Can children choose which parent to live with at a certain age?

This question is by far the most misconceived aspect of child custody law in Ohio I have encountered.  Following a divorce, or in a situation when the parents were never married, parents often want to pursue custody of their child(ren) based on the fact that the child reached a certain age and wishes to change households.  Many believe that once a child reaches a certain age (and I have heard many, i.e. twelve, thirteen, fourteen years old) they have sole decision-making authority regarding which household in which they wish to reside and that Ohio courts will rule accordingly in a child custody case.  However, as expressed above, this is simply not the case. 

The main issue in any child custody matter is what is in the best interest of the child.  In determining this, the court will analyze the case using the factors outlined in Ohio Revised Code 3109.04.  The factors the court must consider in a child custody matter are:

1.      The wishes of the child’s parents regarding the child’s care;

2.      If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;

3.      The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;

4.      The child’s adjustment to the child’s home, school, and community;

5.      The mental and physical health of all persons involved in the situation;

6.      The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;

7.      Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;

8.      Whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;

9.      Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;

10.  Whether either parent has established a residence, or is planning to establish a residence, outside this state.


As seen from above, there are many factors the court must consider in determining a child custody matter.  Therefore, although one of the factors listed is the wishes of the child, the child’s decision at any age will not be dispositive in determining which parent will be awarded custody.

Options for Ending a Marriage in Ohio

Ohio law provides a variety of ways a married couple can terminate their marriage.  

The most efficient and cost effective method to terminate a marriage in Ohio is through the dissolution process.  In a dissolution, the parties must file a petition for dissolution with the court.  However, unlike in a divorce, the parties must also present written agreements of the terms of their dissolution at the time of filing.  Usually this includes a separation agreement and, if their are children, a shared parenting plan.  A separation agreement includes the terms of the parties' agreement concerning the division of the parties' financial assets and debts, including real estate, motor vehicles, bank accounts, retirement accounts, spousal support, etc.  

Additionally, if the parties have children and they wish to enter into a shared parenting arrangement, a shared parenting plan must be submitted.  This document will address the parties' agreement regarding parenting time schedules for the children, child support, and who will be responsible for the payment of other expenses for the children, e.g. extracurricular activities, child care expenses, etc.  However, parties are not required to enter into a shared parenting arrangement in a dissolution.  The parties may agree that one parent is designated as the sole legal custodian of the children as well.  Once the dissolution and agreements are submitted to the court, the parties then attend a hearing to affirm their agreement under oath before the court.  At the end of this hearing, the parties' marriage will be officially dissolved.  

The dissolution process can be finalized is as little as two months.  Further, the cost of a dissolution can be a fraction of the cost for a divorce.  Thus, for many couples, a dissolution is a much more attractive means to end their marriage.  However, since the parties must reach an agreement concerning all of the issues before filing for a dissolution, this method is simply not possible when one, or many, of the issues remain contested between the parties.  

If the parties cannot reach such an agreement prior to filing, most parties must file a complaint for divorce.  The divorce process in Ohio is much like any other civil lawsuit - a complaint is filed by one party and the opposing party is served; the opposing party can then file an answer to the complaint and counterclaim; the parties engage in the discovery process (the exchange of requested information); the parties attempt to negotiate the terms of the divorce through settlement conferences or mediation; or, if issues remain unresolved, the parties attend a final divorce hearing.  The divorce process in Ohio can be very costly and time consuming.  However, if there are contested issues prior to filing, divorce is often the only means of terminating a marriage.  

An annulment is another way to end a marriage in Ohio.  However, annulments are only possible under very limited circumstances.  These include, but are not limited to, if one of the parties was already married to another person, if one of the parties has been declared mentally incompetent, or if the marriage was never consummated.  

As seen from above, married couples have options for terminating their marriage.  If you have questions regarding which of these options best fits your circumstances, or if you have additional questions regarding these options, contact The Miller Firm today at (937)259-8031 for a consultation.  

Can Same Sex Couples Get Divorced in Ohio?

As with most legal issues, there is no simple answer to the question of whether same sex couples can obtain a divorce in the State of Ohio.  Although in 2004, Ohio voters approved an amendment to the State's constitution to ban same sex marriage, recent developments in county domestic relations courts around Ohio suggest that same sex couples legally married in another state may obtain a divorce in Ohio.  For example, a Franklin County, Ohio judge recently granted a divorce to two men who married in New York.  Additionally, Vanessa McCray of The Blade, notes in a recent article that judges in several other Ohio counties, particularly Lucas County, Ohio, have been granting same sex divorces since at least 2012.  (Click here for article). 

In the opinion of this attorney, there are strong arguments supporting Ohio courts' authority to grant same sex couples a divorce.  First, the plain language of the 2004 amendment specifically bans safe sex marriage in Ohio but says nothing of banning same sex divorce. Further, Article IV, Section 1 of the United States Constitution states that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state . . . ."  Ohio judges could easily rely on this "full faith and credit" clause to justify divorcing same sex couples legally married in another state.  Additionally, Ohio courts have authority to dissolve other types of marriages not recognized under Ohio law.  As pointed out by Ms. McCray, these types of marriages include common law marriages and marriages involving minors.  

In conclusion, although the jury is still out on whether Ohio courts can officially divorce same sex couples legally married in another state, it seems that Ohio courts, albeit on a county by county basis, are gradually tending in this direction.  As always, the foregoing is in no way intended to constitution legal advice and is merely opinion expressed by the author.