One of the terms that gets “tossed around” during child custody litigation is “best interest of the child.” The concept of “best interest” is one that is not always understood by parents. In Ohio, R.C. 3109.04(F)(1) governs the “best interest” standard for custody determinations. Please note that there are additional factors considered for cases involving “shared parenting.” Such factors will be discussed in a different post.
RC. 3109.04(F)(1) states: In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) 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;
(c) 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;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
(g) 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;
(h) Whether either parent or any member of the household of 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 or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented 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; whether either parent or any member of the household of 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;
(i) 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;
(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.
Subsection (a): the wishes of the parents, is often unhelpful as the parents are usually disagreeing if they are at this point. However, under the U.S. Supreme Court’s decision in Troxel v. Granville, the parents of a child have a constitutional right to determine the custody of their children,530 U.S. 57 (2000). Subsection (a) is an acknowledgment of that right.
Subsection (b) allows the court to consider the child’s wishes if the child is interviewed in chambers. Many people mistakenly believe that a child gets to “decide” with which parent they will live. This is not true. Under R.C. 3109.04(B)(2)(b) a court may interview a child out of the presence of the child’s parents
Subsections (c) and (d) relate to the child’s adjustment to the people and places around them. This may include siblings, stepparents, other relatives, the child’s school, their friends; coaches; activities; sports teams; and anything else that relates to how the child spends their time and with whom they spend it.
Subsection (e) addresses concerns about the mental and physical health of the anyone who interacts with the child or even the child his or herself. It is this subsection that is often heavily litigated as often parties will raise concerns about a parent’s use of alcohol or drugs; claims of mental illness; or even an inability to care for the child due to a physical disability. Sometimes, the child his or herself has a condition or issue that warrants them being in the custody of one parent over the other. For example, a child who requires constant care may not be suitable to be placed in the custody of a parent whose job is demanding and requires frequent travel. Parents who raise this issue should be prepared to present expert evidence of the issue involved. It is seldom enough to show that a parent drinks alcohol (a legal activity for adults) but rather a party should be prepared to show how the alcohol use affects the child.
Subsection (f) and (i) concern a judgment as to which parent is more likely to facilitate the other Parent’s time with the child and whether either parent has denied the other parent time allocated to them via a Court Order. A parent with a history of blocking court-approved parenting time may be penalized by the Court for doing so. Likewise, a parent who can demonstrate the ability to work with the other parent may have an advantage. This factor is one of the few where the Parent’s moral conduct is at issue. It is important to document instances of violations of a court order. A good family law attorney can offer pointers on how best to document violations.
Subsection (g) merely asks whether the obligor parent has met their child support obligation. Since the obligor-parent is court ordered to meet their child support obligation, it seldom impresses a Judge that one is merely complying with the order. However, in contrast, the failure to comply with a court order can be very detrimental to a parent’s claim for custody. If one is not supporting their child when they do not live with them; how is the Court to believe that the child will be supported if placed with parent with a child support deficiency.
Subsection (h) looks the criminal and juvenile histories of the Parents and other members of their household as well as their prior bad acts. The statute is concerned with:
- Offenses where a person has been convicted or pled guilty to any criminal offense involving any act that resulted in a child being abused or neglected. (The terms “abused child” and “neglected child” are defined by statute;
- Cases where a child has actually been adjudicated an abused child or neglected child and either parent has been determined to be perpetrator of the act in question;
- Any conviction or guilty plea to R.C. 2919.25 (the Ohio statute governing domestic violence);
- Any conviction or guilty plea to any sexual orientated offense involving a victim who was a member of the family or household;
- Any action that there is reason to believe resulted in a child being an abused or neglected child.
For people who have a conviction or adjudication for any of the offenses above; 3109.04(B)(3)(C) requires that the Court to make written findings of fact about why it is in a child’s best interest for an individual with such a conviction to be granted custody of a child.
Finally, subjection (j) considers whether a parent has moved or is planning to move out of state.
It is very important for any litigant in a custody case to understand and address each of these “factors” when they are presenting their case. When the Court speaks of “best interest,” in a custody matter it is referring directly to these factors. Often when a Court issues a decision regarding custody, it will specifically address each of the factors individually. The failure of the Court to consider these factors may cause its decision to be reversed on appeal; however, the statute does not mandate that the court give any particular weight to any individual factor.
If you are facing a custody case, please call my office at 614-859-9529 for a consultation.