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Domestic Relations Resource Guide - Section I: Substantive Law

E. Special Issues

  1. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) [R.C. Chapter 3127]

    1. Jurisdiction

Basis for Custody Jurisdiction

  1. Home State [R.C. 3127.15(A)(1)]

  2. Declines Jurisdiction [R.C. 3127.15(A)(2)]

    • No home state; or

    • Home state has declined to exercise jurisdiction on the basis that Ohio is a more appropriate forum; and both

      • Child and at least one parent have connection to Ohio beyond mere physical presence, and

      • Substantial evidence of child's care, protection, training, and personal relationships exists in Ohio.

  3. Convenient Forum [R.C. 3127.15(A)(3)]

    • All courts otherwise having jurisdiction under home state or declination jurisdiction have declined to exercise jurisdiction on the basis that Ohio is the more appropriate forum.

  4. No other court has jurisdiction [R.C. 3127.15(A)(4)]

    • Safety net

  • Temporary Emergency Jurisdiction [R.C. 3127.18]
    This only applies if the child has been abandoned or it is necessary to protect the child because the child, parent, or sibling was threatened with mistreatment or abuse.

    • The duration of emergency jurisdiction depends on whether an enforceable custody determination already exists.

      • If no prior custody determination exists: [R.C. 3127.18(B)]

        • Jurisdiction lasts until an order is issued in court having jurisdiction.

        • If an Ohio order specifically states, the Ohio order becomes the final custody determination if no action is commenced in a state having jurisdiction, and Ohio becomes the home state.

    • If a prior enforceable custody determination exists: [R.C. 3127.18(C)]

      • The Ohio order must set forth an adequate period within which to obtain an order from the foreign court.

      • The Ohio order remains in effect until the foreign order is obtained or the stated period expires.

    • If the Ohio court becomes aware of another court having jurisdiction, the Ohio court must communicate with the other court and attempt to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. [R.C. 3127.18(D)]

    Exclusive, Continuing Jurisdiction [R.C. 3127.16]
    The court which enters a controlling custody determination retains exclusive, continuing jurisdiction until it relinquishes jurisdiction or a court (Ohio or foreign) determines that the child and both parents “do not presently reside” in that state.

    1. Modification/Existence of Foreign Orders
      The Ohio court may not modify a prior foreign custody determination unless Ohio has jurisdiction to make an initial custody determination and one of following applies:

      • The foreign court determines: [R.C. 3127.17(A)]

        • It doesn’t have exclusive, continuing jurisdiction; or

        • Ohio is a more convenient forum under R.C. 3127.21.

      • The Ohio court or foreign court determines that the child and both parents “do not presently reside” in the foreign state. [R.C. 3127.17(B)]

      • Exception: temporary emergency jurisdiction

    2. Enforcement of Foreign Custody Orders [R.C. 3127.37]
      If the Ohio court enforcing a foreign custody order determines there is a proceeding to modify the order sought to be enforced, it shall immediately communicate with the foreign court.

    3. Proceedings Pending in Court of Another State Having Jurisdiction [R.C. 3127.20]
      The Ohio court may not proceed if there is a custody action pending in a foreign state at the time of commencement of Ohio action. The Ohio court must stay the action and communicate with the foreign court.

    4. Inconvenient Forum [R.C. 3127.21]
      Ohio court may decline to exercise jurisdiction “at any time” if it determines it is an inconvenient forum. The issue may be raised by either party, on the court’s own motion, or at the request of the foreign court. [R.C. 3127.21(A)] If the Ohio court finds it is an inconvenient forum, the court shall stay proceedings on basis that custody proceedings are “promptly commenced” in the designated state. [R.C. 3127.21(C)]

      Procedure [R.C. 3127.21(B)]
      The Ohio court shall allow the parties to submit information and consider all relevant factors. There is no requirement that the court hold a hearing. [Martindale v. Martindale, 2016-Ohio-254; Kemp v. Kemp, 5th Dist. Stark No. 2010-CA-00179, 2011-Ohio-177; Esaw v. Esaw, 2003-Ohio-3485]

      Relevant Factors (include but are not limited to):

      • Whether domestic violence has occurred and is likely to continue

      • Length of time the child has resided outside of the state

      • Distance between courts

      • Relative financial circumstances of the parties

      • Any agreement of the parties as to which state should assume jurisdiction

      • Nature and location of evidence required to resolve the pending litigation

      • Ability of each court to decide the issue expeditiously

      • Familiarity of each court with the facts and issues in the pending litigation

    5. Unjustifiable Conduct [R.C. 3127.22]
      Unjustifiable conduct constitutes conduct by a parent or that parent's surrogate that attempts to create jurisdiction in Ohio by removing the child from the child's home state, secreting the child, retaining the child, or restraining or otherwise preventing the child from returning to the child's home state in order to prevent the other parent from commencing a child custody proceeding in the child's home state. [R.C. 3127.22(D)]

      If the Ohio court has jurisdiction because the person seeking to invoke jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise jurisdiction unless one of the following: [R.C. 3127.22(A)]

      • The parents agree Ohio should exercise jurisdiction;

      • The foreign court otherwise having proper jurisdiction determines Ohio is the more convenient forum; or

      • No other court would have jurisdiction.

      If the Ohio court declines jurisdiction on basis of unjustifiable conduct, the court may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct including staying the proceeding until a child custody proceeding is commenced in other state. [R.C. 3127.22(B)]

      If proceedings are stayed or dismissed, the court shall assess against the party having engaged in unjustifiable conduct necessary and reasonable expenses unless the party establishes that the assessment would be clearly inappropriate. [R.C. 3127.22(C)]

      • Expenses” include costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and childcare during the course of the proceedings.

    6. Registration of Foreign Orders

      • May register the foreign order with or without simultaneous request for enforcement.

