Shared Parenting Plan that takes into consideration your concerns and wishes, it is likely that you will want to appoint a Guardian Ad Litem. Most Guardian Ad Litems are very open to fathers who want to be involved with their children and favor shared parenting where appropriate.
Fathers of children born outside of marriage, however, are treated somewhat differently than the father of a child born as the result of marriage. If you are a father of a child born outside of a marriage, the mother of the child is deemed the sole residential parent and legal custodian of the child until a Court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. There are several practical ramifications to this statute. For example, parents of children who are not married often have informal arrangements as to parenting times. At some point, however, the mother of the child may decide to withhold parenting or move away from the father. Absent a court order granting the father parenting time, this is legally permissible.
In order for a father of a child born outside of marriage who is not living with the mother to receive parenting time or custody, the father will need to file an action with the Court to determine parentage and requesting either that the Court make him the residential parent and legal custodian of the child, order shared parenting or at least grant him parenting time. This may, however, take some time. In order to avoid these problems, it is best that the father file with the Court at an early date (before there are problems) so that his parenting rights can be established. This does not need to be adversarial. For example, shortly after the birth of the child the father could file his action with the Court and, if the parties are in agreement that he is the father, can simply agree to allocate responsibilities for the child. If the mother is not in agreement, it is best to litigate these issues early on and establish that you are the father and that you wish to be involved in the child’s life. The Court will generally look favorably upon the requests of a suitable father who wants to be involved in the child’s life. In fact, the statute requires that the Court shall treat the mother and father in equal standing when making the designation of a residential parent. For the reasons stated later in this article, do not confuse equality of standing with equal parenting time. A father who files for parenting rights to a child born outside of marriage should be aware, however, that the Court, while making parenting decisions, will also decide issues of child support.
In cases of children born outside of marriage, often the first contact with the legal system will be a request filed by the Mother through her county’s Child Support Enforcement Agency for child support. If the mother is receiving public assistance, then such an action may be filed even if the mother has not requested child support as such support will be used to reimburse the public for the aid that the mother and child receive. These actions are administrative hearings. As a father, you should be aware that at this administrative level the agency will decide support issues only and will not, absent an agreement of the parties, make any orders concerning parenting time. Accordingly, if you wish parenting time, and there is not an agreement of the parties, then the father will need to file an action with the Court. If you are determined to be the father and are going to be ordered to pay support, it is in your best interest to establish that you wish to be involved in the child’s life. Even if you do not pursue such an action for parenting time, it is important that if you are concerned that you are not the father of the child that you raise this issue at the administrative level and request genetic testing.
Once the issue of parentage and parenting time is properly before the Court, the matter will precede in much the same fashion as a custody dispute in the divorce case. If you cannot agree on parenting time, you can request the appointment of a Guardian Ad Litem just as in the divorce case.
As noted above, if an administrative action for support has been filed against you, you should, if there is any question in your mind concerning whether you are the father, request paternity testing. Genetic testing can be performed which can determine whether you are the father of the child so that you are not required to pay child support for a child that is not yours. Although you may be allowed under certain circumstances to challenge paternity at a later date, any child support paid until the Court overturns an earlier finding of paternity will not be recoverable (although an arrearage may be eliminated).
In a divorce action, you are presumed to be the parent of the child if the child was conceived during the marriage. Once again, if you do not believe that you are the father of the child you may request genetic testing and, if it determined that you are not the father, the suspected father may be brought into the case so that his paternity of the child can be established. If you are the father of a child of a woman who is married to another and you wish to establish your paternity, you can still file a motion to establish paternity or (if the parties are divorcing, seek to intervene in the divorce). As difficult as these issues are, it is better to address them at this time to eliminate future difficulties for both you and for the child.