Part 1: The Current Law

On Dec. 8, 2021, Ohio House Bill 508 (HB 508)—which would make the presumed outcome in child custody matters that of Shared Parenting and an equal parenting time schedule—was introduced into the Ohio Legislature by Representatives Thomas West (D) and Rodney Creech (R). Although to date, HB 508 has not progressed beyond the initial stages of the legislative process, the bill has already seen some level of bipartisan support, thus signaling that a possible substantial change in Ohio child custody laws might be on the horizon.

In light of this development, it is our intention to explore the content of HB 508 as well as the potential impact of the legislation, if passed, over a series of two articles on this topic. In order to truly understand HB 508 as well as how it might impact child custody laws in Ohio, it’s important to first understand the nature and status of Ohio’s current child custody statutes.

Ohio’s Current Child Custody Law

Presently in Ohio, there are two main ways that custodial rights to minor children can be allocated between parents: Shared Parenting and Sole Custody. Although the term “joint custody” is commonly used in popular culture, it is not, in fact, a type of custodial arrangement in Ohio. The main difference between Shared Parenting and Sole Custody relates to parental decision making—specifically, who is entitled to make decisions for the minor children.

In a Sole Custody arrangement, only one parent (i.e., the residential parent) is entitled to make decisions for the minor children, and the other parent (i.e., the non-residential parent) is entitled to visitation with the minor children. In contrast, in a Shared Parenting arrangement, each parent is considered the residential parent—and thus, is entitled to make decisions for the minor children.

It is also important to note that a family’s custodial arrangement (i.e., Shared Parenting vs. Sole Custody) is completely independent from the visitation schedule that the parents enjoy with the minor children. Thus, having a certain custodial arrangement does not necessarily result in or require a certain corresponding parenting time or visitation schedule. For example, a family could have a Shared Parenting arrangement where one of the parents has the overwhelming majority of the parenting time with the minor children. Likewise, a family could have a Sole Custody arrangement where the parties have roughly equal parenting time with the minor children.

Determining an Appropriate Custodial Arrangement

So, in a child custody case (including divorce lawsuits with children or child custody matters involving unwed parents), how do Ohio’s courts currently determine an appropriate custodial arrangement and parenting time or visitation schedule? Ultimately, the court must evaluate the evidence and make a custodial determination—specifically, either Shared Parenting or Sole Custody—that is in the best interest of the child or children at issue. Likewise, after reviewing the evidence, the court must also craft an appropriate parenting time or visitation schedule that is in the best interest of the child or children at issue.

However, at present, in order for a court to allocate custodial rights between the parents pursuant to a Shared Parenting arrangement, one of the parents must take affirmative steps to notify the court that he or she believes that Shared Parenting is in the best interest of the children. These affirmative steps include, but are not limited to, presenting a proposed Shared Parenting Plan to the court for its review and consideration. If neither parent takes these affirmative steps with the court, then, under Ohio’s current child custody laws, the court cannot issue an order for Shared Parenting, and instead is only able to award Sole Custody to one of the parents. This is true even if the court at issue believes, based on the evidence presented, that Shared Parenting is, in fact, in the best interest of the children. In this way, the current Ohio child custody laws operate in a way which, in effect, ties the courts hands and sets Sole Custody as the presumed outcome in a child custody case, unless one of the parents takes affirmative steps to request and demonstrate otherwise to the court.

The Issuance of a Parenting Time or Visitation Schedule

Furthermore, as it relates to the issuance of a parenting time or visitation schedule in a child custody matter, the current starting point for an Ohio court’s analysis is usually the standard parenting time and visitation schedule that that particular court has issued. Typically, most standard parenting time and visitation schedules issued by Ohio courts result in one parent receiving slightly more than half of the annual parenting time with the child, while the other parent receives slightly less than half of the annual parenting time. Notably, however, an Ohio court is not, in any way, required to only issue its standard parenting time and visitation schedule. Instead, each Ohio court is fully able to deviate from its standard parenting time and visitation schedule when circumstances of a case dictate that such a deviation is appropriate and in the best interest of the child. In fact, Ohio courts often do deviate from their standard parenting time and visitation schedules—both by issuing increased parenting time or less parenting time—as each individual custody matter must be evaluated and analyzed on a case-by-case basis.

Addressing the Impact of HB 508

Although the above-referenced summary is, by its nature, overly simplistic, it does provide a general summary of the current governing statutes and laws in Ohio’s child custody cases. As a result, the natural next questions are as follows: how would HB 508, if passed by the Ohio Legislature, impact the current custodial and parenting time or visitation framework, as described above? Moreover, as a practical matter, how might HB 508, if passed, impact the current status of custody arrangements in Ohio, in general? We will explore these issues in depth in the next installment of this series.

At KJK Family Law, we understand just how challenging navigating child custody issues can be, especially when governing laws might soon be in flux. Rest assured that we are staying up to date on such developments, and we are here to advise you in a way which appropriately takes into account both the current and potentially forthcoming legal frameworks of which you need to be aware. For further guidance on these and other related matters, please contact Janet Stewart Scalley (js@kjk.com; 216.736.7261) or another member of KJK Family Law by calling 216.696.8700.