      • The Ohio court may register foreign custody determination upon receipt of: [R.C. 3127.35(A)]

        • A letter or other document requesting that the child custody determination be registered;

        • Two copies, including one certified copy, of the determination sought to be registered;

        • A statement under penalty of perjury that, to the best of the knowledge and belief of the person seeking registration, the order has not been modified.

      • The name and address of each of the following in connection with the order sought to be registered:

        • The person seeking registration

        • Any parent who is designated the residential parent and legal custodian of the child

        • Any parent who is to have parenting time with respect to the child

        • Any person acting as a parent who has been awarded custody or visitation

      • Advance deposit or fee

      • Upon receipt of above materials, the court shall file custody determination (with one copy of any accompanying documents and information) as a foreign judgment and serve notice of registration request on the named persons. [R.C. 3127.35(B)]

      • The notice shall include that:

        • The registered child custody determination is enforceable as of the date of the registration in the same manner as a child custody determination issued by a court of this state;

        • A hearing to contest the validity of the registered determination must be requested within thirty (30) days after service of notice;

        • The failure to contest the registration shall result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

      • The court shall provide named persons an opportunity to contest registration.

    7. Confirmation of Registered Order

      • The court shall confirm the registration of a foreign order unless party contesting establishes one of the following: [R.C. 3127.35(D)]

        • The issuing court did not have jurisdiction.

        • The order sought to be registered has been vacated, stayed, or modified.

        • The person contesting registration was entitled to but did not receive notice of the child custody proceeding for which registration is sought.

      • If there is no timely contest to registration, the registration is confirmed as a matter of law. [R.C. 3127.35(E)]

      • The confirmation of a registered order precludes further contest of any matter which could have been asserted. [R.C. 3127.35(F)]

      1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille Convention)

      • Countries which are members of the Apostille Convention must accept foreign documents containing an apostille as authentic. (“Apostille” is effectively the international version of a certified copy.)

      • The United States is member to this Convention.

      • In Ohio, the Secretary of State is the authorized entity to issue apostilles.

    8. Enforcement of Foreign Custody Orders [R.C. 3127.36]

      • The court shall recognize and enforce foreign orders if they are entered by a court with proper jurisdiction and have not been modified. [R.C. 3127.33(A)]

      • The court may use any remedy available at law to enforce foreign order, including remedies set out in R.C. 3127.31 to 3127.47.

      • Temporary enforcement when Ohio lacks jurisdiction to modify a foreign order [R.C. 3127.34]

      • Limited to parenting time/visitation orders (including those lacking a specific schedule)

      • The court may enforce Hague Return Orders as if they were a child custody determination. [R.C. 3127.32]

      Procedure [R.C. 3127.38]
      Petition for enforcement shall:

      • Be verified;

      • Include original or certified copies of all orders sought to be enforced;

      • State jurisdictional basis, if any, of the court issuing the foreign order;

      • State whether the order sought to be enforced has been vacated, stayed, or modified (and case information, if applicable);

      • Include any commenced proceeding that could affect the current proceeding (i.e., enforcement, domestic violence, adjudication of child as abused/neglected/ dependent, termination of parental rights, adoption) and case information (if applicable);

      • State the present physical address of the child and the respondent, if known;

      • State whether relief in addition to the immediate physical custody of the child and attorney's fees is sought; and

      • State the date and place of registration and confirmation of foreign order, if any.

      Upon the filing of the petition, court shall order the respondent to appear in person with or without the child at a hearing. The hearing must be held on the next judicial day after service of the order (or if impossible, on the first judicial day possible).

      • The order must include time and place of the hearing and advise the respondent that the court will order that the petitioner may take immediate physical custody per R.C. 3127.40 and that the respondent pay fees, costs, and expenses unless respondent establishes:

        • The foreign order has not been registered and confirmed but the issuing court lacked jurisdiction, the order was vacated, stayed, or modified, or the respondent was not given notice.

        • The foreign order has been registered and confirmed but has been vacated, stayed, or modified.

      Attorney Fees and Expenses [R.C. 3127.42]
      The court shall award reasonable and necessary expenses to the prevailing party in an action to enforce a foreign custody order unless the losing party establishes that the award would be clearly inappropriate.

      • “Expenses” include costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and childcare during the course of the proceedings.

    9. Full Faith and Credit [R.C. 3127.43]
      The Ohio court shall afford full faith and credit to foreign custody orders unless foreign order has been stayed, vacated, or modified.

    10. International Jurisdiction
      The UCCJEA expressly treats foreign countries “as if they are states.” [R.C. 3127.04] The United States is a signatory to 1996 Hague Convention on the Protection of Children but it is not in force.

    11. International Child Abduction
      Child Abduction Risk Factors1

      • “Red flag” indicators of abduction risk: there may be an increased likelihood of an abduction if a parent has:

        • Previously abducted the child;

        • Threatened to abduct the child;

        • No strong ties to the child’s home state;

        • Friends or family living out of state or in another country;

        • A strong support network in another country;

        • No job, is able to work anywhere, or is financially independent — in other words is not tied to the area for financial reasons;

        • Engaged in planning activities such as quitting a job; selling a home; terminating a lease; closing a bank account or liquidating other assets; hiding or destroying documents; applying for a passport, birth certificates, school or medical records; or undergoing plastic surgery;

        • A history of marital instability, lack of cooperation with the other parent, domestic violence or child abuse; or

        • A criminal record.

      • Six personality profiles of abductors may indicate an increased likelihood of an abduction:

        • Profile 1: Parents who have threatened to abduct or have abducted previously

        • Profile 2: Parents who are suspicious or distrustful because of their belief that abuse has occurred and who have social support for their belief

        • Profile 3: Parents who are paranoid delusional

        • Profile 4: Parents who are severely sociopathic

        • Profile 5: Parents who have strong ties to another country and are ending a mixed-culture marriage

        • Profile 6: Parents who feel disenfranchised from the legal system and have family and social support in another community

      Additional Resources

      Treaties and U.S. Legislation

      Hague Convention and ICARA Remedies

      • Both have “return” and “access” provisions.

