Domestic Relations Resource Guide - Section I: Substantive Law

Child Support
A child is entitled to the same amount of expenditure that he/she would have received if the parents and the child continued to reside together. In an intact home, the income of the parents is pooled to spend for the benefit of the household members.

When the family is no longer an intact family, due to the termination of the marriage or a legal separation, the parental responsibility to feed, clothe, and provide necessities for child continues and is translated into a monetary obligation as a child support order. The amount of the support order is based on each parent’s income, the number of children, the cost of childcare, the cost of medical insurance, and various other factors. Based on these factors, the amount of child support is based on the child support schedule. [R.C. 3119.021; R.C. 3119.022]

At least once every four years, the Ohio Department of Job & Family Services (ODJFS) reviews the basic child support schedule to determine if the support orders and worksheets adequately provide for the needs of children who are subject to the child support orders based on economic data, labor market data, etc. [R.C. 3119.023]

1. Jurisdiction
   The domestic relations court has exclusive jurisdiction to order child support when the parties are married or were married to each other. [R.C. 3105.011(B)(1)]

   Juvenile court shall not exercise jurisdiction under R.C. 2151.23(A)(2) and (11), R.C. 2151.23(B)(4), or R.C. 2151.231. Domestic relations court shall have jurisdiction to determine child support under the following circumstances: [R.C. 2151.233(A)]

   • The child’s parents are married to each other.

   • The child’s parents were married to each other, but are not currently, and there is an existing custody or support order regarding the child or another child of the same parents over whom juvenile court does not have jurisdiction.

   • The determination is ancillary to the parents’ pending action for divorce, dissolution, annulment, or legal separation.

   The jurisdictional criteria in R.C. 2151.233(A) does not apply to cases brought under the Uniform Interstate Family Support Act of 2008 (UIFSA) [R.C. Chapter 3115] or when juvenile court grants custody of the child to a relative or places a child under a kinship care agreement. [R.C. 2151.234]

   Jurisdiction may be transferred from juvenile court to domestic relations court, upon the motion of either court or an interested party, over an action or an order it issued for child support or custody as follows: [R.C. 2151.235(A)]

   • If the parents of the child are married to each other and not parties to a divorce, dissolution, annulment, or legal separation.

   • If the parents of the child were married to each other but are not currently, and there is an existing custody or support order regarding the child or another child of the same parents over whom juvenile court does not have jurisdiction.

   • To the court exercising jurisdiction over a protection order [R.C. 3113.31] if the child or both parents of the child are subject to both a support order and the protection order.

   Any transfer of the support order as stated above requires the consent of the domestic relations court. [R.C. 2151.235(B)] Consent of the domestic relations court is not required if the parents of the child have a pending divorce, dissolution of marriage, legal separation, or annulment. [R.C. 2151.235(C)] The process for transferring and accepting jurisdiction is set forth in R.C. 2151.235(D) and (E).

   Other actions involving child support:

   • Authority for certain persons/entities to file an action for child support [R.C. 2151.231; R.C. 3111.78]

   • During the pendency of abuse, neglect, or dependency case proceeding [R.C. 2151.33(B)(2)]

   • When a child is committed as a result of a delinquency proceeding [R.C. 2151.36]

   • Temporary support order during pendency of a parentage action or order establishing parent-child relationship [R.C. 3111.111]

   • UIFSA [R.C. Chapter 3115; See also Special Issues – UIFSA]

   • Support action brought by grandparent providing support to child born to unmarried and un-emancipated minors [R.C. 3109.19]

   • Action by a parent objecting to an administrative support order [R.C. 3111.84]

   • Action against father once paternity acknowledgment established [R.C. 3111.29]

2. Income for the Purpose of Calculating Child Support
   Income is defined as either of the following: the gross income of the parent who is employed to full capacity; or the sum of the gross income of the parent and any potential income of the parent for a parent who is unemployed or underemployed. [R.C. 3119.01(C)(9)]

3. Gross Income
   Gross income is defined as the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, including the following: [R.C. 3119.01(C)(12)]

   • Salaries, wages, overtime pay, and bonuses as described in R.C. 3119.05(D)

   • Commissions, royalties, tips

   • Rents

   • Dividends, interests, pensions

   • Severance pay

   • Trust income, annuities

   • Social Security benefits, including retirement, disability, and survivor benefits that are not means-tested

   • Worker’s compensation benefits

   • Unemployment insurance benefits

   • Disability insurance benefits

   • Benefits that are not means-tested and that are received by and in the possession of the veteran who is the beneficiary for any service-connected disability under a program or law administered by the United States Department of Veterans Affairs or Veterans Administration;

   • Spousal support actually received

   • Income of members of any branch of the United States armed services or national guard including:

     • Amounts representing base pay

     • Basic allowance for quarters

     • Basic allowance for subsistence

     • Supplemental subsistence allowance

     • Cost of living adjustment

     • Specialty pay

     • Variable housing allowance

     • Pay for training or other types of required drills

   • Self-generated income

   • Potential cash flow from any source

   Gross income does not include the following: [R.C. 3119.01(C)(12)]

   • Benefits received from means-tested government administered programs, including Ohio Works First; prevention, retention, and contingency; means-tested veterans' benefits; Supplemental Security Income; Supplemental Nutrition Assistance Program; disability financial assistance; or other assistance for which eligibility is determined on the basis of income or assets;

   • Benefits for any service-connected disability under a program or law administered by the United States Department of Veterans Affairs or Veterans Administration that are not means-tested, that have not been distributed to the veteran who is the beneficiary of the benefits, and that are in the possession of the United States Department of Veterans Affairs or Veterans Administration;

   • Child support amounts received for children who are not included in the current calculation;

   • Amounts paid for mandatory deductions from wages such as union dues but not taxes, Social Security, or retirement in lieu of Social Security;

   • Nonrecurring or unsustainable income or cash flow items [R.C. 3119.01(C)(13)];

   • Adoption assistance, kinship guardianship assistance, and foster care maintenance payments made pursuant to Title IV-E Social Security Act of 1980 (as amended);

   • State kinship guardianship assistance described in R.C. 5153.163 and payment from the kinship support program described in R.C. 5101.881.

   The court is to include the lesser of a parent’s income from overtime, commissions, and bonuses for the purpose of calculating child support as follows:

   • Yearly average of all overtime, commissions, and bonuses received during the three years immediately prior to the date of the calculation;

   • Total overtime, commissions, and bonuses received during the year immediately prior to the date of the calculation. [R.C. 3119.05(D)]

4. Potential Income
   If a parent is determined to be voluntarily unemployed or voluntarily underemployed, “potential income” means both of the following: [R.C. 3119.01(C)(17)]

   • Imputed income that the court or agency determines the parent would have earned if fully employed as determined from the following criteria:

     • Parent's prior employment experience;

     • Parent's education;

     • Parent's physical and mental disabilities, if any;

     • Availability of employment in the geographic area in which the parent resides;

     • Prevailing wage and salary levels in the geographic area in which the parent resides;

     • Parent's special skills and training;

     • Whether there is evidence that the parent has the ability to earn the imputed income;

     • Age and special needs of the child for whom child support is being calculated under this section;

     • Parent's increased earning capacity because of experience;

     • Parent's decreased earning capacity because of a felony conviction;

     • Any other relevant factor.

   • Imputed income from any non-income-producing assets of a parent, as determined from the local passbook savings rate or another appropriate rate as determined by the court or agency, not to exceed the rate of interest specified in R.C. 1343.03(A)) if the income is significant.

   • Imputed income from the lifestyle and expenses paid by a person is often confused with statutory imputation of income. However, the statutory factors are not relevant when the person lives a lifestyle with income but claims little or no income. This is often a self employed person. In these cases, the court makes a forensic analysis of expenditures to determine what must be unclaimed income for that person. To avoid confusion on appeal, it is best to label this a forensic analysis rather than imputation of income.
   PRACTICE TIP:

   Imputing income is engaging in a legal fiction – the court is going to base a child support or spousal support order on a certain amount of income. This can be challenging the longer the person is un/underemployed. The usual consequence is that a large arrearage accrues because the person does not become employed at his/her previous income. It is easier to impute income in a pre-decree support order and then review the employment situation at the final divorce hearing. The usual consequence over time is that a large arrearage accrues because the person cannot or will not be re-employed at the previous income.

   If a person has always been a low-income wage earner and is currently not working, you may wish to find the following: “INSERT NAME presented no evidence that the person has any physical or mental health disabilities that inhibit his/her ability to earn a minimum-wage income on a full-time basis. The Court finds that INSERT NAME is voluntarily unemployed and imputes a minimum-wage income in the amount of $X.”

5. Voluntarily Unemployed or Underemployed
   Unless it would be unjust or inappropriate and, therefore, not in the child’s best interests, the court shall not determine a parent to be voluntarily unemployed or underemployed and shall not impute income to that parent if any of the following conditions exist: [R.C. 3119.05(I)]

   • The parent is receiving recurring monetary income from means-tested public assistance benefits, including cash assistance payments under the Ohio works first program established under R.C. Chapter 5107, general assistance under former R.C. Chapter 5113, Supplemental Security income, or means-tested veterans benefits.

   • The parent is approved for Social Security disability insurance benefits because of a mental or physical disability, or the court or agency determines that the parent is unable to work based on medical documentation that includes a physician's diagnosis and a physician's opinion regarding the parent's mental or physical disability and inability to work.

   • The parent has proven that the parent has made continuous and diligent efforts without success to find and accept employment, including temporary employment, part-time employment, or employment at less than the parent's previous salary or wage.

   • The parent is complying with court-ordered family reunification efforts in a child abuse, neglect, or dependency proceeding, to the extent that compliance with those efforts limits the parent's ability to earn income.

   • The parent is institutionalized for a period of twelve months or more with no other available income or assets.

   A parent who is incarcerated shall not be determined to be voluntarily un/underemployed and the court shall not impute income to that parent. [R.C. 3119.05(J)] A parent is “incarcerated” if he/she is serving a sentence for an offense or serving a term of imprisonment, jail, or local incarceration under a sentence imposed by a government entity. [R.C. 3109.05(Q)]

6. Averaging Income
   When appropriate, the court may average income over a reasonable period of years. [R.C. 3119.05(H)] This would apply in a situation where a person is self-employed or a person is employed in a business where the income fluctuates every year, whether the person works for the same employer from year to year or not, as long as the income is generated/accounted for in the same manner.

   PRACTICE TIP:

   Employee income may change over time. Courts should look at the change in compensation packages when determining the amount of the bonus or commission to include in the support calculation.

7. Social Security Disability/Supplemental Security Income
   Supplemental Security Income (SSI) is not gross income for child support purposes. [R.C. 3119.01(C)(12)(a)] A person receiving SSI cannot be found to be voluntarily un/underemployed.[R.C. 3119.05(I)(1)]

   Social Security benefits, including retirement, disability, and survivor benefits that are not means-tested, are income. [R.C. 3119.01(C)(12)(a)] If a parent is receiving Social Security Disability (“SSD”), the minor children will receive benefits (“derivative benefits”) from that parent.

   These “derivative benefits” are “non-means benefits received by the child(ren) subject to the order.” Those benefits are deducted from the SSD-receiving parent’s annual child support obligation. If the amount of the benefit exceeds that parent’s child support obligation, the support obligation for that parent is zero. [R.C. 3119.05(O)]

   PRACTICE TIP:

   The amount of the derivative benefit is inserted on line 20 of the child support worksheet in the column of the parent who is receiving the SSD, regardless of which parent is the actual payee of the derivative benefit (i.e., if obligor is receiving SSD but the obligee is the payee for the derivative benefit for the children, the derivative benefit belongs in obligor’s column on line 20).

8. Child Care Expense
   The cost of child care is to be shared by the parents and is part of the child support calculation. [R.C. 3119.05(P)] To be included in a child support calculation, the child care cost must: [R.C. 3119.05(P)(1)]

   • Be necessary for employment or for activities related to employment training;

   • Be verifiable by credible evidence;

   • Exclude any reimbursed or subsidized child care cost, including any state or federal tax credit for child care available to the parent/caretaker, whether or not claimed;

   • Not exceed the maximum statewide average cost estimate as determined in accordance with 45 C.F.R. 98.45. These amounts are based on the child(ren)’s age(s).

   If the obligor’s income is in the self-sufficiency reserve of the basic support schedule, the obligor’s share of the child care will be equal to the lower of the obligor’s income share of the child care cost or 50% of the child care cost. [R.C. 3119.05(P)(2)]

9. Health Insurance
   When the court issues or modifies a child support order, the court must determine the persons responsible for providing health care coverage for the children who are the subject of the child support order. The obligee is presumed to be the person responsible for providing health insurance coverage, unless that presumption is rebutted. The order must also state that the obligor and obligee are both liable for health care expenses not paid by insurance, according to a formula established by the court. [R.C. 3119.30(A) and (B)]

   This formula is often based on the income percentage of the parties, based on the child support computation worksheet.

