Ohio Custody and Visitation Law
Ohio courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. Courts have used a parent’s gender identity or expression to deny, restrict or modify custody and visitation. Ohio courts have granted custody or visitation rights to the non-biological parent of a child in limited circumstances.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Ohio courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
Ohio law 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 … 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 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 previously has been convicted of or pleaded guilty to a violation of … the Revised Code 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 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. …
“In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to … all of the following factors: (a) The ability of the parents to cooperate and make decisions jointly, with respect to the children; (b) The ability of each parent to encourage the sharing of love, affection and contact between the child and the other parent; (c) Any history of, or potential for, child abuse, spouse abuse other domestic violence or parental kidnapping by either parent; (d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting; (e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem. …
“If a divorce, dissolution, legal separation or annulment proceeding involves a child and if the court has not issued a shared parenting decree, the court shall consider any mediation report filed pursuant to … the Revised Code and … shall make a just and reasonable order or decree permitting each parent who is not the residential parent to have parenting time with the child at the time and under the conditions that the court directs, unless the court determines that it would not be in the best interest of the child to permit that parent to have parenting time with the child and includes in the journal its findings of fact and conclusions of law. Whenever possible, the order or decree permitting the parenting time shall ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact by either parent with the child would not be in the best interest of the child. The court shall include in its final decree a specific schedule of parenting time for that parent. … If the court, pursuant to this section, grants parenting time to a parent or companionship or visitation rights to any other person with respect to any child, it shall not require the public children services agency to provide supervision of or other services related to that parent’s exercise of parenting time or that person’s exercise of companionship or visitation rights with respect to the child. This section does not limit the power of a juvenile court … to issue orders with respect to children who are alleged to be abused, neglected or dependent children or to make dispositions of children who are adjudicated abused, neglected or dependent children or of a common pleas court to issue orders. …
“In determining whether to grant parenting time to a parent … or companionship or visitation rights to a grandparent, relative or other person … in establishing a specific parenting time or visitation schedule, and in determining other parenting time matters … or visitation matters … the court shall consider all of the following factors: (1) The prior interaction and interrelationships of the child with the child’s parents, siblings and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling or relative of the child; (2) The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person’s residence and the distance between that person’s residence and the child’s residence; (3) The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule and the child’s and the parents’ holiday and vacation schedule; (4) The age of the child; (5) The child’s adjustment to home, school and community; (6) If the court has interviewed the child in chambers … regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court; (7) The health and safety of the child; (8) The amount of time that will be available for the child to spend with siblings; (9) The mental and physical health of all parties; (10) Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation; (11) In relation to parenting time, whether 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 the adjudication; 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; (12) In relation to requested companionship or visitation by a person other than a parent, whether the person 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 the person, 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 the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of … the Revised Code 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 previously has been convicted of an 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 the person has acted in a manner resulting in a child being an abused child or a neglected child; (13) 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; (14) Whether either parent has established a residence or is planning to establish a residence outside this state; (15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child’s parents, as expressed by them to the court; (16) Any other factor in the best interest of the child.”
In a 2002 case, In re marriage of Faulhaber, the mother, Maria, was named residential parent and sole legal custodian of the couple’s children. The next year, the father petitioned to reallocate the parental rights and responsibilities due to changes in the mother’s life, including her involvement and cohabitation with another female, Samad, who was a convicted sex offender. The magistrate recommended that the father be designated as the residential parent and the sole legal custodian with the mother having visitation rights on the condition that the children should never be left alone with Samad. The appeals court agreed with the trial court that there was a change in circumstances and that it was supported by competent and credible evidence. The appeals court dismissed the mother’s assertion that the trial court considered her sexual orientation to be determinative.
In a 1997 case, Inscoe v. Inscoe, an appeals court reversed a trial court’s judgment modifying the parental rights and responsibilities of a gay father. The appeals court held that there was no evidence that the father’s sexual orientation directly or adversely affected his child in such a manner that a change in his parental rights and responsibilities was necessary to serve the best interest of the child. Furthermore, the court went on to declare that a parent’s sexual orientation, standing alone, was not a sufficient basis to modify the allocation of parental rights and responsibilities.
In a 1993 case, Large v. Large, the mother was granted sole residential custody; the father appealed. After their divorce, the mother began a relationship with a woman. The father challenged the trial court order, arguing that the court did not take into account that the mother’s sexuality would have a drastic impact on the children. He argued the mother’s lesbian relationship neglected traditional family values and therefore it was not in the children’s best interest to reside with the mother. The Court of Appeals of Ohio upheld the trial court order granting the mother sole residential custody, finding that there was no evidence indicating that the mother’s sexual orientation had a negative impact on the children.
In one 1989 case, Mohrman v. Mohrman, the father was granted custody and the lesbian mother appealed, arguing that the trial court had abused its discretion on the basis of her sexual orientation. The appeals court found the decision of the trial court was supported by the testimony and that its discretion was not abused. The appeals court went on to articulate that a trial court does not have to find an adverse effect of a parent’s sexual orientation in the initial custody determination; rather, the trial court only has to consider the effect the parent’s same-sex relationship has had on the child. It ruled that an adverse effect only applied to cases where there was a petition to modify custody.