      • These are most commonly associated with a return remedy. The return remedy is not available under ICARA for access violations.

      • Prima facie case for a mandatory return order:

        • Once a child reaches age 16, the Convention no longer applies.

        • Child is a “habitual resident” in a member nation immediately prior to removal/retention. “Habitual residence” is not defined by the Convention but is a pivotal basis for its operation. It is determined by a totality of the circumstances test.

        • Exceptions/Defenses

          • There is no actual exercise of rights of custody. [Hague Convention Article 13(a)] The parent seeking return was not actually exercising rights. This is a low bar.

          • The left behind parent either consents to the removal or retention after the fact, or otherwise acquiesces (in words or conduct) to the alleged wrongful conduct/the child remaining where they are. [Hague Convention Article 13(a)]

          • If more than one year has elapsed from removal/retention, the return order is still presumed to be issued. The court is permitted to deny return if the child is now “well settled.” [Hague Convention Article 12)]

          • If the return would result in child being exposed to a grave risk of harm: [Hague Convention Article 13(b)]

            • The harm can be physical or psychological

            • Issue of fact

            • Ameliorative measures/undertakings generally, only applies after a finding that a grave risk of harm exists.

            • Trial courts have discretion to decline to order a return outright or to fashion measures to ameliorate the risk of harm upon return.

            • Trial court may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. [Golan v. Saada, 596 U.S. 142 S.Ct. 1880, 213 L.Ed.2d 203 (2022)]

          • The denial of fundamental rights and freedoms is determined under the law of the requested nation. [Hague Convention Article 20)] There is very little case law either in the United States or internationally. It is rare.

      Conducting Hearings for Return

      • Return petitions are to be handled “expeditiously.” The Convention contemplates resolution within six weeks. [Hague Convention Article 11)]

      • There is no need to authenticate materials submitted in connection with the petition. [22 U.S.C. 9005]

      • Certain cases might be amenable to resolution without an evidentiary hearing. There is no inherent right to a hearing. [See March v. Levine, 249 F.3d 462 (6th Cir. 2001)] Summary judgment can be appropriate. Use discretion when considering this method.

      Burdens of Proof

      Miscellaneous

      Additional Resources

  1. UIFSA

    Uniform Interstate Family Support Act (“UIFSA”)
    UIFSA establishes a process for enforcing and modifying a child support order issued by another state or country. [R.C. 3115.101 through R.C. 3115.903] There are several provisions in R.C. Chapter 3115 that apply to the registration and/or enforcement of support orders from foreign countries who are members of the Hague Convention pursuant to the Hague Treaty provisions.

    1. Jurisdiction
      In a proceeding to establish or enforce a child support order or to determine parentage, a court or support enforcement agency may exercise personal jurisdiction over a nonresident individual if any of the following apply: [R.C. 3115.201(A)]

      • The individual is personally served with summons within the State of Ohio;

      • The individual submits to jurisdiction in Ohio by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

      • The individual resided with the child who is the subject of the support proceedings in Ohio;

      • The individual resided in Ohio and provided prenatal expenses/support for the child;

      • The child resides in Ohio as a result of the acts/directives of the individual;

      • The individual engaged in sexual intercourse in Ohio and the child may have been conceived by that act of intercourse;

      • The individual asserted parentage in the putative father registry maintained by the Ohio Department of Job and Family Services;

      • Any other basis consistent with the Ohio or U.S. Constitutions for the exercise of personal jurisdiction.

Personal Jurisdiction

The bases for personal jurisdiction stated above are not sufficient to acquire personal jurisdiction to modify a support order from another state unless the court finds either of the following: [R.C. 3115.201(B); R.C. 3115.611(A)]

That all the following are met:

  • neither the child, the obligee (individual), nor the obligor (individual) resides in the issuing state;

  • the petitioner who is a nonresident of Ohio seeks modification; and

  • the respondent is subject to personal jurisdiction in Ohio.

OR

That Ohio is the residence of the child, or of a party (individual) subject to personal jurisdiction in Ohio, and all of the parties (individuals) have filed consents in the issuing state allowing Ohio to modify the support and assume continuing, exclusive jurisdiction.

Ohio may not modify any part of a support order that may not be modified under the law of the issuing state, including duration of the support order. [R.C. 3115.611(C)-(D)]

If a support order from Ohio is modified by a court or agency in another state that assumed jurisdiction under its UIFSA, then the Ohio court: [R.C. 3115.612]

  • May enforce its order only as to arrears and interest accruing before the modification by the other state;

  • May provide appropriate relief for violations of the order that occurred prior to the effective date of the modification by the other state;

  • Shall recognize the modified order of the other state, upon registration, for the purpose of enforcement.

If all the parties to the support order reside in Ohio and the child does not reside in the state that issued the support order, then Ohio has jurisdiction to enforce and to modify the support order from the issuing state in a proceeding to register that order. [R.C. 3115.613(A)]

  1. Registration of an Order for Enforcement [R.C. 3115.601-608]
    A support order or income-withholding order issued in another state or a foreign support order may be registered in Ohio for enforcement by filing the documents and records listed in R.C. 3115.602(A) to the court where the movant seeks to register the order. A pleading seeking additional relief may be filed at the same time as the request for registration or filed later. If there are two or more orders in effect, the movant must furnish a copy of every support order asserted to be in effect, specify the order alleged to be the controlling order, and specify the amount of the consolidated arrearage. The movant must give notice to each party whose rights may be affected by the determination. [R.C. 3115.602]

    When the support order or income-withholding order is registered, the court must notify the non-moving party. The notice must be accompanied by a copy of the registered order, documents, and other relevant information. The notice must inform the non-moving party of the following: [R.C. 3115.605(B)]

    • A registered support order is enforceable as of the date of registration in the same manner as an order issued by Ohio;

    • That a hearing to contest the validity or enforcement of support order from another state must be requested within 20 days after notice [R.C. 3115.605(B)(2)];

    • That a hearing to contest the validity or enforcement of the registered convention support order [R.C. 3115.707(C)] must be requested within 30 days after notice unless the order is from a foreign country participating in the Hague Convention. If the person contesting the order does not reside in the United States, then a hearing must be requested within 60 days after notice [R.C. 3115.707];

    • Failure to contest the validity or enforcement in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages; and

    • The amount of any alleged arrearages.