   Relevant statutory definitions: [R.C. 3119.29]

   • "Health care coverage" means an order that provides for a combination of health insurance coverage or a public health care plan, and payment of costs of premiums, copayments, and deductibles, or payment for medical expenses incurred on behalf of the child.

   • "Health insurance coverage" means accessible private health insurance that provides primary care services within thirty miles from the residence of the child subject to the child support order.

   • "Reasonable cost" means that the cost of health insurance coverage for the children who are the subject of the child support order does not exceed an amount equal to five percent of the annual income of the person who is providing the coverage.

   PRACTICE TIP:

   The reason for presuming that the obligee will provide health insurance is that the obligee is usually the parent who takes the children to the health care provider and will need to have access to the health insurance provider. Therefore, it is easier for the obligee if he/she is providing the health insurance and can easily contact the insurance company if there is any issue.

   The court may consider the following factors to rebut the presumption when determining if the child support obligor is the appropriate parent to provide health insurance coverage: [R.C. 3119.30(B)(1)]

   • The obligor already has health insurance coverage for the child that is reasonable in cost;

   • The obligor already has health insurance coverage in place for the child that is not reasonable in cost, but the obligor wishes to be named the health insurance obligor and provide coverage [R.C. 3119.302(A)(2)(a)];

   • The obligor can obtain health insurance coverage for the child that is reasonable in cost through an employer or other source. For employer-based coverage, the court or child support enforcement agency shall consider the length of time the obligor has worked with the employer and the stability of the insurance;

   • The obligee is a non-parent individual or agency that has no duty to provide medical support.

   PRACTICE TIP:

   If the obligor, who wishes to provide the health insurance coverage, lives in a different region or state than the children, many of the children’s health care providers may not be considered “in network” for the obligor’s health insurance coverage. This may be a reason not to order obligor to provide health insurance coverage.

   If the cost of health insurance coverage to either parent exceeds a reasonable cost, that parent shall not be ordered to provide health insurance for the child, unless: [R.C. 3119.302(A)(2)]

   • The parent requests to obtain or maintain the health insurance that exceeds a reasonable cost;

   • The court determines that it is in the child’s best interest for a parent to obtain/maintain health insurance that exceeds a reasonable cost and the cost will not impose an undue financial burden on either parent. The court must include facts and circumstances to support the determination in the court order.

   If health insurance is available at a reasonable cost to either parent and the court determines that it is not in the child’s best interest to utilize the insurance, the court must include the facts and circumstances to support the determination in the court order. [R.C. 3119.302(A)(3)]

   The total out-of-pocket cost for health insurance premiums to a party who is providing coverage for the child who is the subject of the child support order is the number that is included in the child support calculation. The cost is not pro-rated based on the number of persons who are covered by the health insurance. [R.C. 3119.30(E)]

10. Overnights
    The court must determine the number of overnights of parenting time annually for each parent pursuant to a court order. The court shall reduce a parent’s support obligation by ten percent for a parent who has court-ordered parenting time that equals or exceeds 90 overnights annually. [R.C. 3119.051(A)] This adjustment may be eliminated at the request of the obligee if the obligor, without just cause, has failed to exercise court-ordered parenting time. [R.C. 3119.051(B)]

    If court-ordered parenting time exceeds 90 overnights annually, the court must consider whether to grant a deviation beyond the ten percent deviation. [R.C. 3119.231(A)] If court-ordered parenting time is equal to or exceeds 147 overnights annually, and the court does not grant a deviation for parenting time, then the court must specify in the order the basis for the decision not to grant a deviation. [R.C. 3119.231(B)]

11. Cash Medical Support
    A child support calculation on the child support worksheet will include a cash medical support amount. The amount is to be determined by ODJFS pursuant to R.C. 3119.302(B) based on the number of children subject to the order and split between the parties based on income share. [R.C. 3119.30(C)] The cash medical support is paid as part of the support order to the obligee unless the children are on Medicaid; in that case, the cash medical support is paid to ODJFS. [R.C. 3119.30(D)]

    The annual cash medical amount is determined by the U.S. Department of Health & Human Services. [R.C. 3119.302(B)] Beginning in 2019, that amount is $388.70 per child per year for each child of the order. The calculation on the child support worksheet will determine, based on the number of children and the income shares, each parent’s percentage of the cash medical support. This amount is each parent’s contribution towards ordinary medical expenses for the child(ren). Any amounts over $388.70 per year for one child ($777.40 for two children, etc.) will be considered extraordinary medical expenses.

    A cash medical support order is administered, reviewed, modified, and enforced as part of the child support order. [R.C. 3119.303]

    Both parents may be ordered to provide health care coverage and pay cash medical support if the obligee is a third-party nonparent or is an agency that has no duty to provide medical support. [R.C. 3119.30(F)]

12. Child Support Calculation
    After the court completes the child support calculation on the child support computation worksheet, the court must address the issue of any deviations—whether there should be, or not be a deviation, and how much of a deviation.

13. Minimum Child Support Order
    The court may issue a minimum child support order in the amount of $80 per month for all the children subject to that order or the court may issue an order of less than $80 monthly or an order that the obligor is not required to pay any child support. The circumstances may include an obligor’s medically verified or documented physical or mental disability or institutionalization in a mental health facility or any other appropriate circumstances. [R.C. 3119.06]

    If the court issues a minimum child support order and the obligor is receiving means-tested public assistance, the obligation to pay support is suspended and the arrearage will accrue on a monthly basis, provided the obligor is complying with any seek work orders issued pursuant to R.C. 3119.06 and R.C. 3121.03(D)(2).

    If the combined annual income of both parents is less than the $8,400 minimum of the support schedule, the court shall apply the minimum support amount set forth in R.C. 3119.06.

14. Combined Gross Income Greater Than or Less Than Support Income Schedule [R.C. 3119.04]
    If the combined annual income of both parents is greater than the maximum annual income on the basic support schedule set forth in R.C. 3119.021 ($336,467.04 in 2019), the court shall determine the amount of the obligor’s support obligation on a case-by-case basis and consider the needs and the standard of living of the child(ren) who is/are the subject of the support order and of the parents. The court will compute a support obligation that is based on no less than the maximum annual income unless the court determines that it would be unjust or inappropriate and, therefore, not in the child(ren)’s best interest. The court will include that determination and the findings to support the determination in the order.

15. Deviations
    The court may order child support in an amount that deviates from the support calculation on the worksheet if, based on the factors set forth below, it determines that the basic support calculation would be unjust or inappropriate and, therefore, not in the child’s best interest. [R.C. 3119.22] The court must include in the order the amount of child support from the child support calculation, and the findings of fact supporting its determination that a deviation is warranted.

    The court may consider the following factors in determining whether to grant a deviation: [R.C. 3119.23]

    • Special and unusual needs of the child, including needs arising from the child(ren)’s physical or psychological condition;

    • Other court-ordered payments;

    • Extended parenting time or extraordinary costs associated with parenting time, including extraordinary travel expenses when exchanging the child for parenting time;

    • The financial resources and the earning ability of the child;

    • The relative financial resources, including the disparity in income between parties/households, other assets, and the needs of each parent;

    • The obligee’s income, if the obligee’s annual income is equal to or less than 100% of the federal poverty level;

    • Benefits that either parent receives from remarriage or sharing living expenses with another person;

    • The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both parents;

    • Significant in-kind contributions from a parent, including direct payment for lessons, sports equipment, school, or clothing;

    • Extraordinary work-related expenses incurred by either parent;

    • The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married;

    • The educational opportunities that would have been available to the child had the circumstances requiring a child support order not arisen;

    • The responsibility of each parent for the support of others, including support of a child(ren) with disabilities who are not the subject of the support order;

    • Post-secondary educational expenses paid for by a parent for the parent’s own child, regardless of whether the child is emancipated;

    • Costs incurred or reasonably anticipated to be incurred by the parents in compliance with court-ordered reunification efforts in child abuse, neglect, or dependency cases;

    • Extraordinary child care costs required for the child that exceed the maximum state-wide average cost estimate [R.C. 3119.05(P)(1)(d)] including extraordinary costs associated with caring for a child with specialized physical, psychological, or educational needs;

    • Any other relevant factor.

    If the court issues a shared parenting order [R.C. 3109.04], the court shall order child support based on the support calculation on the worksheet unless the court determines that the amount would be unjust or inappropriate and not in the child(ren)’s best interest based on the factors in R.C. 3119.23. The court shall also consider extraordinary circumstances as the basis of a deviation. [R.C. 3119.24] The court must include in the order the amount of child support from the child support calculation, and the findings of fact supporting its determination that a deviation is warranted.

    “Extraordinary circumstances” includes all of the following:

    • The ability of each parent to maintain adequate housing for the children;

    • Each parent’s expenses, including child care expenses, school tuition, medical expenses, dental expenses, and any other expenses the court considers relevant; and

    • Any other circumstances the court considers relevant.

    PRACTICE TIP:

    It is the best practice to express the deviation as a percentage or a dollar amount. The court should use a percentage deviation if the basis of the deviation is overnights or other parenting time issues—something that cannot be objectively determined by a number. The court should use a dollar amount if the basis of the deviation is an objectively determined amount—cost for activities, cost for transportation, etc. If the CSEA conducts an administrative review, the agency cannot apply a deviation if it cannot determine the monetary or percentage value of the deviation. [R.C. 3119.63(B)]

16. Tax Exemptions
    Whenever the court issues, modifies, or reviews a child support order, the court shall designate which parent may claim the child who is the subject of the child support order as dependents for federal income tax purposes. [R.C. 3119.82]

    If the parties agree on which parent should claim the child as dependent, the court shall designate that parent as the parent who may claim the child. If the parties do not agree, the court, in its order, may permit the parent who is not the residential parent and legal custodian to claim the child as dependents for federal income tax purposes only if the court determines that this furthers the best interest of the child. With respect to orders, the court must modify, review, or reconsider that the payments for child support are substantially current as ordered by the court for the year in which the child will be claimed as dependent.

    In cases in which the parties do not agree which parent may claim the child as dependent, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and child, the amount of time the child spends with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the child.

    If the court determines that the non-residential parent may claim the child as dependent for federal income tax purposes, it shall order the residential parent to take whatever action is necessary pursuant to section 152 of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended, to enable the non-residential parent to claim the child as dependent for federal income tax purposes in accordance with the order of the court.

17. Child Support Order
    The child support order must contain the following:

    • Specific provisions for regular, holiday, and vacation parenting time [R.C. 3119.08]

    • Designation of which parent is the obligor and which parent is the obligee (if a third party is the legal custodian of the child(ren), then each parent is a support obligor and is required to pay support) [R.C. 3119.07(C)]

    • Monthly amount of the child support order, including the two percent processing fee [R.C. 3119.27(A)]; do not call the processing fee “poundage”

    • Amount of the cash medical support

    • Effective date of the support order

    • If the support in the order deviates from the support amount on the worksheet, include specific findings to support the deviation based on the statutory factors, state that the basic support calculation would be unjust or inappropriate and not in the child(ren)’s best interest, and express the deviation as a dollar amount or as a percentage.

    • Statutory language [R.C. 3121.27 - 3121.33]

    • Designation of which parent is providing health insurance or a finding that private health insurance is not available

    • State the formula for dividing any extraordinary medical expenses

    • Allocation of the income tax dependent exemptions

18. Duration of a Child Support Order
    Child support terminates when the child reaches age 18 or graduates from high school, whichever occurs second. Support will continue up to age 19 as long as the child attends an accredited high school on a continuous and full-time basis. [R.C. 3119.86(A)(1)(c)]

    Support will not continue past age 19 unless specifically provided by court order. Child support will continue beyond the child’s 18th birthday only under the following circumstances: [R.C. 3119.86(A)(1)(a)-(c)]

    • The child is attending an accredited high school on a continuous and full-time basis.

    • The child is mentally or physical disabled and is incapable of supporting or maintaining themselves (i.e., the child is a Castle child). [Castle v. Castle, 15 Ohio St.3d 279 (1984)]

    • The child’s parents have agreed to continue support beyond the child’s 18th birthday under the terms of a separation agreement incorporated into a decree of divorce or dissolution.

