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Turning Points Blog

A family law blog about tying and untying knots and other common threads

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‘parental rights’

When do courts set aside parental rights?

April 2010

In 2000, the United States Supreme Court decided that parents’ interest in ‘the care, custody, and control of their children… is perhaps the oldest of the fundamental liberty interests.’ (Here is a short summary of the case, Troxel v Granville.)

This decision stands on a presumption that all parents are fit parents with a constitutionally protected right to make decisions about their children without interference from others. Many lawyers, including myself, believe this is proper.

But a question remains: Can anything override that right? Yes, in some cases, when one or both of these requirements are met:

     –Clear and convincing proof that a parent is not fit
     –Clear evidence of harm or a risk of harm to the child

A couple of examples will clarify what these statements mean in a practical sense.

Example 1: A parent with a long history of drug abuse, and seeking to evade criminal charges, flees to another state and takes along his/her infant, who has been cared for by others most of the time. Can the person who has been the primary caregiver hope to get custody of the child? Yes.

Common sense tells us that this situation may meet both requirements above. Legally, the Ohio Revised Code tends to support that view with its definitions of the neglected child, abused child or dependent child. A child who can be described under any of these three definitions is likely to be deemed at risk. Thus, the established caregiver in this situation may make a good case for custody. Most courts will take their argument seriously.  

Example 2:  A young child has bonded with a grandparent and is attached to that grandparent as a regular caregiver from infancy. After a family dispute, the child’s parents decide the grandparent can no longer see the child. In this case, everyone thinks the parents are fit parents. Can the grandparent win a court case for companionship rights? Many courts will say no: the parents are simply exercising their right to make decisions about their child.

Can the grandparent ever win? Possibly, if counsel can show convincingly that the sudden absence of the caring grandparent to whom the child is attached risks psychological harm to the child. It can be fairly expensive to make the case (potentially requiring expert witnesses, for instance) but it is not impossible.

The key here is making sure your legal representative

is versed in the technicalities of the ORC sections on neglected, abused, dependent children
is up-to-date on current understandings of child developmental/psychological needs
can realistically analyze the potential for a win
is able to identify the most practical legal strategy.

Parental rights are favored, as they should be. But in some circumstances, courts decide that the wellbeing of a child outweighs parental rights.

When parents are unmarried, do courts favor mothers?

March 2010

Many single fathers think that they have an automatic right to spend as much time with their child as the mother does. As a rule, Ohio courts disagree.

That makes many unmarried fathers think the courts are biased in favor of mothers. Not so. When children begin life without two parents in the home, courts are biased in favor of primary caregivers— and the fact is, that’s usually the mother.

Why the caregiver bias? Courts have a duty to serve ‘the best interests of the child’– and one of the most important is stability.

Stability starts early, when an infant quickly bonds with and becomes attached to their primary caregiver. That’s the person who takes care of their needs, who understands their habits and preferences and fears. That’s the person they know they can count on.

That stability goes out the window when a child is suddenly uprooted to spend half their time with someone they have no relationship with— a father, for instance.

Does this leave unmarried dads out in the cold? No. But it strongly suggests that single fathers should establish their legal standing and begin to participate as committed parents very early in their child’s life. Here are the basics on how to get parental rights.

Single dads who wait many months or years to activate their parental rights have to be ready to go step by step.

A court is simply not going to order equal parenting time to any parent who has not established a caregiver relationship with a child. But it will start with an initial plan of visits, integrating the parent into his child’s life for a few hours at a time, usually three days a week. Frequency and regularity of contact are crucial.

As the parent-child relationship gets established, courts often expand contact to include overnights. The most important factor is the father’s ability to show that he understands and can take care of his child’s everyday needs on a regular basis.

The bottom line is this: Dont’ talk about it. Do it. Unmarried fathers can earn equal parental rights and responsibilities by doing what it takes for their children to recognize them as genuine caregivers. A court will usually follow suit and activate fathers’ full parenting rights.

What are the rights of unmarried parents?

March 2010

In Ohio, the unmarried parents of a child do not automatically have equal rights. By statute, an unmarried mother is the ‘natural legal custodian’ of her child, with the right to make all the decisions. The father has no active parental rights at all.

Can unmarried fathers get parental rights? Absolutely. In order to activate their rights, single fathers can seek an order from an appropriate court. That means filing a complaint that asks the court to

1)      determine paternity

2)      allocate parental rights (shared parenting or visitation)

3)      set a proper level of child support.

Once the case is in court, both unmarried parents are taken to have parental rights and parental responsibilities: participation in parenting activities plus financial support. The only question is how the rights and responsibilities get allocated.

One rule of thumb for a single dad who wants to activate his right to be a father: do it as soon as possible. Go to court right away. Begin defining and fulfilling your financial responsibilities as early in your child’s life as you can. Do the same with your parenting time and rights.  

The longer an unmarried father waits to pursue his legal rights and responsibilities, the more likely a court is to allocate rights in favor of the primary caregiver– the mother. And that’s not because of her gender. It’s because she is already a constant, consistent presence in the child’s life.

Unmarried fathers who have not been involved with their kids generally don’t get equal time with them right off the bat. So get involved, stay involved, and seek an appropriate court order as soon as possible. That’s how you establish single fathers’ rights.

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