  2. Contesting the Support Order

    • If the non-moving party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law. [R.C. 3115.606]

    • A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving at least one of the following defenses: [R.C. 3115.607(A)]

      • The issuing tribunal lacked personal jurisdiction over the contesting party.

      • The order was obtained by fraud.

      • The order has been vacated, suspended, or modified by a later order.

      • The issuing tribunal has stayed the order pending appeal.

      • There is a defense under the law of this state to the remedy sought.

      • Full or partial payment has been made.

      • The statute of limitations under R.C. 3115.604 precludes enforcement of some or all of the alleged arrearages.

      • The alleged controlling order is not the controlling order.

    • If the court finds that a party has established a defense, the court may stay enforcement of a registered support order, or continue the proceeding to obtain additional relevant evidence, and issue other appropriate orders. If the contesting party does not establish a defense, the court shall issue an order confirming the order. [R.C. 3115.607(B)-(C)]

    PRACTICE TIP:
    The order issued that confirms registration of the support order for enforcement should state that the registered child support order is confirmed and is enforceable as of the date of registration in the same manner as an order issued by a court of the State of Ohio.

  3. Modification of a Support Order
    A court in Ohio may modify a child support order from another state after the order is registered in Ohio only if, after notice and hearing, the court finds either of the following: [R.C. 3115.611(A)]

    • All the following are met: (1) neither the child, obligee (individual), nor obligor resides in the issuing state; (2) the moving party who is a nonresident of this state seeks modification; and (3) the responding party is subject to personal jurisdiction in Ohio; OR

    • Ohio is the child’s residence or is the residence of a party (individual) subject to personal jurisdiction in Ohio, and all the parties (individuals) filed consents for Ohio to modify the support order and assume continuing, exclusive jurisdiction.

    Ohio may not modify any part of a child support order that may not be modified under the law of the state that issued the original order, including the duration of the support obligation. When Ohio modifies a support order issued in another state, Ohio has continuing, exclusive jurisdiction. [R.C. 3115.611(C), (E)]

    Note: Courts should be mindful of duration issues such as Castle child issues.

    If all the parties (individuals) reside in Ohio and the child does not reside in the issuing state, Ohio has jurisdiction to enforce and to modify the issuing state’s support order in a proceeding to register that order.

    PRACTICE TIP:
    The order issued that confirms registration of the support order for modification and enforcement should state that the registered child support order is confirmed and is modifiable and enforceable as of the date of registration in the same manner as an order issued by a court of the State of Ohio.

    Within 30 days after a modified child support order is issued, the party obtaining the modification shall file a certified copy of the order with the issuing state that had continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction. [R.C. 3115.614]

  1. Civil Protection Orders

    1. Types of Protection Orders

      See Domestic Violence Section for more information.

      Full Faith and Credit [18 U.S. Code 2265]
      Since 1994, the Violence Against Women Act (VAWA) mandates all states, territories, and tribal courts provide Full Faith and Credit to orders of protection, including injunctions against harassment and stalking, issued by courts of other states, territories, and tribes.

    2. Elements of an Enforcement Order
      A protection order for another jurisdiction that has these elements must be afforded a presumption of enforceability:

      • The respondent has been given notice and an opportunity to be heard, or in the case of an ex parte order, the respondent will be given notice and an opportunity to be heard within a reasonable time, consistent with the requirements of due process.

      • The issuing court had personal and subject matter jurisdiction to issue the order.

      • The order has not expired.

    3. Enforcement and Penalties
      Enforce the terms of the order as written by the issuing jurisdiction, even if the enforcing jurisdiction lacks authority to enter such terms, for example:

      • The category of protected persons would not be eligible for relief in the enforcing jurisdiction (e.g., dating partners, same-sex partners);

      • The order contains relief unavailable in the enforcing jurisdiction;

      • The order has a longer duration than provided for in the enforcing jurisdiction; or

      • The order calls for surrender of weapons and the enforcing jurisdiction has no such provision.

    4. Protection Order Enforcement

      • Full faith and credit required law enforcement to enforce a qualifying domestic civil protection order (DV CPO) issued or approved by any state court regardless of whether the petitioner registered the order.

      • A DV CPO supersedes a domestic violence temporary protection order (DVTPO) issued as a pretrial condition of release, if the DV CPO arises out of the same activity as the DV TPO. [R.C. 2919.26]

      • The court should engage in reasonable efforts to ascertain the existence and terms of other protection or parenting order involving the same parties to avoid conflicting orders. [Sup.R. 10.06]

    5. Mutual Orders
      Mutual orders, which provide relief against the original petitioner, as well as the respondent are fully enforceable against the respondent. Provisions against the petitioner are not entitled to interstate/tribal enforcement issues unless:

      • A cross or counter petition, complaint, or other written pleading was filed by the respondent seeking such a protection order; and

      • The court made specific findings that each party was entitled to such an order.

  1. Overlap Duties with Domestic Relations and Other Courts

    1. Certification of Cases by the Domestic Relations Court to the Juvenile Court
      If a domestic relations court determines neither parent should have custody, it should attempt to certify to juvenile court. [Authority to certify: R.C. 3109.06; R.C. 3109.061; R.C. 3109.04(D)(2)]

    2. Certification of Cases by the Juvenile Court to the Domestic Relations Court

      • A juvenile court may transfer jurisdiction over an action for child support or custody order it issued to domestic relations court as follows: [R.C. 2151.235(A)]

        • When the child’s parents are married and are not parties to proceeding described in R.C. 2151.235(A)(3).