19. Modification
    Motion Filed with the Court
    If a party requests that the court modify a child support order, the court must recalculate the amount of support in accordance with the schedule and the child support computation worksheet. If the recalculated amount is ten percent more or ten percent less than the support required to be paid under the existing support order, that difference shall be considered a change of circumstance substantial enough to require a modification of the child support amount. [R.C. 3119.79(A)]

    If the court determines that the child’s medical needs are not being met due to inadequate health insurance coverage, such inadequate coverage also constitutes a change of circumstance substantial enough to require a modification of the support order. [R.C. 3119.79(B)]

    PRACTICE TIP:

    The court is to consider the child support amount in existence, prior to any deviation, for the purpose of evaluating the ten percent deviation.

    If the court determines that the support order should be modified due to a substantial change of circumstances that was not contemplated at the time the original support order was issued or at the time of the last modification of the support order, the court shall modify the support required to be paid to comply with the schedule and the worksheet, unless there is a deviation pursuant to R.C. 3119.22.

    PRACTICE TIP:

    If the court issued a spousal support order at the time the original child support order issued, and the spousal support order, by its terms, terminated prior to the termination of the child support order, such termination was contemplated at the time the original child support order issued and, therefore, will not be a basis for modification of the child support order. The court order should state, at the time the original spousal support order and child support order issue, that termination of the spousal support order is a change of circumstances for the purpose of modifying the child support order.

    The court has jurisdiction to order the modified child support order back to the date each party was served with notice of the motion to modify the support order, including jurisdiction to order interim/temporary child support. [R.C. 3119.84 ]

    Administrative Review/Order
    The office of child support or child support enforcement agency (CSEA), created within the county department of job and family services, is required to establish and administer rules for the establishment, collection, and enforcement of support orders that meet the requirements of Title IV-D of the Social Security Act and any rules adopted under Title IV-D. The CSEA’s responsibilities, duties, and processes are set forth in R.C. Chapter 3125.

    If the CSEA issues an administrative recommendation modifying the child support order, the CSEA is required to send each party, by ordinary mail, a copy of the administrative recommendation and a notice that each party has 14 days to request an administrative hearing or a court hearing. [R.C. 3119.63(C)-(D)] If neither party timely requests a hearing, the administrative recommendation is submitted to the court to be included in a revised court child support order. [R.C. 3119.63(E)]

    If a party timely requests an administrative hearing, CSEA is to conduct a hearing to determine if the administrative recommendation should be revised. After the hearing, CSEA is to issue to the parties a copy of the revised administrative recommendation and a notice that each party has 14 days to request a court hearing. [R.C. 3119.63(F)-(G)] If neither party timely requests a court hearing, the administrative recommendation is submitted to the court to be included in a revised court child support order. [R.C. 3119.63(H)]

    If a party requests a court hearing, the court must provide the parties and CSEA with 30 days’ notice of the date and time of the hearing. [R.C. 3119.67] The court shall order the parties to provide the income information and health insurance and health care information listed in R.C. 3119.68.

    CSEA is not required to find a ten percent deviation between the current support order and the recalculated support amount. After a court hearing, the court is to determine only if the amount calculated by CSEA is appropriate or not appropriate—there is no ten percent deviation requirement. [R.C. 3119.70]

    At an administrative hearing, CSEA must consider, and at a court hearing, the court shall consider the cost of health insurance coverage and a modification of the person required to provide health insurance coverage for the children who are the subject of the support order. [R.C. 3119.73]

    The effective date of the revised child support order, after a court hearing on a party’s objections to the administrative recommendation, must be the first day of the month following the date on which the administrative review of the order began; this date is also set forth in the administrative recommendation. [R.C. 3119.71(B)]

    Parent Active Military Service
    If a parent who is ordered to pay child support is called to active military service (service for a period of more than 30 days), they may request a review of the child support order; the request must be submitted to CSEA. [R.C. 3119.77(B)]

    Within three days, CSEA must send the parties notice of the review and the date it will begin. A call to active military service is a change of circumstances substantial enough to require a review of the child support amount. [R.C. 3119.771(A)]

    If the support is modified, the effective date is the latter of the date of the notice of the review or the first day of the month in which the obligor’s active military service begins. [R.C. 3119.772] The obligor must provide written notice of the termination of the active military service to CSEA not later than the last day of the month in which the service ends. [R.C. 3119.773] The modification will terminate and the prior amount of support be reinstated as of the first day of the month following the date that the obligor’s active military service ends. [R.C. 3119.772]

    Arrearage Payments or Credit Payments
    The effective date of a child support order may create an arrearage. An order for payment on any arrearage owed by an obligor is rebuttably presumed to be at least 20 percent of the current support payment. A court may consider evidence of household expenditures, income variables, extraordinary health care issues, and other reasons for a deviation from the 20 percent presumption. [R.C. 3123.21]

    Conversely, the effective date of a child support order may create a credit. CSEA does not collect a child support credit in the same manner as an arrearage is collected. Depending on the amount of the credit and the time remaining until the support order terminates, the obligor may request that the support payments terminate early in order to reduce the credit, the obligor may request an offset of a portion of the credit each month against the order, or the obligor may request that the credit “ride” on the account until one of the parties wishes to take some other action.

20. Termination
    The party receiving child support must notify, and the party paying child support may notify, CSEA of any reason for which the child support should terminate. A willful failure to notify CSEA is contempt of court. [R.C. 3119.87]

    Reasons for terminating a support order include all the following: [R.C. 3119.88]

    • The child attains the age of majority if the child no longer attends an accredited high school on a full-time basis and the child support order requires support to continue past the age of majority only if the child continuously attends such a high school after attaining that age;

    • The child ceases to attend an accredited high school on a full-time basis after attaining the age of majority, if the child support order requires support to continue past the age of majority only if the child continuously attends such a high school after attaining that age;

    • A termination condition specified in the court child support order has been met for a child who reaches nineteen years of age;

    • The child's death;

    • The child's marriage;

    • The child's emancipation;

    • The child's enlistment in the armed services;

    • The child's deportation;

    • Change of legal custody of the child;

    • The child's adoption;

    • The obligor's death;

    • The grandparent to whom support is being paid or a grandparent who is paying support reports that the grandparent's support order should terminate as a result of one of the events described in R.C. 3109.19(D);

    • Marriage of the obligor under a child support order to the obligee, if the obligor and obligee reside together with the child.

21. Child Support Enforcement Agency Administrative Process
    CSEA’s responsibilities include the following: [R.C. 3125.01 – 3125.03]

    • The location of absent parents;

    • Establishment of parentage;

    • Establishment and modification of child support orders;

    • Establishment and modification of medical support orders;

    • Enforcement of support orders;

    • Collection of support obligations; and

    • Any other actions appropriate to child support enforcement.

    CSEA is also responsible for collecting spousal support orders, if spousal support is ordered to be paid through CSEA. [R.C. 3121.441; R.C. 3125.05]

22. Collection
    The court is to issue an order requiring the withholding of support from the obligor’s income or assets. [R.C. 3121.02] The court may also require an obligor to post a cash bond. R.C. 3121.03(C) If the obligor is unemployed, has no income, and has no cash assets, the court shall issue an order requiring the obligor to seek employment, to register with OhioMeansJobs and to notify CSEA when the party becomes employed. [R.C. 3121.03(D)(1)] Other processes and options available to the court and to CSEA for collection of a support order are set forth in R.C. Chapter 3121.

    PRACTICE TIP:

    In all likelihood, if a person is unable to pay child support, they will be unable to post a bond. If the court requires a person to seek work, then the court should be mindful of enforcing that order—will the obligor return for periodic reports on their efforts, does the obligor need to submit documentary evidence to the court, etc.

23. Contempt
    “Default” is defined as a failure to pay child support in an amount that is equal to or greater than the amount due for one month. [R.C. 3121.01(B)] If an obligor fails to comply with an administrative child support order, CSEA may request that the court find the obligor in contempt. [R.C. 3121.37]

    An obligor may be found in contempt for failure to follow a court order to pay child support. [R.C. 2705.02(A)] The person to whom the support is owed, or CSEA, or the prosecuting attorney may initiate an action for contempt. [R.C. 2705.031(B)]

    In addition to a motion for contempt, the alleged contemnor must be served with a summons to appear in court on a date certain. The summons must include all the following:

    • Notice that failure to appear may result in the issuance of warrant for arrest, and in cases involving alleged failure to pay support, the issuance of an order for the payment of support by withholding an amount from the personal earnings of the accused or by withholding or deducting an amount from some other asset of the accused;

    • Notice that the accused has a right to counsel, and that if indigent, the accused must apply for a public defender or court appointed counsel within three business days after receipt of the summons;

    • Notice that the court may refuse to grant a continuance at the time of the hearing for the purpose of the accused obtaining counsel, if the accused fails to make a good faith effort to retain counsel or to obtain a public defender;

    • Notice of the potential penalties that could be imposed upon the accused, if the accused is found guilty of contempt for failure to pay support;

      • 1st Offense: A fine of not more than $250, a jail sentence of up to 30 days, or both.

      • 2nd Offense: A fine of not more than $500, a jail sentence of up to 60 days, or both.

      • 3rd or Subsequent Offense: A fine of not more than $1000, a jail sentence of up to 90 days, or both. [R.C. 2705.05(A)]

    • Notice that court may grant limited driving privileges under R.C. 4501.021 pursuant to a request made by the accused, if the driver's license was suspended based on a notice issued pursuant to R.C. 3123.54 by CSEA and if the request is accompanied by a recent noncertified copy of a driver's abstract from the registrar of motor vehicles.

    If the alleged contemnor is served and fails to appear, the court may issue a bench warrant. [R.C. 2705.031(D)] Due to the quasi-criminal nature of the proceedings, the court may not proceed with a hearing on the motion for contempt if the contemnor is not present. If the court issues a bench warrant, the court must also set a bond. If the bench warrant is served on the contemnor, the court must have a bond hearing to determine if the bond is to remain in the same amount or be modified. The alleged contemnor may also waive the bond hearing and proceed with a hearing on the contempt motion. This waiver should be a written waiver.

    The alleged contemnor should be advised of the possible penalties and of their right to speak with counsel. Courts should grant a continuance if one is requested to speak with counsel. The alleged contemnor should be provided with an order, signed by the contemnor, of the new hearing date. If the alleged contemnor wishes to proceed with a hearing on the contempt motion, they should sign a waiver of counsel.

    Contempt Hearing
    When the court proceeds with a hearing on the motion for contempt, the movant (CSEA/obligee/etc.) must establish the following:

    • There is a court order requiring payment of support;

    • The contemnor knew that the order existed; and

    • The contemnor violated the order.

    Close Window

    A standard that requires proof offered in a case to be highly likely or certain – more than a preponderance of evidence, but less than beyond a reasonable doubt.

    The burden of proof is clear and convincing. Once the burden of proof is met, the contemnor has to show that the contemnor was unable to comply with the order. It is a defense to an allegation of contempt that the alleged contemnor was incarcerated during the period during which support was not paid pursuant to the order. A contemnor’s medical condition may be a defense to the contempt allegation.

    If the contemnor is found in contempt, the court must issue a purge order. A civil contempt finding renders punishment that is remedial or coercive, not punitive—to provide the contemnor with an opportunity to comply with the order. The purge order cannot be to simply pay support as ordered; the purge order should be to reduce the arrearage to a certain amount by a date certain.

    If the contemnor has met the purge order, then he/she has purged the contempt finding and the contempt is dismissed. If the contemnor has not met the purge order, then the court may do one of the following:

    • Conduct a purge review hearing to provide contemnor with additional time to meet the purge order;

    • Stay the sentence if the contemnor has made significant efforts, and do not continue the hearing; or

    • Impose the jail sentence.

    Local practices vary in how courts conduct a purge review. As examples, courts may conduct a purge review hearing or a sentencing purge hearing; and other courts do not schedule a hearing.

    The imposition of any penalty for contempt does not eliminate the contemnor’s obligation to pay any past, present, or future support obligation. The court has jurisdiction to make a finding of contempt for the failure to pay support and to impose the statutory penalties in all cases in which past due support is at issue even if the duty to pay support has terminated. [R.C. 2705.031(E)]

    If the motion for contempt is brought by the obligee — as opposed to CSEA — and the contemnor is found in contempt, the court needs to address the issue of attorney fees and court costs. The court must assess all court costs arising out of the contempt proceeding against the contemnor and require the contemnor to pay any reasonable attorney’s fees of any adverse party and must assess interest on any unpaid amount of child support. [R.C. 3109.05(C)] The interest is to be computed at the rate specified in R.C. 1343.03.

Parental Rights and Responsibilities (PRR)
Parental rights and responsibilities are a compilation of rights and responsibilities not clearly defined by statute. This is equivalent to the former phrase “custody and control”; person with “custody” has “right to ultimate legal and physical control” of child [Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589 and Braatz v. Braatz, 85 Ohio St.3d 40, 1999-Ohio-203]

Rights typically associated are:

• To physical possession

• To control and manage the child’s earnings and property

• To teach moral and ethical standards

• To discipline

• To consent to and make decisions concerning medical treatment, education, worship, and religious training, activities, etc.

