Basic info and definitions
What is custody?
In Ohio, when the judge issues a custody order, it will address these two parts of custody:
- Physical custody, which is the physical care and supervision of a child. This is referred to as residential parenting in Ohio law.
- Legal custody, which is the right to have physical care and control of the child and to make important decisions for the child, including where s/he lives.1
The custodian is the person who has legal custody of a child.2
1 Ohio Admin. Code 5101:2-1-01(B)(171)
2 Ohio Admin. Code 5101:2-1-01(B)(84)
What is joint custody (shared parenting)?
Joint custody, called shared parenting in Ohio,1 means that both parents will be responsible for caring for the child. Among other things, parents will determine:
- where the child will live;
- how they will provide for the child’s economic and medical needs; and
- where the child will spend his/her holidays and other important dates.2
1 Ohio Rev. Code § 3109.041(C)
2 Ohio Rev. Code § 3109.04(G)
What are some pros and cons of starting a custody case?
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because:
- they don’t want to get the courts involved;
- they have an informal agreement that works well for them;
- they think going to court will provoke the other parent; or
- they are worried that if a custody case is started, the other parent will suddenly fight for, and get, more custody or visitation rights than they are comfortable with.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- the right to make decisions about your child; and/or
- the right to have your child live with you.
Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent who takes care of the child every day. However, if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.
We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the Ohio Finding a Lawyer page.
Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. For information on filing for child support, you can contact your local courthouse by going to our Ohio Courthouse Locations page or talk to a lawyer.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to Ohio Finding a Lawyer to seek out legal advice.
Who can get custody
Before there is a court order, who has custody when the parents are unmarried?
The law says that when an unmarried woman gives birth to a child, she is the sole residential parent and legal custodian of the child until a court issues an order to change that. However, if either parent files for custody, the judge must treat the mother and father equally when deciding who gets custody.1
1 Ohio Rev. Code § 3109.042(A)
Can a parent who committed violence get custody or visitation?
When making a decision about parental rights and responsibilities, the judge must take into consideration:
- whether either parent has a history of, or the potential to commit, domestic violence, child abuse, spouse abuse, and parental kidnapping;
- if either parent, or any member of the household of either parent, has been convicted of, or pleaded guilty to:
- domestic violence;
- a sexually-oriented offense involving a victim who was a member of the family or household that is the subject of the custody proceeding; or
- any criminal offense that:
- involves any act that resulted in a child being an “abused child” or a “neglected child;” or
- resulted in physical harm against someone who is a member of the family or household that is the subject of the custody case.1
However, there are many other factors that a judge will consider as well. See How will a judge make a decision about parental rights and responsibilities (custody)? Therefore, the fact that a parent committed domestic violence does not necessarily mean that s/he will be denied custody.
It is recommended that you seek legal advice from a lawyer to assist you in any custody case, especially one involving domestic violence issues. For information on how to find a lawyer, see our Ohio Finding a Lawyer page.
1 Ohio Rev. Code § 3109.04(F)(1)(h), (F)(2)(c)
If my child was conceived from rape, can the offender's rights be terminated?
If the offender was criminally convicted of, or pleaded guilty to, an act of rape or sexual battery that resulted in your child being conceived, you can bring a case in court to ask the judge to issue an order declaring that the offender is “the parent of a child conceived as a result of rape or sexual battery.”1 Once this is established, a judge cannot issue an order granting parental rights to the offender. This is true for female and male offenders.2 If an order granting parental rights was already issued, the judge must end (“terminate”) that order.3
Note: Termination of any parental rights order does not affect any child support payments that were already legally owed to you by that parent.4 Furthermore, any relatives of the offender can only be granted any custody/visitation rights if you agree.5
1 Ohio Rev. Code § 3109.501
2 Ohio Rev. Code § 3109.042
3 Ohio Rev. Code § 3109.504
4 See Ohio Rev. Code § 3109.507(B)
5 Ohio Rev. Code § 3109.506
Can grandparents or other relatives get visitation rights in court?
It is possible for a grandparent or other relative to file for visitation rights at the following times in the child’s life:
- If the child is born to an unmarried mother, a grandparent or other relative of either the mother or father can file if s/he meets the requirements explained in section 3109.12 of the law;
- If one of the child’s parents dies, a grandparent or other relative of the deceased parent can file if s/he meets the requirements explained in section 3109.11 of the law; or
If there is a divorce, dissolution of marriage, legal separation, annulment, or child support proceeding that involves a child, a grandparent or other relative of either the mother or father, or any other person can file if s/he meets the requirements explained in section 3109.051 of the law.
The custody process
How will a judge make a decision about parental rights and responsibilities (custody)?
A judge will make a decision about parental rights and responsibilities based on what s/he thinks is in your child’s best interests. The judge will look at any factor that s/he thinks is important to make this decision.
