There is a perception among the public that fathers cannot be awarded meaningful time, shared parenting or custody of their children. Despite the fact that equality based upon gender is enshrined into every level of our legal codes as well as the Constitutions of both the United States and Ohio, the stereotype of the “weekend” dad continues to exist. For its part, Ohio Law treats fathers who are divorcing the other parent of their children who were born during the marriage very differently than it does fathers who were never married to the mother of their children.
For children born “during the marriage” of their parents, R.C. 3109.03 states that parents shall “stand upon an equality as to the parental rights and responsibilities for the care of their children.” However, 3109.03 applies only to “[w]hen husband and wife are living separate and apart from each other, or are divorced[.]”
On the other hand, R.C. 3109.042(A) governs the initial custody of children born to an unmarried mother. Under this statute “[a]n unmarried female who gives birth to a child is 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.” While R.C. 3109.042(A) includes identical language about mother and father “standing upon equality,” for purposes of determinations regarding custody, there are several reasons why a father of a child may face obstacles to obtaining custody, shared parenting or meaningful parenting time with their child when he is not married to the child’s mother.
From a practical standpoint what does this mean for a father wanting to spend time with his children? If your children were born during the marriage of you and their mother, you have the exact same rights as the mother. Sadly, this often means that until a court issues temporary orders designating with parent (or parents) have custody of the children and how parenting time is allocated; the parent with physical possession of the children is at a temporary advantage.
For a father who is not married to his children’s mother, Ohio law makes it quite clear that he starts out with absolutely not right of access to his child. A father in this situation must establish paternity, if he has not already done so, and THEN request parenting time from the Court.
Regardless of whether or not you were married to your child’s mother, if you are facing a battle for custody, please do not hesitate to set up a free consultation at my office. Call 614-859-9529.