Q: I am an unwed mother and my parents think they should have custody of my child. What are my custody rights?
A: Ohio law (Ohio Revised Code, Section 3109.042) says that you have full custody of your child until and unless a court decides to give your legal and custodial rights to someone else. In parent versus nonparent custody battles, the court must first determine that you are an unsuitable parent before custody can be taken from you and given to a nonparent.
Q: My child is living with my parents while I am getting my life in order. Do I still have parenting rights to my child?
A: Yes. You can grant different types of custody to your parents: legal custody (rights to the care and control of your child) or temporary custody (the temporary right to have physical care and control of the child). You can also grant shared parenting rights (in which case, you both share parenting rights) or visitation rights to your parents.
In Ohio, giving a grandparent temporary custody does not mean that you have given up your full parental rights, even if you file the agreement in court. However, if your parents file for custody of your child and you did not visit or maintain contact with your child for 90 or more days, then the court may determine that you have abandoned your child and could decide that you are an unsuitable parent. If that happens, the court would likely determine that it is in your child’s best interest for your parents to have full legal custody. Should this happen, you could file for custody again once you show that there has been a change of circumstances and that it is in your child’s best interest for you to regain custody.
Q: I financially support my grandchild. Can I get custody?
A: For you to get custody, a court must first find that the parent is unsuitable. Unsuitability is determined on a case-by-case basis. The fact that you are better off financially or live in a better school district than the parent is not enough to show that the parent is unsuitable. However, if the court finds that the parent is unsuitable, then the court will likely determine that it is in the child’s best interest for you to have custody.
Q: Why is it necessary to show that a parent is unsuitable?
A: Parents have special protections under the Due Process Clause of the Fourteenth Amendment of the Constitution to raise their own children. The U. S. Supreme Court has held that it is a fundamental rule that the custody, care and nurture of the child lie first with the parents. For this reason, a court must first determine that a parent is unsuitable before granting custody to a grandparent or nonparent.
Q: What does the court consider when deciding whether or not a parent is unsuitable?
A: A preponderance (greater weight) of the evidence must show that the parent has abandoned the child or signed a contract giving up legal custody (not merely temporary custody) of the child; that the parent has become totally incapable of caring for the child; or that it would be detrimental to the child for the parent to have custody.
Q: I don’t agree with the way my daughter is raising her child. Is that enough to show unsuitability?
A: No. Courts have explicitly held that mere character or moral weakness of the parent is not enough to show unsuitability. There must also be evidence of some harm to or negative effect on the child.
Q: I am the father. Grandparents are taking care of my child now because a state agency determined that my child was neglected, abused, or dependent when in her mother’s care. Does that make me unsuitable, too?
A: Yes. A determination that a child is abused, neglected, or dependent (the child lacked adequate parental care) means that both parents are considered unsuitable even if you, the father, did not live with the mother and child. If grandparents file for custody of your child, the court may determine that it is in the child’s best interest to give them custody due to your automatic finding of unsuitability. However, some courts may still grant you custody if they find you weren’t involved in the neglect or abuse. If grandparents are awarded custody, you can file for custody later if you can show that there has been a change of circumstances since the custody determination was made and that it would be in your child’s best interest for you to have custody.