Throw Away the X Label

Labels. Married, divorced, single, separated, or just confused.  The labels can make us happy, jumping for joy, or sad, searching for the right tone of blues to match the crazy foul mood.  More labels.  Traditional family; non-traditional family; broken family; single parent.  The "X" label.  This one doled out to the former spouse and his or her family with hexes on all of their futures.  So, you say, it's officially "ex" and not "X", but the point is, the word is a lot like "crackle" or "boom" as the word "ex" sounds like its  meaning, onomatopoeia for the slashing or crossing out or deleting of the once special someone from your life script.

But there are children of Xs, and surely, no one wants a hex on their futures.  Throw away the X label, in both thoughts and words, and you might understand that your former husband or wife wants to do something in the best interests of Susie and Johnny.  Throw away the X label and you might find yourself talking to your former husband or wife (who have first names) BEFORE they do that something with Susie and Johnny.  Throw away the X label, and that special something with Susie and Johnny could include you if you want it to.  Just a thought. 

Ohio Supreme Court Hears Same Sex Parenting Case ~ In re Lucy Mullen

            I just got done listening to oral arguments before the Ohio Supreme Court regarding co-parenting between same sex couples ~ In re Lucy Mullen ~ heard on February 2, 2011.  The Court will render a decision soon, but thought I'd post the link to the arguments.

            Ohio biological parents can give up their custodial rights to children in one of two ways:  sign a contract doing so; or act in a manner that clearly indicates intent to give up custodial rights. 

            In this case, the mother and her girlfriend appeared to have every intention of co-parenting.  However, when the relationship soured, the mother sought legal counsel and refused to sign a co-parenting agreement with the girlfriend; this was a key fact for the lower court in deciding that mother didn't, as a matter of law, relinquish custody to the girlfriend. 

           

            Counsel for the girlfriend seemed to argue, in essence, that if  through your actions you agree to co-parent, that is the same as giving away or relinquishing custodial rights. And you can't later change your mind in the legal sense by refusing to put that agreement in writing. 

            I've wondered whether the Ohio Supreme Court might use this case as a basis, for public policy reasons, to adopt a bright line standard that says:  if you want co-parenting rights, you must enter into a written agreement.   After hearing the arguments, and questions by the Justices, I'm not convinced that will happen.   

           Though new Justice Yvette Brown alluded to the confusion created by the wide variety of ways people can come to court and now argue there is a  non-written but valid parenting agreement,  Douglas Dougherty, attorney for biological mother, stopped short of requesting a "gold standard" requiring written agreements in these situations.  Instead, he seemed to say that courts are equipped to determine whether there is an implied contract based on facts and circumstances. Chief Justice O'Connor also pointed out that having agreements in writing is not a cure-all (lots of written agreements end up in court) and, further, that courts are in business to sort through facts and access credibility.  

         Looking forward to seeing how the Justices bring clarity to non traditional parenting.  

Same Sex Couples and Parenting Rights - Ohio Supreme Court Watch

          Two females become life partners with one of them becoming a biological mother through artificial insemination and the other taking on the role of the "social" mother, holding themselves out to the community as a family.  What happens when the same sex couple ends up in Splitsville?

            Do non parent partners have visitation rights in Ohio?   Last week, the Ohio Supreme Court dismissed without comment a case filed on behalf of a biological mother, Julie Smith, seeking the court's immediate determination that a juvenile court is without authority to allow a non parent social mother visitation rights. The matter will now return to Franklin County for a trial on the non parent social mother's motion for shared parenting leaving unanswered an important legal question as to whether existing statutes do provide lower courts with authority to order visitation for a non parent partner.

            When will a non parent partner have shared parenting rights?  In May of this year, the Ohio Supreme Court accepted the discretionary appeal of a case out of Hamilton County, In re:  Lucy Kathleen Mullen, which may provide some direction for same sex couples intending to co-parent children.  The case is to be scheduled for oral arguments yet this year.

            Under existing law, a parent can voluntarily give up his or her rights to exclusive custody in favor of shared parenting to a non parent in one of two ways.  First, a parent can enter into a written shared parenting arrangement with a non parent and petition the court for approval.  In the case of In re Bonfield, the Ohio Supreme Court held that a shared parenting agreement between a same sex couple will be judicial accepted provided that due consideration is given to all known factors in determining what is in the best interests of the children and the non parent is found to be a proper person to assume the care, training, and education of the child.   

            Second, a parent can by virtue of his or her own conduct and words give up exclusive parental rights.  While biological parents have constitutional rights paramount to non parents, numerous Ohio cases hold that a non parent may obtain custody of a child if there is a preponderance of evidence indicating that the parent contractually relinquished custody through words, acts or deeds.   However, as noted by the trial court in this matter, these cases tend to be situations where there has been a total relinquishment - not partial relinquishment.  In Lucy, the question for the Ohio Supreme Court seems to be whether there were words, actions and deeds to demonstrate  conclusively that the biological mother contractually relinquished a portion of her exclusive parenting rights.