• To control the child’s associations

• To provide information necessary to assert the above rights

Responsibilities typically associated are:

• To ensure that the child is properly fed, clothed, and provided with necessities of life (basic needs) and health care

• To provide a safe environment

• To pay for the child’s commission of tortious acts [R.C. 2307.70, R.C. 3109.09, R.C. 3109.10, R.C. 4507.07]

• To ensure a child’s education

In allocating parental rights and responsibilities, courts need to consider the child’s fundamental right to a meaningful relationship with both parents and to have those relationships protected. Courts may designate one party as the child’s residential parent and legal custodian, whereby one parent has complete control over the physical and legal care of that child and then allocate other parental rights and responsibilities between the two parents. [R.C. 3109.04(A)(1)] Alternatively, courts can order shared parenting where each parent is the child’s residential parent and legal custodian.

1. Jurisdiction
   Original Subject Matter Jurisdiction
   Upon granting a divorce, dissolution, annulment, or legal separation, the court has the jurisdiction to make an order for the care and maintenance of minor children. Failure to allocate parental rights and responsibilities may result in a judgment being viewed as interlocutory as to the termination of the marriage and may not be a final appealable order. The court must make an express order granting or denying parenting time.

   • R.C. 3105.21: Order for disposition, care, and maintenance of children in a cause for divorce, annulment, or legal separation

   • R.C. 3109.11: Companionship or visitation for parents or other relatives of deceased parent

   • R.C. 3109.12: Companionship or visitation for parents or other relatives of a child born to an unmarried mother

   • R.C. 3111.13(C): Parenting rights, responsibilities, parenting time for father after paternity is established

   • R.C. 3113.31(E)(1)(d): Parenting orders in a domestic violence civil protection order proceeding

2. Certification of Jurisdiction to Juvenile Court
   If it is in the best interest of the child for neither parent to be designated residential parent, the court may commit the child to a relative of the child or certify to juvenile court. [R.C. 3109.04(D)(2)] If the court finds that neither parent is suitable, the consent of juvenile court is not required. [R.C. 3109.06] There can be differing treatment by various jurisdictions between best interest and unsuitability.

   Upon certification, the juvenile court has exclusive jurisdiction. In cases involving certification to juvenile court, the domestic relations court has no statutory authority to issue an order granting custody to a children’s services agency. [State ex rel. Richland Cty. Children Services. v. Richland Cty. Court of Common Pleas, 152 Ohio St.3d 421, 2017-Ohio-9160)]

   If a court has issued parenting rights and responsibilities and a parent dies, the court’s jurisdiction does not abate, but a court may certify the matter to the juvenile court and a juvenile court has exclusive jurisdiction. Additionally, cases involving non-relative custody issues must be certified to juvenile court. [R.C. 3109.04(D)(2)]

3. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) [R.C. Chapter 3127]
   This chapter addresses interstate recognition and enforcement of child custody orders.

   • R.C. 3127.15: Factors to determine whether the court has jurisdiction to make an initial determination in a child custody proceeding

   • R.C. 3127.09: The court may communicate with the non-Ohio court if there is an inter-state proceeding and must provide parties an opportunity to participate.

   • R.C. 3127.17: The court may not modify a custody determination from another state unless the court has jurisdiction under R.C. 3127.15 and one of the factors in this section apply.

   • R.C. 3127.21 and R.C. 3127.22: Basis for declining jurisdiction—inconvenient forum and/or unjustifiable conduct

   Additional Resources

   • Supreme Court of Ohio’s Domestic Relations Bench Card, Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

4. Continuing Jurisdiction
   The court has ongoing jurisdiction to modify parenting orders.

5. Termination of Jurisdiction

   • Child reaches age 18

   • Child is deceased

   • Child gets married

   • Court relinquishes jurisdiction to another state or country under the UCCJEA

   • Case is certified to juvenile court

6. Case Management
   Case Management and Pretrial Procedure
   The goal of case management and pre-trial procedure is to provide a more efficient court processes for the parties. These procedures strive to minimize the emotional trauma and financial hardship caused by uncertainty and parental conflict.

   • Ascertain personal jurisdiction (service of process)

   • Determine whether to exercise subject matter jurisdiction pursuant to UCCJEA

   • Determine necessary parties and availability of parties [Joinder under Civ.R. 18 and Civ.R. 20]

   • Consult standard parenting time guidelines [R.C. 3109.051(F)(2)]

   • Order parenting education if required by local rule

   • Make appropriate court appointments, referrals, and orders to submit and establish appropriate report due dates (e.g., mediation, examination, neutral evaluation, investigation, custody evaluation, etc.) See also Section F: Third Party Stakeholders

   • Appoint a guardian ad litem for the child if necessary [R.C. 3109.04(B)(2)(a)]

   • Appoint an attorney for the child where applicable [Civ.R. 75(B)(2), Sup.R. 48.02(A)]

   • Establish a discovery schedule including dates when discovery must be completed and any motions to compel filed [Civ.R. 16]

   Pretrial and Scheduling Orders
   Pretrial and scheduling orders are discretionary unless required by local court rule. Courts should consider:

   • Time necessary to obtain evidence to fully and fairly present case balanced with parents’ and child’s need for final resolution within reasonable time

   • Time needed for preparation of guardian ad litem report, if appointed

   • Applicable Supreme Court time guidelines for case processing [See Sup.R. 39(A) and Appendix A, Form D]

   • Deadline to exchange witness lists and pre-marked exhibits; number of copies to bring to hearing

   • Remote hearing protocol and exchange of exhibits to witnesses appearing remotely

   • Presentation of testimony and order of witnesses; taking witnesses out of order

   • Docket time allotted

   • Day-to-day until complete trials vs. non-consecutive trial dates/engaged counsel

   • Formal pretrial statements/memoranda/briefs to identify issues

   • Continuances

   • Preparation for and attendance at trial

   • Time for an in camera interview

   Unless the court orders otherwise, pretrial hearings on motions must be no less than 14 days from service for non-evidentiary hearings and no less than 28 days from service for evidentiary hearings. [Civ.R. 6(C)(2)]

   Addressing Discovery and Evidentiary Issues

   • Rules of Evidence apply

   • Privileged communications [R.C. 2317.02]

     • Attorney

     • Physician

     • Clergy

     • Counselor, social worker, therapist

     • Psychologist [R.C. 4732.19]

     • Mediator [R.C. 2710.03; R.C. 3109.052(C)]

   • Waiver of privilege, mandatory reporters, etc

   • Discovery disclosures, motions to compel and protective orders

   • Stipulations

   • Motions in limine

   • In camera inspection of records

   • Noncompliance with trial and discovery subpoenas

   Facilitating Settlement
   A settlement can make the court process more efficient and less adversarial. Courts should consider:

   • Appropriateness of judicial officer participation in settlement conference and use of dispute resolution processes

     • Mediation

     • Neutral evaluation

     • Parent coaching

     • Parenting coordination

   • Problem-solving approach and strategies (e.g., collaborative brainstorming, “divide and conquer” large complex problem into smaller solvable parts, building the agreement, parent coaching, etc.)

   • Value of involving the attorneys

   • Caucusing and communication of settlement positions

   • Future-focused, interest-based, reality testing of proposed solutions

   • Economics of litigation process

   • Value of parties’ self-determination in outcome

7. Special Considerations - Self-Represented Litigants
   Litigants have a right to self-representation and access to justice. Courts have a responsibility to provide access to the justice system within the ethical confines of the Ohio Code of Judicial Conduct. However, self-represented litigants are held to the same standard as attorneys.

   The courts can provide resources to self-represented parties by:

   • Engaging in a customer-focused service attitude

   • Providing necessary information and forms, written in plain language, on their websites

   • Establishing self-help centers or employing compliance officers to review pleadings

   • Understanding how the self-represented litigant experiences the court process (e.g., informed by perceptions, unaware of court procedures and what to expect)

   Additional Resources

   • Supreme Court of Ohio, Access to Justice Resources

   • Ohio Legal Help

   • Supreme Court of Ohio’s Uniform Domestic Relations and Juvenile Standardized Forms

   • National Center for State Court, CourTool Measure 1: Access and Fairness Survey

8. Special Considerations - Active Military Service Members
   If one or more of the parents involved is an active-duty service member, consult the Servicemembers Civil Relief Act [SCRA]. Active military service is defined in R.C. 3109.04(J)(2) and uniformed services in R.C. 3109.04(J)(5).

   • R.C. 3109.04(I) sets forth the procedure for an expedited hearing for a parent on active military service in the uniformed services.

     • A parent subject to a parenting rights/responsibilities order who receives an order for active military service must notify the other parent within three days of receiving service order.

     • Upon receipt of notice, either parent may apply for expedited hearing for allocation or modification proceedings.

     • The hearing must be given priority and must be not more than 30 days after receipt of the application for hearing.

     • A parent who receives an order for active military service may request a temporary order for the period of their service for an order:

       • Delegating their parenting time be given to their relative;

       • That the child may be made available for electronic contact; or

       • Other parent must facilitate contact with the child via electronic or telephonic means. [R.C. 3109.051(M)]

   • A mandatory 90-day stay may be requested in writing with communication of facts as to military duty and date of availability, and communication from commanding officer that leave is not presently authorized. Additional stays may be granted at the court’s discretion. [50 U.S.C. 3931(d)]

   Additional Resources

   • Mark Sullivan, The Military Divorce Handbook, American Bar Association, 3^rd Ed. (2019).

   • Ohio Domestic Relations Journal, Military Divorce: The Death Trap, Volume 33, Issue 5.

9. Allocating Parental Rights and Responsibilities and Legal Custody
   When allocating parental rights and responsibilities, courts should take a child-centered approach where the best interest of the child is the controlling legal principle. Each court must adopt a standard parenting time guideline. [R.C. 3109.051(F)(2)] See also Planning for Parenting Time: Ohio's Guide for Parents Living Apart.

   Courts should consider the statutory best interest of the child factors set forth in R.C. 3109.04(F)(1) when determining legal custody and allocating parental rights and responsibilities. In addition to the best interest factors, courts should consider:

   • R.C. 3109.04(F)(2): Shared parenting

   • R.C. 3109.051(D): Parenting time, companionship, or visitation rights

   Courts are not to consider:

   • A parent’s financial status [R.C. 3109.04(F)(3)]

   • Written and recorded statements of child [R.C. 3109.04(B)(3) and R.C. 3109.051(C)]

   Special considerations related to deciding the child’s best interest:

   • Infant, child and adolescent stages of development, and attachment

   • Communication and inter-parental conflict

   • Parenting and co-parenting abilities

   • Managing high conflict personalities

   • When children refuse contact: estrangement and parental alienation

   • Substance abuse and dependency and its effects

   • Mental health (including personality disorders) of adults and children

   • Value to child of meaningful father-child, mother-child relationships, shared parenting

   • Psychotherapies and the therapeutic process

   • Family dynamics, blended families, and stepparent conflict

   • Parent reunification (e.g., alienated parent or child)

   • Special needs children

   • Relocation and long-distance parenting

   • Trauma and domestic abuse: rebuttal of presumption

   • Psychological testing in child custody evaluations

   • Safety and supervised visitation/supervised exchanges and neutral sites

   • Social media and modern communication (virtual parenting)

   • Parenting skills and parenting skills training programs

   • Mental health professionals

   • Effective parent education programs [R.C. 3109.053]

10. Communicating with Children - In Camera Interviews
    The court may, in its discretion, or, upon a request by either party, shall interview a child in chambers regarding the child’s wishes and concerns with respect to the allocation of parental rights and responsibilities. Only the judge, the child’s attorney, and any necessary court personnel may be present during the interview. The judge has the discretion to allow an attorney for each parent to be present as well. Additionally, the court may appoint a guardian ad litem or shall do so upon motion by one of the parents. [R.C. 3109.04(B)] Appellate courts differ on whether the interview should be recorded or not and the extent to which the court can disclose information revealed in an in camera interview.

    Considerations:

    • Age/competency/reasoning ability

    • Timing of interview, interview procedure and skills

    • Making a record

    • Findings required when not in the best interest of the child to determine

    • Is it “testimony”?

    • Confidentiality, sealing, and right of access to record (varies among appellate districts)

    • Any special accommodations or cultural/ethnic considerations

    When interviewing children, courts should be mindful of age-appropriate interviewing techniques and where possible conduct interviews in a child-friendly environment. Judicial officers should weigh the potential harm from process (i.e., the emotional burden of public expression; value of being heard vs. putting child in center of battlefield).