In a 1987 case, Conkel v. Conkel, the trial court awarded the mother custody and granted the bisexual father overnight visitation on the condition that there could be no unrelated male present when the visitation was exercised. The mother appealed the granting of overnight visitation. The appeals court affirmed the trial court’s decision allowing overnight visitation, citing that no evidence was presented that it would have a harmful effect and that it was in the best interests of the children. The appeals court also noted: “This court cannot take into consideration the unpopularity of homosexuals in society when its duty is to facilitate and guard a fundamental parent-child relationship.”
In a 1985 case, Roberts v. Roberts, the trial court overruled a mother’s petition to terminate the gay father’s visitation rights. The appeals court found that the trial court abused its discretion by not imposing conditions on the father’s visitation. Justice Norris, writing for the court, noted: “The state has a substantial interest in viewing homosexuality as errant sexual behavior which threatens the social fabric, and in endeavoring to protect minors from being influenced by those who advocate homosexuality.” On the issue of whether the trial court erred in its visitation decision, the appeals court sent it back with the following instructions: “Upon remand, the trial court may conclude that it is unable to devise safeguards, in which event its only alternative will be to terminate visitation until the children attain such an age that they will not be harmed or influenced by learning of their father’s homosexuality. Should the trial court conclude that adequate safeguards are available, it would appear that they should, at minimum, include the limitations appearing in the order appealed from, together with the added requirements that [the father] not reveal his lifestyle to the children, and that visitation take place in [the mother’s] presence, or under other sufficiently controlled circumstances.”
In a 1980 case, Haton v. Haton, the mother had been granted custody. Two years later, the father filed a motion for change of custody based on the allegation that the mother was a “practicing homosexual” and this had a detrimental effect on the children. The trial court agreed, and awarded custody to the father. The appeals court agreed that the mother’s sexual orientation and “homosexual” activities — there were no evidence of sexual acts, only that one of the children had entered the bed where the mother and her partner were sleeping and that on a few occasions the child saw the mother and another woman naked in bed — in the presence of her children was established, and that warranted a change in custody.
In a 1978 case, Whaley v. Whaley, a mother was given custody of the child. A few months later, custody was changed to the father based on the fact that the mother was romantically involved with a married man. The appeals court found the trial judge to be in error and admonished his decision as being punishment to the mother for what he considered to be morally wrong. The appeals court strongly asserted that this was not the standard in Ohio, since the state was concerned with the child’s welfare and a child must not be used to punish or reward conduct a judge might condemn or condone. The proper rule was, the court ruled, “that immoral conduct must be shown to have a direct or probable adverse impact on the welfare of the child in order to justify a change of custody.”
Custody and Visitation for Transgender Parents
Courts have used a parent’s gender identity or expression to deny, restrict or modify custody and visitation.
In a 1982 case, Cisek v. Cisek, the mother was awarded custody of the children with the father having visitation rights. After the father transitioned to a female, Joni, the mother, petitioned to have all visitation with him terminated. The court found: “There is a strong conclusion that absent adequate therapy, the two minor children are in harm’s way.” As a result, the appeals court reversed the trial court’s decree granting Joni visitation with the children. The court added: “We do not permanently preclude visitation by [Joni]. If and when, by growth and maturity of the children and proper evidence presented by the appellee, and with a thorough investigation by the trial court with expert investigation and advice, there may be a time when the trial court can order visitation by the appellee.”
Custody and Visitation for Same-Sex Co-Parents
Ohio courts have recently granted custody or visitation rights to the non-biological parent of a child in limited circumstances, however the majority of the precedent has not been in favor of granting rights to a non-biological parent.
Ohio law states: “In a divorce, dissolution of marriage, legal separation, annulment or child support proceeding that involves a child, the court may grant reasonable companionship or visitation rights to any grandparent, any person related to the child by consanguinity or affinity or any other person other than a parent, if all of the following apply: a) The grandparent, relative or other person files a motion with the court seeking companionship or visitation rights; b) The court determines that the grandparent, relative or other person has an interest in the welfare of the child; and c) The court determines that the granting of the companionship or visitation rights is in the best interest of the child. …
“In determining whether to grant parenting time to a parent ... or companionship or visitation rights to a grandparent, relative or other person, … in establishing a specific parenting time or visitation schedule, and in determining other parenting time matters ... or visitation matters, … the court shall consider all of the following factors: (1) The prior interaction and interrelationships of the child with the child’s parents, siblings and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling or relative of the child; (2) The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person’s residence and the distance between that person’s residence and the child’s residence; (3) The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule and the child’s and the parents’ holiday and vacation schedule; (4) The age of the child; (5) The child’s adjustment to home, school and community; (6) If the court has interviewed the child in chambers, … regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court; (7) The health and safety of the child; (8) The amount of time that will be available for the child to spend with siblings; (9) The mental and physical health of all parties; (10) Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation; (11) In relation to parenting time, whether 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 the adjudication; 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; (12) In relation to requested companionship or visitation by a person other than a parent, whether the person 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 the person, 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 the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of ... the Revised Code 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 previously has been convicted of an 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 the person has acted in a manner resulting in a child being an abused child or a neglected child; (13) 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; (14) Whether either parent has established a residence or is planning to establish a residence outside this state; (15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child’s parents, as expressed by them to the court; (16) Any other factor in the best interest of the child.”
