McCormack Family Law | Top Divorce Lawyer | Child Custody & Support

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.

Tags: companionship rights, parental rights, parents rights

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