    Tools for Interviewing Children

    • Handbook on Questioning Children, Anne Graffam Walker, ABA Center on Children and the Law edition, 3rd Ed. (2013)

    • Forensic Interviewing Protocol, State of Michigan Governor’s Task Force on Children’s Justice and Department Of Human Services, 4^th Edition

    • Forensic Interviews of Children, Nancy Walker, Law & Contemporary Problems [Vol. 65: No. 1 Page 149: Winter 2002]

    • Interviewing Children in Child Custody Cases, Journal of the American Academy of Matrimonial Lawyers [Vol. 18: Page 295: 2002]

11. Parenting Orders
    Sole Allocation of Parental Rights and Responsibilities

    • One parent is designated the residential parent and legal custodian primarily. The court may allocate other rights and responsibilities between the parents for the care of the child, including but not limited to the support and continuing contact with the child for the non-residential parent. [R.C. 3109.04(A)(1)]

    • When:

      • Neither parent requests shared parenting.

      • At least one parent requests shared parenting but no parent files a shared parenting plan.

      • At least one parent requests and files a shared parenting plan, but no shared parenting plan filed is in best interest of the child.

    • Consider factors enumerated in R.C. 3109.04(F)(1).

    • The parent not awarded the allocation of parental rights and responsibilities is the “parent who is not the residential parent,” “parent who is not the residential parent and legal custodian,” or “noncustodial parent.” [R.C. 3109.04(L)(3)]

    • The court has the power to separate and allocate decision-making domains in a sole parenting order (e.g., medical decisions to mother and educational decisions to father). [Sejka v. Sejka, 9th Dist. Medina No. 15CA0091-M, 2017-Ohio-2, Carr v. Carr, 12th Dist. Warren No. CA2015-02-015, 2016-Ohio-6986, Nicola v. Nicola, 11th Dist. Lake, No. 2014-L-057, 2015-Ohio-4017]

    Shared Parenting
    The court may allocate shared parenting upon a request by either or both parents. Both parents are awarded all or some of the aspects of physical and legal care of the child. [R.C. 3109.04(A)(2)]

    • At least one parent must file a pleading or motion requesting shared parenting. The requesting parent must also file a shared parenting plan at least 30 days prior to the hearing unless the filing requirement is waived by the court. [R.C. 3109.04(G)]

    • The court may order the other parent to file a shared parenting plan. [R.C. 3109.04(G)]

    • Each parent is a “residential parent,” “residential parent and legal custodian,” or “custodial parent.” [R.C. 3109.04(L)(6)] Caution: IRS conflict with use of term, “custodial parent.” [R.C. 3109.04(L)(7)]

    • The court may not create its own shared parenting order.

    The Shared Parenting Plan [R.C. 3109.04(G)]
    The Shared Parenting Plan must include:

    • Physical living arrangements

    • Child support obligations

    • Provision for child’s medical and dental care

    • School placement

    • Physical location of child during legal and school holidays, and other days of special importance

    The court must follow provisions of R.C. 3109.04(D) to determine which shared parenting plan is in the best interest of the child.

    • Consider the factors enumerated in R.C. 3109.04(F)(1)-(2) and approve the plan if it is in best interest of the child.

    • Address all factors relevant to the care of the children (school placement, tax issues, receiving public assistance not affecting designation of each).

    • Each plan is highly individualized and based upon what best meets the needs of the child.

    The Parenting Time Order
    The parenting time order must contain age and developmentally appropriate parenting time schedules. [R.C. 3109.051(A); R.C. 3109.051(F)(2)] The order should be detailed and clear, as ambiguity and insufficient detail create an opportunity for control and could lead to ongoing/increased conflict. The order will be read by multiple audiences (e.g., schools, service providers, etc.), including most likely another judicial officer in the future.

    Content of Parenting Time Order

    • Regular/school year schedule

    • Holiday, vacation, school break, days of special importance schedule

    • Scheduling, participation, and payment for school and extracurricular activities, conferences, activities

    • Transportation duties, exchange locations, use of car seats, and other restrictions

    • Communication between parent and child (telephone, email, video-teleconferencing, social networks, restrictions, specific times, unlimited, etc.)

    • Communication between parents regarding children (telephone, email, online program (e.g., Our Family Wizard or Share Kids), through a third party, none, etc.)

    • Necessary restrictions and limits to ensure safety (smoking/drug/alcohol use before or during parenting time, persons permitted to be present, removing children from county/state/country, passport access, etc.)

    • Right to access of non-residential parent to records, daycare, school activities and restrictions to access [R.C. 3109.051(H), R.C. 3319.321(B)(5)(a), R.C. 3125.16, R.C. 3319.321(F), R.C. 3109.051(I)]

    • Notice of intent to relocate [R.C. 3109.051(G)], time of filing (consider timing beyond statutory requirements)

    • Must include child support provisions in divorce, annulment or legal separation order [R.C. 3105.21]; may include child support provisions in parentage time order [R.C. 3111.13, R.C. 3111.29]

    • Consider including mechanism for resolution of future disputes by non-adversarial dispute resolution process

    Appellate Review of Parenting Orders [R.C. 3109.04(H)]

    • Calendar priority

    • “Handle it expeditiously”

    • Standard of review: Abuse of discretion

    • Parenting proceedings not stayed pending appeal

12. Modifying Parenting Orders
    There is a rebuttable presumption in favor of retaining the existing determination. [R.C. 3109.04(E)(1)(a)]

    Modify Existing Sole Residential Parent and Legal Custodian

    • The court must find a change in circumstances of child or residential parent based on new facts arising since date of current parenting order or that were unknown to court at the time. [R.C. 3109.04(E)(1)(a); Davis v. Flickinger, 77 Ohio St.3d 415 (1997)]

    • The court must find that a modification of the parenting orders is in the child’s best interest considering the factors listed in R.C. 3109.04(F)(1) in addition, the court must find one of the following: [R.C. 3109.04(E)(1)(a)]

      • Residential parent agrees to a change in the residential parent.

      • The child has become integrated into the family of the person seeking to become the residential parent.

      • The harm likely to be caused by change of environment is outweighed by advantages of change of environment to the child.

    • In addition, the court may modify a prior parenting order that is not shared parenting to shared parenting if a shared parenting plan is submitted and the court finds that shared parenting is in child’s best interest. [R.C. 3109.04(D); R.C. 3109.04(E)(1)(b); R.C. 3109.04(F)]

    Modify Shared Parenting Plan

    • If the Decree of Shared Parenting states each parent is the residential parent and the parties will have shared parenting, the court must find a change of circumstances of a child or either parent, based on new facts arising since the date of the current parenting order or that were unknown to court at the time to modify the plan. [R.C. 3109.04(E)(1)(a); Davis v. Flickinger, 77 Ohio St.3d 415 (1997), Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, Braatz v. Braatz, 85 Ohio St.3d 40, 1999-Ohio-203, Bruns v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787]

    • If the parenting designation is in the Shared Parenting Plan, then a modification of the terms of the shared parenting plan must be based on a finding of what is in child’s best interest [R.C. 3109.04(B)(1) and factors listed in R.C. 3109.04(F)(1)-(2); Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589 Bruns v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787]

    • The court must find that a modification is in the child’s best interest and one of the following:

      • Both parents agree to a change in the designation of the residential parent. However, in a shared parenting arrangement, each parent is the residential parent. [R.C. 3109.04(E)(1)(a)(i)]

      • The child has become integrated into the family of the person seeking to become the residential parent. [R.C. 3109.04(E)(1)(a)(ii)]

      • The harm likely to be caused by change of environment is outweighed by advantages of change of environment to the child [R.C. 3109.04(E)(1)(a)(iii)]

    • Joint Motion to Modify Shared Parenting Plan [R.C. 3109.04(E)(2)(a)]

      • The court may approve the plan if in the child’s best interest. [R.C. 3019.04(F)]

      • If not in the child’s best interest, the court may reject the plan or make proposed modifications.

      • A modification can be made on the court’s own motion or at the request of one/both parents if a modification is in child’s best interests. [R.C. 3019.04(E)(2)(b)]

13. Termination of Shared Parenting Plan [R.C. 3109.04(E)(2)(c)]

    • The court may terminate a shared parenting plan upon the request of either or both parents, or whenever the court finds that the plan is no longer in the child’s best interest, unless there is a designation of residential parent in the order/decree and not or in addition to the plan, or in addition to the language in the plan. [R.C. 3109.04(E)(2)(c); Bruns v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787]

    • The court may terminate the shared parenting plan if the parents attempt to make modifications and the court rejects the modifications as not being in the child’s best interest. [R.C. 3109.04(E)(2)(a)]

    • If the shared parenting plan is terminated, the court will proceed with issuing a modified parenting order as if no parenting order had ever been issued. [R.C. 3109.04(E)(2)(d)]

    • Parent ordered for active military service [R.C. 3109.04(I)]

      • The military parent must notify other parent within three days of receiving notice.

      • Either parent may request expedited hearing to modify parenting order.

      • The court will hold hearing not later than 30 days from receipt of the application.

      • Do not modify order for parental rights and responsibilities unless there is a change of circumstances and modification is necessary to serve the child’s best interest.

      • Past/present/future active military service will not constitute a change of circumstances.

      • The court may make temporary orders for duration of active military service.

      • The military parent may participate remotely.

      • The military parent will provide notice to other parent and court of the termination of active military service not later than 30 days from date service ends.

14. Proceedings Involving Non-Parents
    Legal Custody to a Non-Parent
    If a non-parent relative files a motion to intervene and a motion for custody, the court must first determine if the motion to intervene is appropriate. If so, legal custody may be awarded to the intervenor by agreement of the parties or by the court if it is in the child’s “best interest” for neither parent to be designated the residential parent and legal custodian of the child.

    The court may certify the matter to juvenile court if the court finds that the parents are unsuitable. The court may certify the record to juvenile court which has exclusive jurisdiction. Consent of the juvenile court is not required. [R.C. 3109.06; R.C. 3109.061; In re Perales, 52 Ohio St.2d 89 (1977); In re Hockstok, 98 Ohio St.3d 238, 2020-Ohio-7208]

    The court shall consider:

    • Abandonment

    • Contractual relinquishment of custody

    • Total inability to provide care or support

    • Award of custody would be detrimental to child

    • Finding of abuse, neglect, or dependency is a de facto finding of unsuitability

    The requirement of "best interest" versus need to find "unsuitability" varies among districts.

    Companionship/Visitation Rights to a Non-Parent If Parents Are/Were Married
    A non-parent may file a motion to intervene and a motion for companionship or visitation. The person seeking companionship or visitation rights must be a grandparent, person related to child by consanguinity/affinity or any other person other than a parent and must have an interest in the welfare of the child. [R.C. 3109.051(B)(1)] If the court determines the motion to intervene is appropriate, the court may grant the companionship or visitation when it is in child’s best interest. [R.C. 3109.051(B)(1)(c), R.C. 3109.051(D); Troxel v. Granville, 530 U.S. 57 (2000)]

    The court has the discretion to conduct an in camera interview regarding the child’s wishes and concerns; it may not consider the child’s written or recorded statement or affidavit. [R.C. 3109.051(C)]

    Companionship/Visitation Rights to Person If Parents Were Never Married
    If the father has a final acknowledgment of paternity, the parents of the father and any relative of the father may file complaint for companionship or visitation. [R.C. 3109.12(A)] The court grants companionship or visitation when it is in child’s best interest. [R.C. 3109.12(B), R.C. 3109.051(D)] The marriage or remarriage of either parent does not affect jurisdiction to award companionship or visitation rights to either parent’s relatives. [R.C. 3109.12(B)]

15. Enforcing Parenting Time and Companionship/Visitation Orders
    The court may make a finding of indirect civil contempt for interference with or failure to comply with parenting time or companionship/visitation orders with possible criminal penalties [R.C. 2705.02(A); R.C. 2705.031(B)(2)]

    The court may impose the following:

    • Sanctions

    • Incarceration or fine

    • Attorney fees and court costs [R.C. 3109.051(K)]

      • Cannot permit escrowing/impounding/withholding child support for violation of parenting time/companionship or visitation order. [R.C. 3109.05(D)]

    • Purge Order

      • Reasonable compensatory time with child

      • Cannot be to comply with the existing order, with nothing more

      • May be creative (e.g., attend parent education, compensatory driving to facilitate contact, pay cost of parenting evaluation or unrecoverable airfare, etc.)

