In Ohio, judicial decisions affecting adults’ relationships with minor children must be based on the best interest of the child. This standard applies to determinations concerning whose home will be the child’s primary residence and who will have enforceable, legal rights to spend time with the child. In the best circumstances, the parents will maintain an intact relationship with each other and will encourage contact between the children, grandparents, and the entire extended family. In less ideal situations, court intervention may be required.
To be awarded legal custody or an enforceable legal right to visit with your grandchild, you must establish (1) that specific circumstances exist giving you the right to request custody or visitation; and (2) that granting you custody or visitation is in the child’s best interest. It’s therefore essential that you be represented by an experienced family law attorney with expertise in grandparents’ rights. We understand how painful it can be if you are denied the opportunity to shower your grandchild with the love and time-tested insight that sometimes only a grandparent can provide. Call or email us. We’ll evaluate your situation and let you know what we believe would be the most effective way to accomplish your objectives.
Ohio’s common pleas courts can grant custody and visitation.
In a 1977 case, In re Perales, the Ohio Supreme Court established that in a child custody proceeding between a parent and a nonparent, the court may not award custody to the nonparent without first making a finding of parental unsuitability, based on the evidence. Any of the following factors may establish a parent’s unsuitability:
- The parent abandoned the child.
- The parent contractually surrendered custody of the child to another.
- The parent has become totally incapable of supporting or caring for the child.
- An award of custody to the parent would be “detrimental to the child”—a catch-all giving a court latitude to determine that the parent is “otherwise unsuitable.”
Unless a court finds that the parent is “unsuitable” or unfit, the court may not grant custody to a child’s grandparent in an action between a parent and a grandparent.
If they believe that their grandchild’s parent is unsuitable or unfit, grandparents may ask a court to award them custody of the child. The parent’s unsuitability can be established in divorce, post-divorce, or other proceedings arising from the parents’ marriage, or in juvenile court proceedings if the parents were never married. Grandparents may request temporary custody or seek placement of their grandchild in their home in juvenile court proceedings filed by a local children’s services agency if the child is removed from the parents’ home.
Visitation (also called “Companionship”):
- Children Born During a Marriage
Grandparents generally have no right to intrude into an intact marriage to seek court-ordered visitation with their grandchildren. Once the marriage falters, however, grandparents’ rights arise.
To separate or to terminate their marriage, couples typically file an action for legal separation, annulment, divorce, or dissolution in the domestic relations division of the common pleas court in the county where they reside. Either during those proceedings or afterward, grandparents can ask the court for visitation rights.
- Children Born to an Unmarried Mother
If a child’s mother is unmarried when she gives birth, the maternal grandparents may file an action for visitation in the juvenile court. If and when the paternity of the child’s father is legally established, either through a child support proceeding or a paternity action in the juvenile court, he may apply to the court for visitation with the child—called “parenting time” in the case of a parent. Once his paternity is established, his parents may ask the court for visitation with their grandchild. Of course, nothing prohibits any grandparent from visiting the child if the parent with whom the child resides (usually, but not always, the mother) consents. Similarly, grandparents may visit with the child during the child’s visitation with the other parent as long as neither parent objects.
- Death of One Parent
If one parent dies, the grandparents on the deceased parent’s side (as well as other relatives of the deceased parent) may file a complaint in the common pleas court seeking visitation with their grandchild. Upon a determination that visitation is in the best interest of the child, the court may award visitation rights to the grandparents or other relatives.
The court retains its authority to grant visitation to the grandparents if the surviving parent remarries, even if the surviving parent’s new spouse adopts the minor child.
De Facto Custody Rights
There are two devices that can be used under limited circumstances to recognize and/or authorize grandparents’ de facto custody when a child is already residing with a grandparent:
- A caretaker authorization affidavit signed by the grandparents when the grandparents cannot locate a parent or legal custodian, recognizing the grandparents’ physical custody of the child; and
- A power of attorney signed by the child’s parent, guardian, or legal custodian authorizing the grandparents’ physical custody of the child.
Both the affidavit and power of attorney enable the grandparents to exercise parental rights such as care; physical custody; control; the right to enroll the child in school, receive and discuss information concerning the child with school authorities, and consent to all school-related matters; and to consent to medical, dental, and psychological treatment of the child.
Neither the affidavit nor the power of attorney transfers legal custody to the grandparents, and neither affects the parent’s future rights and responsibilities vis-à-vis the child. Both the affidavit and the power of attorney can be revoked by the parent or terminated by court order.
The power of attorney may be created when the parent is or will be temporarily unable to provide day-to-day care for the child, or when the parent believes that the power of attorney is in the child’s best interest. The caretaker authorization affidavit may be used when neither parent can be found. The grandparents must have made reasonable attempts to locate the parent and must sign a declaration to that effect.
The law requires that both the parent signing the power of attorney and the grandparent signing the caretaker authorization affidavit each acknowledges that they are not signing the document for the purpose of enrolling the child in a school or school district so that the child may participate in academic or athletic programs provided by that school or district.