        • When the child’s parents are no longer married to each other and there is an existing custody or support order for child or sibling over which juvenile court does not have jurisdiction.

        • When there is a divorce, dissolution, legal separation, or annulment in which child’s parents who are subject to the juvenile court action or order are parties.

        • When there is a domestic violence civil protection order if child or parents are subject to both a child support order and the civil protection order.

      • A court receiving an action or order transferred shall have exclusive jurisdiction if all of the following are met: [R.C. 2151.235(B)]

        • A domestic relations court, juvenile court, or interested party makes motion to transfer;

        • The court receiving jurisdiction consents to transfer; and

        • The juvenile court certifies all or part of record in action or related order to the court receiving jurisdiction.

      • Applies to all orders in effect, and all actions or proceedings pending or initiated on or after March 22, 2019. [R.C. 2151.235(C)]

      PRACTICE TIP:
      Practices in courts that exercise dual jurisdiction in both domestic relations and juvenile may vary on how the certification process occurs administratively.

    3. Guardianship of a Minor
      The probate court has exclusive jurisdiction to appoint guardians for minors. [R.C. 2101.24; R.C. 2111.50] Once the guardianship is terminated, the probate court no longer has jurisdiction to determine the child’s custody.

    4. Child Support Orders
      Child Support Order Without Regard to Marital Status of Child’s Parents [R.C. 2151.231]

      • A parent, guardian, or custodian with whom the child resides may bring a child support action in juvenile or other court with jurisdiction regardless of parents’ marital status. The action cannot be brought against a presumed parent based on a paternity acknowledgment not yet finalized.

      • The parties can raise the parentage issue unless it has been adjudicated or the acknowledgment is final.

      • The order is effective until a court finds no parentage or the order is terminated under R.C. 3119.88.

      Child Support Order Where Acknowledgment of Parentage Is Not Yet Final [R.C. 2151.232]

      • If the paternity acknowledgment has been filed with the birth registry and is not final, either party who signed the acknowledgment may bring a child support action in juvenile court or another court with jurisdiction.

      • If the parties raise the parentage issue, the court shall notify the CSEA, and the acknowledgment is considered to be rescinded.

      • If the parties do not raise the parentage issue and the child support order is issued before the acknowledgment is filed and became final, the acknowledgment is considered final on the date the child support order is entered.

      • A child support order issued after the acknowledgment was final does not affect the acknowledgment.

      The juvenile court shall not exercise jurisdiction to determine custody or support of a child when: [R.C. 2151.23(A)(2), (A)(11), (B)(4) or R.C. 2151.231]

      • The child’s parents are married.

      • The child’s parents are no longer married to each other and there is an existing custody or child support order for a child or sibling over which the juvenile court does not have jurisdiction.

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

      Note: R.C. 2151.233 does not affect a juvenile court’s authority to issue a custody order under R.C. 2151.23(A)(1) granting custody to a relative or placing a child under kinship care agreement.

      Juvenile Court Order Affecting a Domestic Relations Child Support Order [R.C. 2151.236]
      When a juvenile court adjudicates a child delinquent, unruly, abused, neglected or dependent who is subject to a support order issued by a domestic relations court and grants custody to a person or entity other than as designated in the domestic relations court order, the juvenile court shall notify the domestic relations court and CSEA. The CSEA shall review the child support order pursuant to R.C. 3119.60-3119.76.

    5. Competing Custody Orders
      The juvenile court has exclusive jurisdiction over a juvenile, who is the subject of an existing domestic relations custody order, but becomes the subject of an abuse, neglect, dependency, unruly, or delinquency case if the child is not a “ward” of any other court in the state. However, the jurisdiction may be concurrent.

      PRACTICE TIP:
      If the juvenile court awards custody to a party and “closes” the case, the juvenile court should specify either the conclusion of its jurisdiction or that it retains continuing jurisdiction.

    6. Conflicting Protection Orders
      This may occur where the domestic relations court named a child a “protected person” under R.C. 3113.31, and the child then becomes the subject of an abuse, neglect, or dependency case.

      • R.C. 2151.23(A)(14) grants exclusive jurisdiction of the juvenile court over controlling conduct of parent, guardian, or custodian of alleged delinquent, unruly, or juvenile traffic offender.

      • R.C. 2151.359 and R.C 2152.61 likewise give the juvenile court jurisdiction to control the conduct or relationship of parents, guardians, or custodians harmful or detrimental to the child.

      • See Sup.R. 10.06 for guidance on inter-court communications on determining the existence of conflicting orders and ways to avoid conflicting orders.

    7. Children with Disabilities
      Parents have a common law duty to support beyond the age of majority. [Castle v. Castle, 15 Ohio St.3d 279 (1984); R.C. 3119.86]

    8. Adult Guardianship
      Domestic relations courts may intersect with probate court in adult guardianship cases when parents are no longer married to each other and a parent seeks guardianship of a Castle child. [Castle v. Castle, 15 Ohio St.3d 279 (1984); R.C. 3119.86]

  2. Grandparents Caring for Their Grandchildren With and Without Agreement by the Parents
    Ohio law provides for two legal avenues for grandparents to file documentation with the court that grants the grandparents the legal authority regarding the care, physical custody, and control of their grandchild including the ability to enroll the child in school, to obtain from the school district educational and behavioral information about the child, to consent to all school-related matters, and to consent to medical, psychological, or dental treatment for the child. These documents give a grandparent the legal authority to make decisions and care for the child while the child is in grandparent’s physical possession.

    Limitations of Authority: [R.C. 3109.52; R.C. 3109.69; R.C. 3109.79; R.C. 3109.80]

    • The rights and responsibilities of the parent, guardian, or custodian are not affected.

    • Does not grant legal custody to the grandparent.

    • Does not give the grandparent authority to consent to marriage or adoption.

    • Does not affect a payee change to child support.

    • Does not affect current child support orders unless the court issues a new child support order or CSEA issues a new administrative order.