      • Not permitted to purge a past violation

      • Imposition of sentence upon failure to purge: issue warrant to commit, alternatives to imposition, conduct another review hearing if there has been some effort or obstacle

      • If it is impossible to make compensatory time, the court may decline to issue a purge order [In re Howard, 12th Dist. Butler No. CA 2001-11-264, 2002-Ohio-5451]

Parentage

1. Establishment of Parent/Child Relationship
   “Parent/child relationship” is the legal relationship that exists between a child and the child’s natural or adoptive parents and others upon whom rights, duties, privileges, and obligations are imposed. [R.C. 3111.01]

   • Maternity: The mother-child relationship.

   • Paternity: The father-child relationship.

   Maternity is established by:

   • Proof that mother gave birth to the child [R.C. 3111.02(A)]

   • A legal presumption as a result of embryo donation [R.C. 3111.97(A)]

   • Judicial process [R.C. 3111.01 - 3111.18]

   • Adoption [R.C. Chapter 3107]

   Paternity is established by:

   • Legal presumption as the result of marriage, unfinalized acknowledgment, artificial insemination, and embryo donation. [R.C. 3111.03; R.C. 3111.25; R.C. 3111.95; R.C. 3111.97]

   • Finalized acknowledgment [R.C. 3111.25]

   • Administrative establishment [R.C. 3111.38 - 3111.611]

   • Judicial process [R.C. 3111.01 - 3111.18]

   • Adoption [R.C. Chapter 3107]

2. Central Paternity Registry (CPR)

   • Operated by vendor under the Ohio Department of Job and Family Services – Office of Child Support Enforcement (ODJFS-OCSE).

   • Must maintain birth registry that includes the following information from Acknowledgment of Paternity and administrative or judicial order: [R.C. 3111.64]

     • Names of parents of child

     • Name of the child

     • Resident address and social security number of each parent

   • To contact the CPR: call 888-810-6446, you can fax requests to 614-985-0480 to see if an affidavit has been filed. [Central Paternity Registry]

3. Putative Father Registry [R.C. 3107.062]

   • The registry is operated by a vendor under ODJFS. The registry does not establish paternity but serves as a mechanism for potential fathers to receive notice of future legal proceedings.

   • Registration and searches of the registration can be found at: https://pfr-pub.jfs.ohio.gov/; (888) 313-3100; OhioPFR@jfs.ohio.gov.

   Registration Process [R.C. 3107.065]

   • The putative father must complete the prescribed registration form and submit it to the county department of job and family services.

   • The registration form shall include putative father’s name, the name of the mother of the person he claims as his child and the address or telephone number at which he wishes to receive notice of any petition that may be filed to adopt a minor he claims as his child. [R.C. 3107.062, R.C. 3107.11]

   • In order to preserve the requirement of his consent to an adoption, a putative father shall register before or not later than fifteen days after the birth of the child. No fee shall be charged for registration.

   • Upon receipt of a completed registration form, the department shall indicate on the form the date of receipt and file the form in the putative father registry. The department shall maintain registration forms in a manner that enables it to access a registration form using either the name of the putative father or of the mother.

   • ODJFS-OCSE and a CSEA may examine the putative father registry to locate an absent parent for the purpose carrying out its duties under the child and spousal support enforcement programs established under R.C. Chapter 3125. Neither the office nor a CSEA shall use the information it receives from the registry for any purpose other than child and spousal support enforcement. [R.C. 3111.69]

4. Establishment of Paternity by Mutual Acknowledgment [R.C. 3111.20-3111.35]
   Acknowledgment of Paternity is final and enforceable without court ratification when all the following occur: [R.C. 3111.25]

   • Acknowledgment filed with Office of Child Support;

   • Information on the Acknowledgment is entered into the Birth Registry;

   • Acknowledgment is not rescinded; and

   • Acknowledgment is not subject to rescission.

   Note: If an Acknowledgment is rescinded, a rebuttable presumption of paternity is created.

   Effect of Final and Enforceable Acknowledgment [R.C. 3111.26]

   • The child is considered born to acknowledging man “as though in lawful wedlock.” There is no longer a presumption, and it cannot be rebutted.

   • The father assumes parental duty of support.

   • If the mother is unmarried, the father may request reasonable parenting time and the parents of mother and father, and any relative of mother and father may request reasonable companionship or visitation rights.

   Administrative Rescission of Acknowledgment of Paternity [R.C. 3111.27-3111.28]

   • Available to either signing parent.

   • Court action is not required.

   • Requirements:

     • Time limitation: Within 60 days from date of last signature on the Acknowledgment.

     • Rescinding parent must:

       • Request that the appropriate CSEA determine the parent-child relationship [R.C. 3111.38]

       • Give the Office of Child Support written notice that timely request has been made and include in notice the name of the CSEA conducting genetic tests to determine parent-child relationship

     • An administrative order must be issued determining whether there is a parent-child relationship.

   • The request for rescission begins at CSEA and commences administrative paternity determination process. The parties must comply with genetic testing.

   Judicial Rescission of Acknowledgment of Paternity [R.C. 3111.28]
   A judicial rescission is a legal action to rescind a final and enforceable Acknowledgment of Paternity. The final Acknowledgment of Paternity may be “unfinalized’ if successfully rescinded in court.

   • Basis of action: fraud, duress, or material mistake of fact.

   • Standing: The action may be brought by:

     • A man presumed to be the father of the child pursuant to R.C. 3111.03 who did not sign the Acknowledgment

     • Either person who signed the Acknowledgment

     • A guardian or legal custodian of the child

   • Time limitation: Challenges must be brought within one year after the acknowledgment becomes final and enforceable.

   • An action to rescind is treated as an action to determine the existence or nonexistence of a parent and child relationship.

   • Venue is appropriate in juvenile court or the domestic relations division that has jurisdiction under R.C. 2301.03 to hear and determine cases under R.C. Chapter 3111.

5. Establishment by Judicial Process and Order [R.C. 3111.01-3111.18]
   Jurisdiction

   • Subject Matter Jurisdiction (Concurrent): [R.C. 3111.06]

     • The action may be brought in juvenile court or other court with jurisdiction under R.C. 2101.022 or R.C. 2301.03 of the county in which child, child’s mother, or alleged father resides or is found.

     • If the alleged father is deceased, the action may be brought in the county in which proceedings for probate of the alleged father’s estate has been or can be commenced.

     • It may be brought in the county providing support to the child.

     • An action to object to an administrative determination of parentage that has not become final may be brought only in the county of CSEA that made the determination.

     • If an action for divorce, dissolution, or legal separation is filed, that court has original jurisdiction during pendency of action to determine the parent-child relation of a child presumed to be a child of marriage.

   • Personal Jurisdiction: A person who has sexual intercourse in this state submits to jurisdiction of courts with respect to a child who may have been conceived by that act of intercourse.

     • May be acquired by any other method provided by Rules of Civil Procedure

     • May be acquired by service of summons outside state or by certified mail with proof of actual receipt

   • Continuing Jurisdiction: To modify or revoke order, except that a court may specify that judgment or order for the purchase of an annuity may not be modified or revoked. [R.C. 3111.16]

   Priority of Action

   • The court must give priority to actions under R.C. 3111.01-3111.18.

   • The court must issue an order determining the existence or nonexistence of a parent-child relationship no later than 120 days after date on which the action brought.

   • Supreme Court of Ohio Reporting Forms (Juvenile Form D – Column I and Domestic Relations Form B – Column J) specify a 12-month period for disposition of parentage actions.

   When an Action May be Brought

   • Statute of Limitation/Defense: No later than five years after child’s 18th birthday. [R.C. 3111.05]

   • If the action is brought during mother’s pregnancy, stay contested proceedings, except: [R.C. 3111.04]

     • Service of process is not stayed.

     • Depositions to perpetuate testimony are not stayed.

   • An administrative determination of existence or nonexistence of a parent-child relationship must precede court action. [R.C. 3111.381]

     • An administrative determination is not prerequisite:

       • If it is brought by the child’s mother to request allocation of parental rights and responsibilities, payment of reasonable expenses of mother’s pregnancy and confinement, or support of child.

       • If it is brought by a putative father to request allocation of parental rights and responsibilities.

       • If a probate proceeding commenced for deceased alleged father, the probate court has jurisdiction.

       • If divorce, dissolution, legal separation, or action to establish support has been filed, that court has jurisdiction under R.C. 2151.231 and R.C. 2151.232.

   • A Title IV-D application must be delivered to the CSEA if the court requests that CSEA determine existence or nonexistence of parent-child relationship under these exceptions.

   • The clerk of court must forward a copy of the complaint to CSEA in the county where the complaint was filed.

   PRACTICE TIP:

   Parentage determinations may be made in marital termination actions. This claim is most often presented as a separate count in the complaint, counterclaim, or petition.

   Standing to Bring Action [R.C. 3111.04]

   • Child or child’s personal representative

   • Child’s mother or her personal representative

   • Man alleged or alleging himself to be child’s father, or alleged father’s personal representative

   • CSEA of county where child resides if child’s mother, father, or alleged father is recipient of public assistance or Title IV-D services, including UIFSA action

   • Any interested party may bring an action to establish a mother-child relationship

   Necessary Parties [R.C. 3111.07]

   • Natural mother

   • Each man presumed to be father under R.C. 3111.03

   • Each man alleged to be natural father

   • Child, unless good cause shown

     • Counsel shall be appointed if the child’s interests conflict with the mother’s interests

     • A guardian ad litem and legal counsel may be appointed for the child. [Civ.R. 75(B)(2)]

   • Notice of action pursuant to the Rules of Civil Procedure and opportunity to be heard must be given to:

     • Parties not subject to the jurisdiction of the court.

     • CSEA of county where action is brought.

   • Any public agency or department may intervene for the purpose of collecting or recovering the support.

   Proceedings

   • These actions are governed by Rules of Civil Procedure unless a different procedure is specifically provided.

   • A pretrial conference is required if the person against whom the action is brought does not admit existence or nonexistence of father-child relationship in his answer [R.C. 3111.11]

   • Scheduled at a time set by the court.

   • Matters to be addressed at pretrial conference:

     • Notice that each party may file a motion requesting genetic tests

     • Notice of right to retain counsel

     • Time needed to obtain genetic testing or other evidence

     • Required time parameters for disposition of an action

     • Effect of the Servicemembers Civil Relief Act

   • Temporary Support Order [R.C. 3111.111]: The court must issue a temporary support order requiring alleged father to pay temporary support to natural mother, or guardian or legal custodian of child upon its own or parties’ motion.

     • The temporary order will remain in effect until a judgment is issued.

     • The court must order the person receiving support to repay alleged father if alleged father determined not to be natural father of child.

   • Admission [R.C. 3111.08]: The court must enter a judgment if person against whom the action is brought admits in his answer the existence or nonexistence of father-child relationship.

   • Default judgment is permitted: [R.C. 3111.08]

     • On oral or written motion

     • If the person against whom the action is brought fails to plead or otherwise defend against the action

     • Pursuant to the Rules of Civil Procedure

     • After hearing satisfactory evidence of truth of statements in complaint

   PRACTICE TIP:

   Pretrial conferences present the court with an early opportunity to order genetic testing when necessary. Speedy resolution of the parentage issue can often facilitate the parties’ settlement negotiations and/or mediation efforts.

   Evidence of Paternity or Non-Paternity [R.C. 3111.10]

   • Sexual intercourse between mother and the alleged father at any possible time of conception

   • An expert’s opinion concerning statistical probability of alleged father’s paternity, based upon duration of the mother’s pregnancy

   • Genetic test results, weighted in accordance with evidence, if available, of the statistical probability of the alleged father’s paternity

     • Governed by R.C. 3111.09

     • The court may order genetic testing upon its own motion.

     • The court shall order genetic testing upon a party’s motion.

     • If CSEA is not a party, the clerk of the court must schedule a test within 30 days after the court issues its order.

     • If CSEA is a party, CSEA must schedule test in accordance with ODJFS rules.

     • Failure to cooperate with order for genetic testing:

       • If the action is brought by the alleged father and the mother willfully fails to submit to genetic testing or if mother is custodian of child and willfully fails to submit child to genetic testing, on alleged father’s motion, the court must issue an order determining existence of parent-child relationship without genetic testing.

       • If the action is brought by a mother or child’s guardian or custodian and the alleged father willfully fails to submit himself to genetic testing or, if alleged father is custodian of child and willfully fails to submit the child to genetic testing, the court must issue an order determining the existence of a parent-child relationship without genetic testing.

       • Failure is not willful if the party shows good cause for failing to submit to testing.

   Judgment and Its Effects [R.C. 3111.13]
   An order determining the existence or nonexistence of parent-child relationship is determinative for all purposes. The court must send the order to Central Paternity Registry (CPR) in ODJFS-OCSE. [R.C. 3111.66] CPR then sends the order to the Ohio Department of Health after entry in birth registry.