In a 2010 case, Smith v. Rowell, a trial court judge granted visitation rights to a non-biological co-mother over the objections of the biological mother. The women has been in a relationship for seven years and the non-biological mother had participated in the insemination procedure, was present at the birth of their child, engaged in care taking responsibility for the child, and was addressed by a maternal name by the child (a combination of her first name and mom). The appellate court found the biological mother in contempt for failure to abide by the visitation order. The state Supreme Court dismissed the biological mother’s attempts to void the shared parenting agreement put in place by the trial court, but did not issue a written opinion.
In a 2004 case, a lesbian couple petitioned to have their shared custody agreement approved. The trial court dismissed the case, finding the custody agreement not in the child’s best interest because it provided non-parent benefits and “served no purpose while the couple resided in the same household.” The Court of Appeals of Ohio reversed this decision and held that the lack of a present controversy between the parents did not limit the couple’s ability to file for shared custody and the trial court must determine whether the shared parenting plan was in the best interests of the child.
In a 2002 case, a co-parent, Shelly, who the trial court states was ineligible to petition to adopt the children her partner had during their relationship, petitioned the court to have their shared custody agreement approved. The juvenile court asserted that it did have jurisdiction to determine whether a petition for shared custody is appropriate. The state Supreme Court concluded that the juvenile court had jurisdiction and sent it back to determine whether the agreement was in the best interests of the child.
In another 2002 case, In re: Cheyenne Madison Jones, the non-biological mother, Dvorak, petitioned for visitation rights. The trial court rejected this petition, stating that to obtain custody a non-parent must prove that a parent is unsuitable. The appeals court also rejected Dvorak’s argument that she was a de facto parent, finding: “The record clearly evidences a close relationship between [the child] and Dvorak; however, we know of no Ohio law that allows for ‘relinquishment’ to occur in a situation where a parent allows a non-parent to be a part of the child’s life while that parent still maintains care and support.” The court stated that it was up to the state Legislature to recognize a broader definition of “parent.”
In a 1997 case, Liston v. Pyles, the appeals court affirmed a judgment that determined that a former same-sex partner was not a “parent” as defined by Ohio law. Specifically, the court stated that none of the conditions mentioned in the law — divorce, dissolution of marriage, legal separation and annulment — existed in this case, and therefore, she did not have standing to seek visitation. The court asserted that it was within the purview of the state Legislature, not the courts, to determine visitation rights of same-sex partners.
In a 1995 case, Corn v. Corn, the stepfather petitioned for visitation rights. The trial court dismissed the petition on the grounds that the stepfather was unrelated to the child by blood or adoption. The Court of Appeals found this to be in error, as state law specifically allows a non-relative in certain circumstances (divorce, dissolution of marriage, legal separation or annulment) to petition for visitation rights, and it was up to the court to determine whether granting these rights would be in the best interests of the child. The appeals court sent the case back for the trial court to make this determination.
Citations: OHIO REV. CODE ANN §3109.04; OHIO REV. CODE ANN § 3109.051; In re marriage of Faulhaber, 2002 Ohio 3380 (Ohio Ct. App. 2002); Inscoe v. Inscoe, 700 N.E.2d 70 (Ohio Ct. App. 1997); Mohrman v. Mohrman, 565 N.E.2d 1283 (Ohio Ct. App. 1989); Conkel v. Conkel, 509 N.E.2d 983 (Ohio Ct. App. 1987); Roberts v. Roberts, 489 N.E.2d 1067 (Ohio Ct. App. 1985); Haton v. Haton, 1980 Ohio App. LEXIS 12500 (Ohio Ct. App. 1980); Whaley v. Whaley, 399 N.E.2d 1270 (Ohio Ct. App. 1978); Cisek v. Cisek, 1982 Ohio App. LEXIS 13335 (Ohio Ct. App. 1982); OHIO REV. CODE ANN § 3109.051; Smith v. Rowell, 2010 Ohio 260 (Ohio Ct. App. 2010); In the Matter of: J.D.M. 2004 WL 2272063 (Ohio Ct. App. 2004); In Re Bonfield 780 N.E.2d 241 (Ohio 2002); In re: Cheyenne Madison Jones, 2002 Ohio 2279 (Ohio Ct. App. 2002); Liston v. Pyles, 1997 Ohio App. LEXIS 3627 (Ohio Ct. App. 1997); Corn v. Corn, 1995 Ohio App. LEXIS 4010 (3rd Dist. 1995).
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Last Updated: 7/2/2010