    • Only one POA or Caretaker Affidavit may be in effect at the same time regarding the same child.

Common Factors to Grandparent POA and Caretaker Authorization Affidavit

  • The child must be residing with a grandparent at the time of filing.

  • The document must be filed in the juvenile court where grandparent resides or a juvenile or domestic relations court exercising prior jurisdiction over the child.

  • The document must be filed with the court no later than five days after its creation or execution and may be sent to the court by certified mail.

  • The document must be filed with a UCCJEA child custody jurisdictional statement pursuant to R.C. 3127.23.

  • If the grandparent has a previous criminal conviction resulting in neglect or abuse of a child or determined to be a perpetrator in a children services case in which a child was found to be abused or neglected, the court may report the information to the local children’s services agency to initiate an investigation.

  • If the court believes the Grandparent POA or Caretaker Affidavit is not in the best interest of the child, the court may report the information to local children’s services agency, which shall initiate an investigation and submit a report to the court not later than 30 days (may be extended to 45 days by children’s services request).

  • No filing fee shall be imposed for filing a POA or Caretaker Affidavit.

    1. Grandparent Power of Attorney [R.C. 3109.51-3109.62]
      A Grandparent Power of Attorney (POA) is appropriate when a parent, legal guardian, or custodian of the child grants a grandparent power of attorney to a grandparent who has physical possession of their child. Both parent, guardian, or custodian and grandparent agree that grandparent should have the authority to make decisions and care for the child and both execute the grandparent power of attorney.

      • The form and content must be identical to the form set forth in R.C. 3109.53.

      • Both parent(s) and grandparent must execute the POA, and it must be notarized. [R.C. 3109.54]

      • This does not grant legal custody of the child to the grandparent; rather it gives the grandparent the legal authority to make decisions and care for the child while in the grandparent’s physical possession.

      Both parents must execute the POA when the following apply: [R.C. 3109.56(A)]

      • The parents are married and living together.

      • The child is subject to a shared parenting plan.

      • The child is subject to a custody order issued under R.C. 3109.04, unless one of the following applies:

        • The parent who is not the residential parent and legal custodian is prohibited from receiving a notice of relocation in accordance with R.C. 3109.051.

        • The parental rights of the parent who is not the residential parent and legal custodian have been terminated by a juvenile court.

        • The parent who is not the residential parent and legal custodian cannot be located with reasonable efforts.

      One parent may execute the POA when the following apply: [R.C. 3109.56(B)]

      • The parent is designated the residential parent and legal custodian by court order under R.C. 3109.04.

      • The parent with whom the child is residing the majority of the school year in cases where no court has issued an order designating a parent as the residential parent and legal custodian of the child.

      Notice to Nonresidential Parent of Filing of a Grandparent POA [R.C. 3109.55]

      • A person who creates a POA shall send notice of the creation to the parent of the child who is not the residential parent and legal custodian unless one of the following applies:

        • The parent is prohibited from receiving a notice relocation in accordance with R.C. 3109.051.

        • The parent’s parental rights have been terminated by order of a juvenile court.

        • The parent cannot be located with reasonable efforts.

        • The power of attorney is created by both parents.

      • Notice shall be sent by certified mail not later than five days after the POA is created and shall state the name and address of the person who is designated as the attorney in fact.

      A parent, guardian, or custodian MAY create a POA under the following circumstances: [R.C. 3109.57]

      • The parent, guardian, or custodian of the child is any of the following:

        • Seriously ill, incarcerated, or about to be incarcerated;

        • Temporarily unable to provide financial support or parental guidance to the child;

        • Temporarily unable to provide adequate care and supervision of the child because of the parent’s, guardian’s, or custodian’s physical or mental condition;

        • Homeless or without a residence because the current residence is destroyed or otherwise uninhabitable;

        • In or about to enter a residential treatment program for substance use disorder.

      • The parent, guardian, or custodian of the child has a well-founded belief that the POA is in the best interest of the child.

      • A parent may execute a POA if the other parent of the child is deceased.

      A Grandparent POA may NOT be created with respect to a child while any of the following proceedings are pending with regard to the child: [R.C. 3109.58]

      • A proceeding for the appointment of a guardian for, or the adoption of, the child.

      • A juvenile proceeding in which one of the following applies:

        • Temporary, permanent, or legal custody of the child or the placement of the child in a planned permanent living arrangement has been requested.

        • The child is the subject of an ex parte emergency custody order issued under R.C. 2151.31(D), and no hearing has been held under R.C. 2151.314(A).

        • The child is the subject of a temporary custody order issued under R.C. 2151.33.

      • A proceeding for divorce, dissolution, legal separation, annulment, or allocation of parental rights and responsibilities regarding the child.

      Terminating a Grandparent POA [R.C. 3109.59]

      • A Grandparent POA terminates on the occurrence of whichever of the following events occurs first:

        • The POA is revoked in writing by the person who created it, and the person gives written notice of the revocation to the grandparent designated and the juvenile court where the POA was filed.

        • The child ceases to reside with the grandparent designated.

        • The POA is terminated by court order.

        • The death of the child.

        • The death of the grandparent designated.

      • Not later than five days after a POA is revoked, a copy of the revocation must be filed with the court where the POA is filed.

      Notice of Termination/Revocation of POA [R.C. 3109.60]

      • When a POA has been revoked or terminated under R.C. 3109.59 (except when the designated grandparent dies), the grandparent designated as the attorney in fact shall notify, in writing, all of the following:

        • The school district in which the child attends school;

        • The child’s health care providers;

        • The child’s health insurance coverage provider;

        • The court in which the POA was filed;

        • The parent who is not the residential parent and legal custodian and who is required to be given notice under R.C. 3109.55; and

        • Any other person or entity that has an ongoing relationship with the child or grandparent such that the person or entity would reasonably rely on the POA.

      • The grandparent shall give notice not later than one week after the date the POA terminates.