   • The order must include full names, addresses, and social security numbers of mother and father, and full name and address of child unless the court has reason to believe that any person named in the order is a potential victim of domestic violence.

   • The order must include provisions for payment of reasonable expert fees, and other costs, including genetic tests in proportions and at times determined by the court. [R.C. 3111.13, 3111.14]

   PRACTICE TIP:

   Courts should maintain a supply of HEA Form 3029 for parties to complete when settling or deciding parentage cases including orders changing the child’s name and calling for a new birth record to be prepared. These items should be mailed to the Ohio Department of Health, Bureau of Vital Statistics, 4200 Surface Road, Columbus, Ohio 43228.

   Courts may want to create and maintain form cover letters to include when directing an order or entry and completed HEA Form 3029 to the Central Birth Registry ordering preparation of a new birth record.

   Judgment may include a support order if requested by a party, including:

   • Payment of all or part of reasonable expenses for pregnancy confinement

   • Orders pertaining to the duty of support

     • The support order may be for periodic payment.

     • In the best interest of the child, the court may order purchase of annuity in lieu of periodic payments if the purchase agreement provides for remaining principal to be transferred to the child upon attaining age of majority.

     • The court must follow provisions of R.C. Chapters 3119, 3121, 3123, and 3125.

   • Ordering support for time periods prior to adjudication or for pregnancy/confinement expenses (limitations, requirements, defenses):

     • Must consider all relevant factors, including monetary contribution for support either parent made prior to order

     • Must not require payment if:

       • The child is over three years old at the time of filing, and

       • The alleged father had no knowledge and no reason to have knowledge of his alleged paternity

       • The mother may establish by preponderance of the evidence that father had or should have had knowledge of paternity by showing that she performed reasonable and documented effort to contact and notify him of his paternity.

   • A party is entitled to obtain a modification of existing order for arrearages. [R.C. 3111.13(F)(3)(c); but see Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419 wherein R.C. 3111.13(F)(3) was declared unconstitutional as applied].

   • Enforcement of Support Order [R.C. 3111.15]

     • The obligation may be enforced in the same or other proceeding by mother, child, or public authority that furnished or is furnishing support.

     • The court may order payment to be made to the mother, clerk of court, or person or agency designated to administer order.

     • Willful failure to support is civil contempt.

     • Any person found in contempt for failure to comply with support order shall be ordered to pay court costs and reasonable attorney fees of an adverse party. [R.C. 3111.13(F)(1)]

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   A standard that requires the proof offered in a case to be greater in weight than the proof opposing it. The evidentiary standard common in civil lawsuits.

   The father may petition that he be designated the residential parent and legal custodian or for parenting time after an entry of judgment in the separate paternity proceeding. [R.C. 3111.13(C)]

   If the parents are not married to each other, the father may file a complaint for reasonable parenting time, and grandparents or other relatives may file a complaint requesting reasonable companionship or visitation rights under R.C. 3109.12.

   PRACTICE TIP:

   Some courts with domestic relations and parentage jurisdiction permit parties to file petitions for custody or parenting time in the same case as the initial parentage action was filed. Uniform Domestic Relations Form 23/Uniform Juvenile Form 2 provides for a complaint for parentage, to allocate parental rights and responsibilities, and parenting time in one action.

   Pursuant to R.C. 3111.13(C), the court may determine the surname by which the child is to be known after establishment of the existence of the parent and child relationship upon a showing that the name determination is in the child’s best interest. [Bobo v. Jewell, 38 Ohio St.3d 330 (1988); In re Willhite, 85 Ohio St.3d 28 (1999).]

   PRACTICE TIP:

   In Bobo, it directs courts to decide the child’s surname applying a best interest standard. Wilhite authorizes, if not encourages, courts to order hyphenated surnames in appropriate cases.

6. Legal Presumptions of Paternity – “A Legal Fiction” [R.C. 3111.03]
   Paternity presumption is a legally recognized assumption of fact based upon other facts that a man is the father of a child.

   Legal Theory and Rationale Behind the Development of Paternity Presumptions

   • Common law: To promote legitimacy, protect family integrity and stability, preserve social order and property rights.

   • Developed at a time when paternity was historically difficult to prove because medical testing was not available and testimony was regarding paternity was unreliable.

   • Proof prior to genetic testing was based upon:

     • Testimony subject to cross-examination

     • Comparison of physical features and characteristics

     • Defense of impossibility: exploration of “access” or lack of “access” by impotence or absence

     • Expert opinion concerning time of conception

   Three Primary Presumptions [R.C. 3111.03]
   A man is presumed to be the natural father of a child if:

   • Two presumptions related to marriage (roots in common law):

     • The child is born during the man’s marriage to mother, or within 300 days after the marriage is terminated (by death, annulment, divorce, dissolution), or after man and mother separate pursuant to a separation agreement.

     • The man and mother attempted marriage before the child’s birth, the marriage was solemnized in apparent compliance with state law, and the marriage is or could be declared invalid, if either of following applies:

       • Marriage can only be declared invalid by a court and child is born during marriage or within 300 days after termination of marriage (by death, annulment, divorce, dissolution); or

       • Attempted marriage is invalid without a court order and the child is born within 300 days after termination of cohabitation.

   • Presumption related to acknowledging a child: Acknowledgment of Paternity Affidavit has been filed but has not become final pursuant to statute.

   • Primary Presumptions are rebuttable.

     • Burden of proof: by clear and convincing evidence.

     • Must include the results of genetic testing [R.C. 3111.03(B)]

     • When presumptions conflict, the court must determine, based upon logic and policy considerations, which presumption controls. [R.C. 3111.03(B)]

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   A standard that requires proof offered in a case to be highly likely or certain – more than a preponderance of evidence, but less than beyond a reasonable doubt.

   Impact of Presumptions

   • The paternity of most marital children is established by marital presumption.

   • They may contribute to paternity fraud (i.e., impact on public benefits).

   • There could also be social and medical consequences.

   Other Presumptions (Maternal and Paternal)
   Parentage of children born as result of artificial insemination, embryo donation, or surrogacy (response to 20th century technological changes in the ways a child can be conceived; not common law presumption)

   • Artificial Insemination [R.C. 3111.88-3111.96]

     • Statutory provisions are only applicable to non-spousal artificial insemination. [R.C. 3111.89]

     • Must be performed by or supervised by a physician [R.C. 3111.90]

       • Physician must comply with R.C. 3111.93.

       • Physician must maintain confidential record. [R.C. 3111.94]

     • A woman who gives birth as result of artificial insemination is deemed the natural mother. [R.C. 3111.02]

     • If a married woman gives birth as result of non-spousal artificial insemination consented to by husband, the husband is conclusively deemed the natural father. [R.C. 3111.95(A)]

     • A sperm donor is conclusively deemed not to be the natural father. [R.C. 3111.95(B)]

   • Embryo Donation [R.C. 3111.97]

     • A woman who gives birth as result of embryo donation is conclusively deemed the natural mother. [R.C. 3111.97(A)]

     • An embryo donor is not deemed a parent and has no parental responsibilities. [R.C. 3111.97(D)]

     • If a married woman gives birth as result of embryo donation consented to by husband, the husband is conclusively deemed to be the natural father. [R.C. 3111.97(B)]

     • If a married woman gives birth as result of embryo donation not consented to by husband [R.C. 3111.03(A)(1) or (2)], a presumption arises that the husband is the natural father but it may be rebutted [R.C. 3111.97(C)] by clear and convincing evidence that includes the lack of consent to embryo donation.

     • Other evolving science and changing policy/law.

   • Surrogacy

     • Surrogacy, the collaborative process of pregnancy between intended parents and a surrogate carrier, who is impregnated through an embryo transfer, is not specifically part of the Ohio Revised Code. However, legal and properly drafted surrogacy agreements will be enforced in Ohio. Ohio courts are divided on how parentage may be established for children born as a result of surrogacy. Some courts will grant a pre-birth order, while other courts require the filing of a declaratory judgment of parentage immediately after the birth of the child.

     • A pre-birth order may be obtained any time after confirmation of the pregnancy and will allow the hospital to arrange for an original birth certificate which correctly lists the intended parents as legal parents.

     • A declaratory judgment of parentage may be issued immediately after a child is born to avoid confusion over birth records. Hospitals have a 10-day grace period before sending in the paperwork for a new birth certificate which should allow time for the declaratory judgment process to establish the intended parents as legal parents.

     • There are two types of surrogacy:

       • Traditional Surrogacy occurs when the surrogate's eggs are used, making her the biological mother of the child she carries.

       • Gestational Surrogacy occurs when the surrogate has no biological tie to the child she carries (e.g., in vitro fertilization).

     • Parentage may be established in the county where the child, child's mother or the child's alleged father resides.

   PRACTICE TIP:

   A Complaint for Parentage should include affidavits from the Intended Parents, Surrogate Parent(s), a copy of executed Surrogacy Agreement, basis for venue, affidavit from medical specialist who performed the insemination, request to establish parent-child relationship with the Intended Parents, and a request to seal the record. The Decision/Judgment Entry Granting the Complaint will reference all these items to successfully establish parentage and order a birth record for the child.

7. Relief from Paternity Determination [R.C. 3119.961-3119.967]
   Relief from paternity determination applies to a final judgment, court order, administrative determination, or order that determines if the person or male minor is the father of child. [R.C. 3119.961]

   Procedure for Relief

   • The process is independent of Civ.R. 60(B).

   • A motion is filed in the division of the court of common pleas in the county in which an original judgment, court order or child support order was made, or administrative determination or order made.

   • If the determination is based on an Acknowledgment that has become final, it must be filed in juvenile court or other court with jurisdiction of county in which person or child subject of acknowledgment resides.

   • The court may transfer the case to the county of an adverse party if the location of original venue presents hardship.

   The court must grant relief to person or male minor if:

   • The court receives genetic test results from test administered no more than six months before filing that finds a zero percent probability of fatherhood.

   • The person or male minor has not adopted the child.

   • The child was not conceived as a result of artificial insemination in compliance with R.C. 3111.88-3111.96.

   The court must not deny relief if person or male minor did not know he was not the natural father at the time any of the following acts occurred, solely because of any of the following acts:

   • He was required to support child by child support order.

   • He validly signed the birth certificate as informant as provided in R.C. 3705.09 as it existed prior to January 1, 1998.

   • He was named in an Acknowledgment of Paternity of the child that a court entered upon its journal pursuant to former R.C. 2105.18, repealed in Am.Sub.H.B. No. 352, 147 Ohio Laws, Part II, 2606.

   • He was named in an Acknowledgment of Paternity that has become final.

   • He was presumed to be the natural father under R.C. 3111.03 and certain divisions under former R.C. 3111.03.

   • He was determined to be the father in a parentage action under R.C. Chapter 3111.

   • He otherwise admitted or acknowledged himself to be the child’s natural father.

   The court must not grant relief if it determined by preponderance of the evidence that a person knew he was not the natural father before any of the following:

   • He was required to support child by child support order.

   • He validly signed the birth certificate as informant as provided in R.C. 3705.09 as it existed prior to January 1, 1998.

   • He was named in an Acknowledgment of Paternity of the child that a court entered upon its journal pursuant to former R.C. 2105.18, repealed in Am.Sub.H.B. No. 352, 147 Ohio Laws, Part II, 2606.

   • He was named in an Acknowledgment of Paternity that has become final.

   • He was presumed to be the natural father under R.C. 3111.03(A)(3) as it existed prior January 1, 1998, or after that date but prior to March 22, 2001.

   • He is presumed to be the natural father under R.C. 3111.03(A)(1)-(3).

   • He otherwise admitted or acknowledged himself to be the child’s natural father.

   If relief from judgment is granted from an Acknowledgment that has become final, the court must order:

   • The Acknowledgment be rescinded and destroyed; and

   • ODJFS to remove all information related to the Acknowledgment from the birth registry.

   Effects of Granting Relief from Judgment [R.C. 3119.964]

   • The court must determine whether any orders granting companionship or visitation rights should be terminated, modified, or continued.

   • The court may issue an order canceling support arrears.

   • A person or male minor relieved from judgment may bring an action to recover support paid under the terminated child support order.

   • Granting a motion for relief does not preclude any person from filing a subsequent action to establish a parent-child relationship between the same child and person or male minor granted relief. [R.C. 3119.965]

     • Only one such action per person/per two-year period

     • The court may determine the existence of parent-child relationship only if a genetic test is done after relief granted shows a statistical probability of the existence of a parent-child relationship.

Contempt
There are various types of contempt – criminal, civil, direct, and indirect. Criminal and civil contempt are distinguished by the sanction imposed and the purpose for imposing the sanction. Direct and indirect contempt are distinguished by the location of where the contempt occurred. Direct contempt takes place in the courtroom. An indirect contemptuous act takes place outside the presence of the court.