            Facts in Lucy indicating that biological mother gave up some of her  exclusive parenting rights include:  non parent partner identified the sperm donor, helped pay costs for biological mother's in-vitro fertilization, was there with biological mother and all birth related appointments, was listed as a parent on ceremonial birth certificate, was named as a guardian for the child in biological mother's will and powers of attorney were signed indicating that bio mom considered social mom a co-parent in every way.  However, facts in Lucy indicating that biological mother did not give up exclusive parenting rights include biological mother 's repeated refusal to sign a written shared parenting agreement and her revocation of non parent partner's guardian designation and powers of attorney.

          It will be interesting to see how the Ohio Supreme Court decides Lucy.  Perhaps the Court will simply require that agreements be in writing, not relying on simply the words, actions or deeds of those involved.  After all, in 1991 Ohio eliminated the common law marriage, implied by a couple's holding themselves out as husband and wife.  In any event, the Court's direction will help all parties, biological parents, non parent partners, and  children alike, to eliminate the difficulty noted by the trial court in Lucy:  "It is difficult if even possible to determine how much or what portion of custodial rights a parent would be relinquishing when an implied contract encompasses only a share of custody and is not reduced to writing.”

Banned in Ohio - Smoking around your Child?

Sure cigarette smoking is still legal in the Buckeye State. But that does not mean you can count on lighting up when your child is near.

In Anderson v. Anderson, a southern Ohio appellate court recently upheld as valid a lower court's order requiring parties in a custody dispute to prohibit smoking around a child. That seems like a pretty broad no-smoking order. Not only are the parents banned from smoking around the child, they are also required to keep others from smoking around the child.

More noteworthy is that the Court did not have any evidence to suggest that the child suffered any physical ailments because of exposure to cigarette smoke. Instead, the court took judicial notice of the "avalanche of authoritative scientific studies" which indicates that secondhand smoke causes disease and is a danger to all children.

Ohio, like most other states, considers all "relevant factors" in determining parenting or visitation time and no one factor is the end all - instead, it is more of a balancing test. For example, the courts consider (among many other things) a child's adjustment to home, school and community, the geographic location of the parties, the child's interaction with others, whether a parent has any prior domestic violence issues, or any other factor impacting a child's best interests.

After the Anderson case, Ohio courts may place much more significance on whether a parent smokes near a child -even if they do not invoke all out smoking bans. It will be interesting to see how the law develops in this area and how smoking parents will react.

For more information, contact a family law attorney. Written by Carol L. Gasper, clg@clgasperlaw.com.

Modifying Out-of-State Child Custody Orders in Ohio

We get around. Mobility creates issues for those who are divorced in one state and want to modify that existing custody order in another state.

Ohio, like many states in the country, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at Ohio Revised Code §§ 3127.01-3127.53. Generally speaking, the UCCJEA prioritized the "home state" as the proper place for modifications of existing orders and provided that the first state to issue an initial custody order will have "continuing" and "exclusive" jurisdiction over any request for modification as long as there is one parent who continues to live in that state.

So, for example, if you got divorced in Michigan but moved to Ohio with the children while your ex-spouse continues to live in Michigan, there is a better than good chance that Michigan will be deemed to have continuing and exclusive jurisdiction -the proper place for any modification request. I find that the most difficult part of proceeding under the UCCJEA is helping clients understand that it is not sufficient that Ohio has become the "home state" of the children. That, additionally the issuing out-of-state court must find that it does not have jurisdiction or relinquish jurisdiction because it finds that Ohio is a more convenient forum.

Emergency situations are treated differently. A court may take jurisdiction even though it is not the home state, if the child is present in the state and has been abandoned, or is subjected to or threatened with mistreatment or abuse. An order issued by a court with emergency jurisdiction is temporary.

Recently, in McGhan v. Vettel, the Ohio Supreme Court adopted a two-prong test for determining whether an Ohio court has jurisdiction to modify an out-of-state custody order in non-emergency situations.

Prong One: Ohio must have jurisdiction to make an "initial determination" of custody at the time modification is sought.


Prong One of the test will be met if: (1) Ohio is deemed to be the "home state" of the child in essence, the state where the child has resided for at least six months just prior to filing of a modification proceeding; (2) the child and at least one of the parents, or person acting as a parent has a "substantial connection" with the state of Ohio, more than mere physical presence; (3) declination of jurisdiction, i.e., another state that is the "home state" has declined jurisdiction over the modification; or (4) default jurisdiction, i.e., no other state that could exercise jurisdiction has done so.

Prong Two: Did the out-of-state court find it no longer had jurisdiction? Did the out-of-state court find Ohio was the more convenient forum? Did all of the parties move away from the out-of-state forum?

Prong Two will be met if the other state issuing the order finds that it no longer has jurisdiction OR that Ohio is the more convenient forum to hear the modification request (for example, finding that Ohio has a more significant connection to the child). In addition, this prong will be met if there is a finding that all of the parties no longer live in the issuing state forum.