    2. Caretaker Authorization Affidavit [R.C. 3109.65-3109.73]
      A Caretaker Authorization Affidavit is appropriate when a grandparent has physical possession of their grandchild, wishes to obtain the rights over their grandchild provided in a Grandparent Power of Attorney, but cannot obtain the consent of the child’s parents, legal guardian, or custodian after making reasonable attempts to locate and contact them. It should be noted that only grandparents execute the Caretaker Authorization Affidavit because the child’s parents, guardian, or custodian cannot be located. The affidavit does not grant legal custody of the child to the grandparent; rather it gives the grandparent the legal authority to make decisions and care for the child while in the grandparent’s physical custody.

      Execution of Caretaker Affidavit

      • The form of the affidavit shall be identical in form/content as set forth R.C. 3109.66.

      • A grandparent may execute Caretaker Authorization Affidavit without parental consent upon attesting to either of the following: [R.C. 3109.65]

        • There have been reasonable but unsuccessful attempts to locate and contact both parents, the child’s guardian, or custodian; or

        • A grandparent is not required to locate a parent if the following apply:

          • Does not have to attempt to locate the child’s father if paternity has not been established.

          • If the child is the subject of a custody order, a parent:

            • Who is prohibited from receiving relocation notice in accordance with R.C. 3109.051.

            • Whose parental rights have been terminated by a juvenile court.

      • A Caretaker Authorization Affidavit is executed when the form is completed, signed, and notarized. [R.C. 3109.67]

      Termination of Caretaker Affidavit
      A Caretaker Authorization Affidavit terminates on the occurrence of whichever of the following comes first: [R.C. 3109.70]

      • Child ceases to live with the grandparent.

      • Parent, guardian, or custodian of the child negates, reverses, or disapproves of the grandparent action/decision, and the grandparent voluntarily returns the child to the parent, or fails to file a complaint to seek custody within 14 days after the delivery of written notice of negation, reversal, or disapproval.

      • The affidavit is terminated by court order.

      • The child dies.

      • The grandparent dies.

      Notice of Termination of Caretaker Affidavit [R.C. 3109.71]

      • A grandparent shall notify, in writing, the following entities upon termination of the Caretaker Authorization Affidavit, other than death of the grandparent:

        • The school district;

        • Health care providers;

        • Health insurance coverage providers;

        • The court where the Caretaker Authorization Affidavit is filed; and

        • Any other person/entity that has an ongoing relationship with the child or grandparent such that the person or entity would reasonably rely on the affidavit.

      • The grandparent shall give notice not later than one week after the affidavit terminates.

      Negation, Reversal, or Disapproval of Action [R.C. 3109.72]

      • The parent, guardian, or custodian may negate, reverse, or disapprove any action or decision made pursuant to the Caretaker Affidavit unless negation, reversal, or disapproval would jeopardize the life, health, or safety of the child.

      • The parent, guardian, or custodian must deliver written notice to the caretaker and the person responding to the caretaker’s action or decision in reliance on the Caretaker Authorization Affidavit.

      • The act to negate, reverse, or disapprove of the action terminates the Caretaker Authorization Affidavit as of the date the caretaker returns the child or upon the expiration of 14 days from the delivery of written notice if the caretaker has not filed a complaint in the interim pursuant to R.C. 3109.76.

    3. Grandparent Rights After Revocation of a Grandparent POA or Caretaker Authorization Affidavit [R.C. 3109.76]

      • Within 14 days after written notice of revocation of a Grandparent POA or Caretaker Authorization Affidavit or within 14 days after removal of the child from grandparent’s home, grandparent may file a complaint for custody under R.C. 2151.23(A)(3) or R.C. 2151.27 in the court where the POA or Caretaker Authorization Affidavit is filed if grandparent believes revocation or removal is not in the best interest of the child.

      • Pending hearing or decision on the complaint, the court may make temporary orders it considers necessary to protect the best interests of the child.

      • If parent, guardian, or custodian revokes a POA or Caretaker Authorization Affidavit, the grandparent may retain physical custody of the child until the 14-day period for filing a complaint under this section has expired or, if the grandparent files a complaint, until the court orders otherwise.

    4. Proceedings that Bar the Execution of a Grandparent POA/Caretaker Authorization Affidavit
      A Grandparent POA or Caretaker Authorization Affidavit may not be created with respect to a child while any of the following proceedings are pending with regard to the child: [R.C. 3109.58; R.C. 3109.68]

      • A proceeding for the appointment of a guardian for or the adoption of the child.

      • A juvenile proceeding in which one of the following applies:

        • Temporary, permanent, or legal custody of the child or the placement of the child in a planned permanent living arrangement has been requested.

        • The child is the subject of an ex parte emergency custody order issued under R.C. 2151.31(D) and no hearing has been held under R.C. 2151.314(A).

        • The child is the subject of a temporary custody order issued under R.C. 2151.33.

      • A proceeding for divorce, dissolution, legal separation, annulment, or allocation of parental rights and responsibilities regarding the child.

    5. Prohibited use of a Grandparent POA or Caretaker Authorization Affidavit [R.C. 3109.78]
      No person shall create a POA or Caretaker Authorization Affidavit for the purpose of enrolling the child in a school district so that the child may participate in the academic or interscholastic athletic programs provided by the school or district. Such a violation is falsification, a misdemeanor of the first degree. A POA or Caretaker Authorization Affidavit created in violation of this section is void ab initio. A person in charge of school admissions may inquire of the court to verify the filing of such document. [R.C. 3109.75]

    6. Immunity [R.C. 3109.61; R.C. 3109.73]

      • A person who, in good faith, relies on or takes action in reliance on a Grandparent POA or Caretaker Authorization Affidavit is immune from any criminal or civil liability for injury, death, or loss to persons or property that might otherwise be incurred or imposed solely as a result of the reliance or action. The person is not subject to any disciplinary action from an entity that licenses or certifies the person.