According to Ohio law, when determining what is in the best interests of the child, the judge will look at the following factors:
- the wishes of the child’s parents regarding the child’s care;
- the child’s preference for who s/he wants to live with, if the judge interviewed the child;
- the relationship the child has with his/her parents, siblings, and any other person that might significantly affect the child’s best interests;
- the child’s adjustment to the child’s home, school, and community;
- the mental and physical health of everyone involved;
- which parent is more likely to honor and assist with court-approved parenting time rights or visitation and companionship rights;
- whether either parent has failed to make child support payments that s/he was ordered to make;
- whether either parent, or any member of the parent’s household, 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 any court determined that either parent has abused or neglected a child, not just a criminal court, or whether there is any reason to believe that either parent abused or neglected a child;
- whether either parent, or any member of the parent’s household, has been convicted of, or pleaded guilty to, domestic violence, a sexually-oriented offense against someone who is a member of the family or household involved in the custody case, or any crime that resulted in physical harm against someone who is a member of the family or household involved in the custody case;
- whether either parent has continuously and willfully denied the other parent’s right to parenting time under a court order; and
- whether either parent has established a residence, or is planning to establish a residence, outside of the state.1
Note: The judge must not give preference to a parent because of that parent’s financial status when deciding parental rights and responsibilities.2
1 Ohio Rev. Code § 3109.04(F)(1)
2 Ohio Rev. Code § 3109.04(F)(3)
What factors will a judge consider when deciding whether to grant “shared parenting” (joint custody)?
When deciding if shared parenting is in the best interest of the child, the judge will consider all of the following:
- all of the factors mentioned in How will a judge make a decision about parental rights and responsibilities (custody)?
- the ability of each parent to cooperate and make decisions jointly, with respect to the children;
- the ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
- any history of, or potential to commit, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
- how far apart both parents live from each other in order to see if shared parenting would be practical; and
- the recommendation of the guardian ad litem of the child, if the child has one.1
The court may also consider other relevant factors when deciding if shared parenting is appropriate. To read more about these factors, you can see the law on our Selected Ohio Statutes page.
1 Ohio Rev. Code § 3109.04(F)(2)
Will I have to go to mediation?
If the parents do not agree on rights and responsibilities of their child or on a parenting time schedule, the judge may order the parents to go to mediation. However, before ordering mediation, the judge must consider if mediation is in the best interests of the parties when one of the parents was convicted of, or pleaded guilty to, domestic violence within that household.1
If the judge does order mediation, the judge will consider the mediation report but is not bound by it. The judge will consider the best interests of the child when making a decision.2 For more information on best interests factors, you can see How will a judge make a decision about parental rights and responsibilities (custody)?
1 Ohio Rev. Code § 3109.052(A)
2 Ohio Rev. Code § 3109.052(B)
After a custody order is issued
Can I change an order after it is issued?
There are two types of orders:
- one that allocates parental rights and responsibilities to one parent, and
- joint custody (shared parenting).
There are different standards for changing each one. The judge can change (modify) an order that allocates parental rights and responsibilities if:
- there has been a change in the circumstances of:
- the child;
- the residential parent; or
- in the case of a shared parenting order, either of the parents;
- the change of circumstances are based on either:
- new facts that have arisen since the order was issued; or
- facts that were unknown to the judge at the time the order was issued; and
- the modification is necessary to serve the best interest of the child.1
If there is a shared parenting order, either parent can file in court to modify a shared parenting plan or the judge can suggest a change at any time. In addition, both parents can jointly modify the terms of the shared parenting plan on their own at any time if they agree to the change. The modifications to the plan must be filed jointly by both parents, and the court will include them unless they are not in the best interests of the child. The judge can also terminate a final shared parenting order upon the request of one or both of the parents or whenever the judge determines that shared parenting is not in the best interest of the child. The judge would then issue a modified order for the allocation of parental rights and responsibilities as if no order for shared parenting had been granted and as if no request for shared parenting ever had been made by considering the best interest factors listed in the law.2
However, to change who is the residential parent, the judge will only do that if one of the following applies:
- the residential parent agrees to the change or, in the case of a shared parenting order, both parents agree;
- the child has been integrated into the family of the person seeking to become the residential parent with the consent of the residential parent or, in the case of a shared parenting order, both parents; or
- the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.1
1 Ohio Rev. Code § 3109.04(E)(1)(a)
2 Ohio Rev. Code § 3109.04(E)(2)
Where can I find more information about custody in Ohio?
The Ohio State Bar Association has information on how a child’s wishes are considered in a custody case as well as information about parenting plans in divorce and custody cases and information on sharing parental responsibility after separation. (Please note that WomensLaw is not affiliated with the above organization and cannot vouch for the accuracy of the information on that site.)
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.