In my Michigan-Ohio example, if Ohio is the home state of the children (prong one of the test) AND Michigan agrees that Ohio is the more convenient forum or relinquishes jurisdiction (prong two of the test), Ohio will be able to modify the Michigan custody order.

Consult an attorney for more information on how to modify an out-of-state custody order in Ohio.

Written by Carol L. Gasper, clg@clgasperlaw.com

Get Divorced. Get Rich. The Continental Airlines Sham Divorce Case.

In a recent federal court case, a federal judge dismissed Continental Airlines’ lawsuit against 9 of its employees alleging in essence that the employees faked their divorces so that they could loot the pension plan by obtaining early lump sum retirement benefits.

According to the Houston Chronicle, Continental argued in pleadings before the Court that the defendant employees got divorced, collected their pensions and then remarried their spouses in order to collect the money in lump sums while they were still working.

The Continental pension plan, governed by federal law, allows pre-retirement payments to former spouses. Once divorced, the pilots' ex-spouses used this provision to collect lump-sum distributions of the pilots' pension plans, worth up to $900,000 per pilot. In its lawsuit, Continental called the divorces “subterfuges or sham transactions.”

In dismissing the Continental lawsuit against the employees, U.S. District Judge Gary Miller seems to acknowledge the sham. The Associated Press story quotes Judge Miller as saying: "the facts show, and the pilots do not seem to contest, that the pilots and their former spouses did not behave in a manner consistent with the breakup of a marriage." He said many of the pilots continued to cohabitate, remarried soon after obtaining the lump-sum payout and all essentially conducted themselves as if the divorce had never happened.”

Yet, Judge Miller found that Continental’s pension administrator has no right to consider the legitimacy of a divorce in deciding whether to distribute benefits. He said "the administrator may not refuse to qualify a domestic relations order based on criteria not present in the statute." The judge added that "the court finds that the motivation or good faith of the divorce and resulting domestic relations order is not an enumerated requirement."

Apparently Continental is considering an appeal. The case is of interest on a number of levels. Many familiar with this case have no sympathy for Continental. After all, Continent along with other airlines dumped their pension plans onto the Federal Pension Benefit Guaranty Corporation 4-5 years ago; thus, paying out far less than they should. Yet, the case is about more than those who may have been wronged by Continental for dumping its pension plan on the guaranty fund.

Our country has far too few pension plans these days. If employees can loot their pension plans because of a technicality, i.e., that pension plan administrators have no authority to review the legitimacy of someone’s divorce, those few people lucky enough to have a pension, are put in further jeopardy –beyond the jeopardy of bankrupt businesses that pass pension obligations to the guaranty fund.

Surely our legal system has the ability to stop shams.

Written by Carol L. Gasper, Attorney at Law, clg@clgasperlaw.com

Are You Really Married? What If You Were Not?

Oh no! Recently a Western Pennsylvania couple found out that 49 years of marital bliss was a fairy tale. The clergy member who performed the wedding ceremony simply did not file the marriage certificate with the Court. When, 49 years later, the happy couple went to apply for pension benefits they could not produce the marriage certificate.

While the couple sorts this out in Pennsylvania, I began to wonder what would happen in Ohio if a marriage certificate went missing or the validity of it questioned.

For years and years, Ohio recognized common law marriage, where no marriage certificate was required to deem a couple officially and legally married. If you held yourself out as a married couple, lived together and acted like a married couple, you were deemed married. That all changed in 1991 when Ohio's legislature determined that it would no longer recognize common law. Not to worry... If you were married before 1991 and don't have a marriage certificate, an Ohio probate court will be able to determine the validity of your common law marriage, looking to establish that you did, in fact, hold yourself out as a married couple.

After 1991, Ohio requires that your marriage be "solemnized" or officially performed by someone recognized by Ohio law as being authorized to marry people. In Ohio, judges of the county courts, municipal courts and probate courts may perform the marriage ceremony without any special license; however, ministers do need to be licensed. If you get married before a judge or a licensed minister, your marriage is presumed to be valid.

Within 30 days of the marriage ceremony, the minister or judge who solemnized the marriage is required to file the marriage certificate with the probate court of the county in which the ceremony occurred. If the marriage certificate is not timely filed, the minister or judge performing the ceremony is subject to a fine. If the marriage certificate is missing or lost, Ohio courts would seem to allow those who witnessed the ceremony to give an eyewitness account (Yes! I saw Sally and Tom get married and exchange the I dos!).

What if your minister did not obtain the license necessary to perform the ceremony? Looks like Ohio will uphold the marriage unless public policy is violated. In the case of Dodrill v. Dodrill, N.E.2d, 2004 WL 938476 (Ohio App. 4 Dist.), 2004 -Ohio- 2225, the Fourth District Court of Appeals upheld as valid a marriage performed by an unlicensed minister, stating that Ohio public policy favors sustaining marriages that are not "incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited.” (citing Mazzolini v. Mazzolini (1958), 168 Ohio St. 357, 358).

In sum, Ohio favors sustaining marriages. A good thing! For additional information, Carol Gasper can be reached at clg@clgasperlaw.com.