      • Any medical, psychological, or dental treatment provided to a child in reliance on a POA or Caretaker Authorization Affidavit shall be considered to have been provided in good faith if the person providing the treatment had no actual knowledge of opposition by the parent, guardian, or custodian.

      • Immunity does not extend to persons whose actions are wanton, reckless, or inconsistent with the ordinary standard of care.

    7. Military Power of Attorney [R.C. 3109.62]
      A Military Power of Attorney executed pursuant to Sec. 574(a) of the National Defense Authorization Act for Fiscal Year 1994, [10 U.S.C. 1044b] grants a person the same authority concerning care, physical custody and control of a child including school and health care decisions, shall be considered a POA created pursuant to R.C. 3109.51-3109.61 as long as the Military POA remains in effect.

      PRACTICE TIP:
      Courts should develop a process with the clerk of courts for reviewing and/or approving a Grandparent POA or Caretaker Authorization Affidavit before they are time stamped and returned to the grandparent submitting the document.

  1. Judicial Interviews of a Child
    It is within the discretion of the court to interview a child as to their “wishes and concerns with respect to the allocation of parental rights and responsibilities for the care of the child and for the purposes of resolving any issues related to the making of that allocation.” However, if either parent requests a judicial interview of the child, the court must do so. [R.C. 3109.04(B)(2); see also Scassa v. Scassa, Third Dist., 1998 WL 404209.]

    • No written or recorded statement or affidavit of the child’s wishes or concerns is permitted. [R.C. 3109.04(B)(3)]

    • Judicial interviews in third-party companionship or visitation cases, see R.C. 3109.051(C)

    • Judicial interviews in permanent custody cases, see R.C. 2151.414(D)(2)

    1. Requirements for an Interview

      • The court may first appoint a guardian ad litem (GAL) upon the motion of either parent. [Badgett v. Badgett (1997), 120 Ohio App. 3d 448 (7th Dist. 1997).]

      • The court must determine the child’s “reasoning ability to express the child’s wishes and concerns with respect to the allocation of parental rights and responsibilities for the care of the child.” [See, for example, In re Longwell, Ninth Dist., 995 WL 520558, citing State v. Frazier (1991), 61 Ohio St.3d 247 (1991).]

      • The court must determine that the interview is in the best interest of the child and then proceed to make a determination.

        • Even if the child has sufficient “reasoning ability,” the court may find the interview is not in the child’s best interest. [R.C. 3109.04(B)(2)]

      • The interview is conducted in chambers with the child, the child’s attorney, the judge, and necessary court personnel. Attorneys for the parents may be permitted at judge’s discretion. [R.C. 3109.04(B)]

      • Some appellate districts do not require courts to interview children in cases involving the reallocation of parental rights and responsibilities when the evidence fails to establish that a “change in circumstances” has occurred since the most recent parenting decree. [Example: Rice v. Rice, 5th Dist. Delaware No. 10CA-F1 10091, 2011-Ohio-3099]

      • Some appellate districts permit courts to seal the record of a child’s interview. [Example, Beil v. Bridges, Fifth Dist. Licking No. 99CA00135, 2000 WL 977221 (July 13, 2000); contra, Inscoe v. Inscoe, 121 Ohio App. 3d 396 (4th Dist. 1997).]

    2. Purpose of the Interview
      The purpose of the interview is to determine a child’s wishes and concerns relative to the allocation of parental rights and responsibilities. This is not a factual substitute for factual findings relative to best interest. Within this scope, the judicial officer could:

      • Determine a child’s perception of both parents, other caretakers, and siblings.

      • Ascertain a child’s likes and dislikes concerning the home settings.

      • Discern what a child does with each parent or other caretaker.

      • Discover which parent or other caretaker assists the child with school and activities.

      • See and hear the reactions and answers to questions.

      • Allow the child to feel they have input in the decision.

    3. Considerations for Conducting the Interview

      • Timing is important.

        • Interviews with older children soon after the case begins may resolve disputes quickly.

        • Interviews just prior to a hearing allow a judicial officer to hear recent impressions; however, if the matter ends up settled without a hearing, the child has been interviewed unnecessarily.

        • Interviews after the hearing may allow for checking something discerned during the trial or explaining the decision.

        • If the child is in school, schedule the interview for after school hours.

      • Do not interview the child at the same time as the parents’ or caretakers’ hearing.

      • If you have previously interviewed a child, review the notes prior to a second interview to become aware of any changes in the child’s situation, wishes or concerns.

      • It is important the child is as comfortable as possible with the interview process.

        • Younger children: Consider developing a special area or playroom.

        • Children 11 or 12 years old and up may be more comfortable sitting in an office setting than younger children.

        • Some judicial officers prefer the courtroom and wear their robes; others prefer sitting at a conference table in street clothes to make the child more comfortable.

    4. Develop a Script and Checklist
      Judicial officers should have a well-rehearsed introduction that ensures the child understands the role of the judicial officer, why the interview is occurring, and the extent to which what the child says will be shared. A script or checklist helps avoid missing an important topic and allows the judicial officer ease in interpreting any notes taken during the interview.

      PRACTICE TIP:
      The judicial officer should introduce themselves, assure the child they are not being asked to choose between adults, and explain that the interview is being recorded. Utilize open-ended questions to explore the child’s relationship with adults and other children in each home.

    5. In Camera Interviews and Parenting Time/Visitation Contempt Proceedings
      Several appellate districts have held that trial courts may consider children’s statements made during in camera interviews when resolving parenting time/visitation contempt issues. See Richardson v. Richardson, 5th Dist. Fairfield No. 99CA28, 2000 WL 93679 (Jan. 8, 2000); Sagan v. Tobin, 8th Dist. Cuyahoga No. 86792, 2006-Ohio-2602; In re M.C., 2nd Dist. Champaign No. 2020-CA-24, 2021-Ohio-1668.]

[1] Developed from materials provided by the National Centers of Missing and Exploited Children

Domestic Relations Resource Guide

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