1. Acts of Contempt in Court [R.C. 2705.02]
   A person guilty of any of the following acts may be punished for contempt:

   • Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer;

   • Misbehavior of an officer of the court in the performance of official duties, or in official transactions;

   • A failure to obey a subpoena duly served, or a refusal to be sworn or to answer as a witness, when lawfully required;

   • The rescue, or attempted rescue, of a person or of property in the custody of an officer by virtue of an order or process of court held by the officer;

   • A failure upon the part of a person recognized to appear as a witness in a court to appear in compliance with the terms of the person's recognizance;

   • A failure to comply with an order issued pursuant to R.C. 3109.19 or R.C. 3111.81;

   • A failure to obey a subpoena issued by the department of job and family services or a child support enforcement agency pursuant to R.C. 5101.37; or

   • A willful failure to submit to genetic testing, or a willful failure to submit a child to genetic testing, as required by an order for genetic testing issued under R.C. 3111.41.

   PRACTICE TIPS:

   • Contemnors should be warned that they will be found in contempt if the conduct continues.

   • Judges should be clear with their magistrates about how to proceed with direct contempt before the magistrate.

   • Magistrates should do everything possible to avoid a finding of direct criminal contempt because that in and of itself will impede the hearing.

2. Civil Contempt: Direct [R.C. 2705.01]
   Misbehavior in the presence of the court (or near the court) which obstructs the administration of justice. The court must have personal knowledge of the act. The sentence is remedial or coercive in nature (purge condition is given). The contemnor can purge the contempt by complying with the order of the court. This is a summary proceeding. Example of direct civil contempt: a party refuses to testify or refuses to stop talking.

   Elements of Direct Civil Contempt include all the following:

   • The doing of a forbidden act, or the failure to comply with an order of the court.

   • The act impairs the authority or impedes the functioning of the court.

   • The act must be committed in the immediate view and presence of the court.

   • The contemnor is under a present duty to comply with the court's order, is in present violation of the court's order, and still has the ability to perform the act ordered by the court, or

     • It is still possible to grant the relief originally sought by the court order, or

     • It is still possible to restore order in the courtroom.

   NOTE: If the contempt act occurred in front of a magistrate, the summary proceeding must be heard by a judge and not the magistrate.

3. Civil Contempt: Indirect [R.C. 2705.02]
   The court’s purpose for imposing sanctions is to restore the status quo. The act occurred outside the presence of the court. The court order must specify conduct to be performed on or before a date certain. A written pleading must be filed. Example: a party refuses to produce discovery.

   Elements of Indirect Civil Contempt include all the following:

   • The doing of a forbidden act, or the failure to comply with an order of the court.

   • The moving party must establish that a court order exists, the contemnor had knowledge of the order, and the contemnor violated the order.

   • The act must impair the authority or impede the functioning of the court.

   • The contemnor is under a present duty to comply with the court's order, is in present violation of the court's order; and still has the ability to perform the act ordered by the court; or it is still possible to grant the relief originally sought by the court order.

   Hearing

   • A hearing is required.

   • The alleged contemnor must be personally served with the summons of contempt, motion, show cause order/order to appear, and the hearing notice.

   • The court may issue a warrant to secure the party's appearance or hold the accused in custody. The court cannot proceed with the contempt hearing if the alleged contemnor is not present and may issue a bench warrant if the alleged contemnor does not appear.

   • The burden of proof is on the moving party. The standard is clear and convincing evidence.

   • Intent of the party accused is irrelevant.

   • The court may only consider conduct that occurred prior to/on the date the motion was filed for the purpose of a contempt finding. An alleged contemnor must be afforded due process in a civil contempt proceeding.

     • The alleged contemnor must have notice of the charges. If notice is not provided, the court cannot find the alleged contemnor in contempt. [Fox v. Fox, 2015-Ohio-2728]

   • The sentence must have purge condition that can be met to avoid the penalty. (See below when court may decline to issue purge.)

   NOTE: The imposition of sentence should be approved by a judge and not a magistrate. The magistrate may issue the Decision with a purge order or report to jail that occurs more than 14 days after the Decision is journalized to provide contemnor with meaningful opportunity to file objections.

4. Direct Contempt in the Presence of a Magistrate – Contempt Order [Civ.R. 53(D)(8)]

   • Contempt sanctions under Civ.R. 53(C)(3)(f) may be imposed only by a written order that recites the facts and certified that the magistrate saw or heard the conduct constituting contempt.

   • A contempt order shall be filed and copies provided forthwith by the clerk to the appropriate judge of the court and to the subject of the order.

   • The subject of a contempt order may by motion obtain immediate review by a judge. A judge or the magistrate entering the contempt order may set bail pending judicial review of the order.

   • Civ.R. 53(D)(8)(a) refers to Civ.R. 53(C)(2)(f) but the language in Civ.R. 53(C)(2) does not include any subsections. See instead Civ.R. 53(C)(3)(f) that refers to magistrates imposing appropriate sanctions for civil or criminal contempt committed in the presence of the magistrate.

5. Contempt Actions for Failure to Pay Support or Comply with Parenting Order [R.C. 2705.031]

   • A party who has a legal claim to any support ordered for a child, spouse, or former spouse may initiate a contempt action for failure to pay support.

   • A party who is granted parenting time rights or visitation pursuant to R.C. 3109.051, R.C. 3109.12, or R.C. 3109.11 may initiate a contempt action for failure to comply with, or interference with, the order or decree.

   • In any contempt action initiated for failure to pay support or failure to comply with or interference with parenting time/visitation the court shall issue a summons and an order for the accused to appear.

   • The summons must include all the following:

     • Notice that failure to appear may result in the issuance of an order of arrest, and in cases involving alleged failure to pay support, the issuance of an order for the payment of support by withholding an amount from the personal earnings of the accused or by withholding or deducting an amount from some other asset of the accused;

     • Notice that the accused has a right to counsel, and that if indigent, the accused must apply for a public defender or court appointed counsel within three business days after receipt of the summons;

     • Notice that the court may refuse to grant a continuance at the time of the hearing for the purpose of the accused obtaining counsel, if the accused fails to make a good faith effort to retain counsel or to obtain a public defender;

     • Notice of the potential penalties that could be imposed upon the accused, if the accused is found guilty of contempt for failure to pay support or for a failure to comply with, or an interference with, a parenting time or visitation order or decree;

     • Notice that the court may grant limited driving privileges under R.C. 4510.021pursuant to a request made by the accused, if the driver's license was suspended based on a notice issued pursuant to R.C. 3123.54by the child support enforcement agency and if the request is accompanied by a recent noncertified copy of a driver's abstract from the registrar of motor vehicles.

   • If the summons and order to appear is served as required by the Ohio Rules of Civil Procedure and the accused fails to appear for the court-ordered hearing the court may order the attachment of the accused. [R.C. 2705.031(D)]

   • The imposition of any penalty for contempt does not eliminate any obligation of the accused to pay any past, present, or future support obligation or any obligation of the accused to comply with or refrain from interfering with the parenting time or visitation order or decree. [R.C. 2705.031(E)]

   • The court shall also have jurisdiction to make a finding of contempt for a failure to comply with, or interference with, a parenting time or visitation order or decree and to impose the penalties set forth in R.C. 2705.05in all cases in which the failure or interference is at issue even if the parenting time or visitation order or decree no longer is in effect.

6. Criminal Contempt: Direct [R.C. 2705.01]
   Misbehavior occurs in the presence of the court (or near the court) which obstructs the administration of justice or impedes the hearing. Example: during trial, a party continuously speaks out of turn disrupting the proceeding.

   The alleged behavior must:

   • Require immediate punishment to preserve the court's authority;

   • Take place in the presence of the judge in open court; and

   • Obstruct the administration of justice by delaying, hindering, or influencing a pending case.

   The court must have personal knowledge of the act. It can impose summary punishment. No charges are filed or notice of hearing is required. The Rules of Evidence do not apply. [Evid.R. 101(C)(4)] The sentence serves as punishment to vindicate the court and should be unconditional (no purge) and must be commensurate with the completed act of disobedience committed.

   Elements of Direct Criminal Contempt include all the following:

   • The willful doing of a forbidden act, or the willful refusal to comply with an order of the court;

   • That impairs the authority or impedes the function of the court;

   • Committed in the immediate view and presence of the court;

   • Where the court seeks to punish misconduct that has altered the status quo ante so that it cannot be restored, or the relief sought by the original court order can no longer be obtained; and

   • Order in the courtroom cannot be restored unless criminal contempt sanctions are used.

   PRACTICE TIP:

   Be aware of the case law in your district regarding contempt findings and the ability of a contemnor to purge the contempt.

7. Criminal Contempt: Indirect [R.C. 2705.02]
   The court’s purpose for imposing sanctions for indirect criminal contempt is to punish alleged contemnor for past misconduct and civil contempt remedies are inappropriate. The act must include all the following:

   • Be a willful doing of a forbidden act or the willful refusal to comply with an order of the court;

   • Impair the authority or impede the functioning of the court; and

   • Be committed outside the immediate view and presence of the court.

   Hearing [R.C. 2705.03]

   • Written charges must be filed with the clerk of courts.

   • The accused must be given an opportunity to be heard.

   • The court may issue a warrant to secure the party's appearance or hold the party in custody. However, the court cannot proceed with contempt hearing if the alleged contemnor is not present. The court may issue a bench warrant based upon probable cause findings if the alleged contemnor is served with the motion and does not appear.

   • Standard of Proof: Beyond a reasonable doubt

   • Intent is an essential element.

   Sentence
   The sentence serves as punishment to vindicate the court and should be unconditional (no ability to purge). It must be commensurate with the completed act of disobedience committed.

8. Hearing Required for Contempt Proceedings [R.C. 2705.05]

   • In all contempt proceedings the court must conduct a hearing.

   • Prior to proceeding with an evidentiary hearing, the court must advise the alleged contemnor of the possible penalties and of their right to speak with counsel prior to the evidentiary hearing and that the alleged contemnor may be entitled to have counsel appointed if meet certain financial criteria.

     • Investigate the charge;

     • Hear any answer or testimony that the accused makes or offers; and

     • Determine whether the alleged contemnor's behavior rises to the level of contempt.

   • If contempt is found the following penalties may be imposed:

     • 1st Offense: Fine of not more than $250, a definite term of imprisonment of not more than 30 days in jail, or both

     • 2nd Offense: Fine of not more than $500, a definite term of imprisonment of not more than 60 days in jail, or both

     • 3rd or Subsequent Offense: Fine of not more than $1,000, a definite term of imprisonment of not more than 90 days in jail, or both

   • Additional penalties if contempt is found:

     • All court costs arising out of the contempt proceedings against the person

     • Any reasonable attorney fees of the adverse party as determined by the court that arose in relation to the contempt

     • Interest on any unpaid amount of child support pursuant to R.C. 3123.17

     • Reasonable compensatory parenting time or visitation to the person whose right of parenting time or visitation was affected by the failure or interference if that parenting time or visitation is in the best interest of the child

       • The compensatory time must be included in the order issued by the court; and to the extent possible, the compensatory time shall be governed by the same terms and conditions as the missed time.

   NOTE: Penalties for contempt of a Domestic Violence Civil Protection Order are governed by R.C. 3113.31

9. Judgment Final [R.C. 2705.09]
   The judgment and orders of a court or officer made in cases of contempt may be reviewed on appeal. Appeal proceedings shall not suspend execution of the order or judgment until the person in contempt files a bond in the court rendering the judgment, or in the court or before the officer making the order, payable to the state in an amount fixed by the reviewing court, conditioned that if judgment is rendered against such person he will abide by and perform the order or judgment.

10. Family Law Related Contempt Statutes

    • R.C. 2151.34: Protection order against a minor

    • R.C. 2705.031: Initiating contempt action for failure to pay support or comply with visitation order

    • R.C. 2705.05: Hearings for contempt proceedings

    • R.C. 2903.214: Petition for protection order in menacing by stalking cases

    • R.C. 3105.18: Awarding spousal support - modifications of spousal support

    • R.C. 3105.21: Order for disposition, care and maintenance of children

    • R.C. 3109.05: Child support determinations

    • R.C. 3109.051: Parenting time, companionship or visitation rights

    • R.C. 3111.13: Judgment or order

    • R.C. 3113.04: Sentence suspended upon posting bond

    • R.C. 3113.31: Domestic violence definitions; hearings

    • R.C. 3119.44: Contempt

    • R.C. 3119.45: Previous finding of contempt

    • R.C. 3119.69: Notice that willful failure to comply with court order is contempt of court

    • R.C. 3121.371: Contempt for failure to comply with withholding order