Legal Advice is Essential, if contemplating Adoption, Custody or Guardianship Action
The Legal Caregiver Roles in Ohio: Adoption, Custody and Guardianship. Which Role is Right For Me?
It is fundamental to those contemplating a new role of a caregiver of a child to know the rights and restrictions of each of these proceedings in order to best be informed about the legal possibilities and implications.
It is critical to have a committed person/family step in and assume the role of care in the precarious situations children or others needing care are often left in. Being informed is priceless, but obtaining legal advice is essential. Which option or approach is best for your situation may turn on specific facts and the legal jurisdictional requirements. But, here is an overview of the options.
What are the options?
Adoption terminates the legal relationship once held between the biological parent and the child. Anyone looking to adopt must complete a home study to determine potential suitability which includes completing requirements such as: personal interviews, home visits, and adoption education.
Adoption hearings take place in the Probate Court in the county where the child resides, the person seeking adoption resides, or where the natural parent resides.
The core legal steps for adoption are as follows:
- The name of the adoptee if the petition is granted.
- Information of the adoptee, petitioner, and all those whose consent is required.
- A copy of the adoptee’s birth certificate.
- Copies of required consents and relinquishments.
- Information on all persons living in the adoptive household.
Assuming the adoption petition is approved, a final Order of adoption will be entered. In such case, the individual granted the adoption steps in as the party legally responsible to care for the adopted individual. There is no such thing as a “temporary adoption” in Ohio.
More information on the laws relating to adoption can be found at (http://codes.ohio.gov/ohio-revised-code/chapter-3107).
Two different courts in Ohio have the authority to hear custody cases depending upon the facts. They are Juvenile Court and Domestic Relations Court. The Domestic Relations Court has jurisdiction to hear and determine the custody and care of the child stemming from divorce, dissolution or legal separation (assuming the parties are or were married). The Juvenile Court generally has jurisdiction to determine custody if the parties were not married or if a person other than a parent has requested custody of a ward – typically due to the “unfitness” of one or both parents.
In the case of unmarried parents, the custody of the child is placed by law with the mother. It takes the father to file a paternity action or otherwise petition the Juvenile Court to be granted parenting rights or custody before he has any “legal rights towards that child. The father and other relatives may petition the court for both custody and visitation to the child.
Ohio law is gender neutral in custody determinations – meaning there is no preference towards the mother or father being granted custody. In Divorce Court, “shared parenting” between the mother and father is the preferred parenting arrangement instead of sole custody to 1 parent. However, that is not always a good idea. The guiding principal is what is in the child’s best interest. A court will consider numerous factors when deciding a custody case such as: the mental and physical health of both parents, any history of domestic violence, child abuse or neglect, and parents’ commitment to facilitate and honor parenting time to name a few.
More information can be found at (https://codes.ohio.gov/ohio-revised-code/chapter-3109 and https://codes.ohio.gov/ohio-revised-code/section-2151.23).
In situations where there is a person not able to care for him or herself (and no one has custody) the Court may appoint a guardian for that individual. That person may be a minor, an incompetent or disabled person or one who suffers from dementia/Alzheimer’s disease. A guardian may be appointed over the ward personally, or over the estate/assets of the ward or over both the person andthe estate of the person.
Family members are given preference under Ohio law to serve as a Guardian, but anyone may petition the court to become the appointed guardian. Once appointed, the guardian must answer to the court for the proper care of the ward and entrustment of the affairs of the ward if they are the Guardian for BOTH the person and estate. A guardian must then file a report once every two years, at minimum, to update the court on the ward’s well-being and major changes. In addition, financial accountings must be filed and permission of the Court will be needed to undertake certain financial purchases.
There are many different types of guardianships:
- Limited: a guardian whose power is limited to a particular purpose and/or for a definite time.
- Interim: a guardian appointed after a former guardian either resigns or was temporarily or permanently removed from their appointment.
- Emergency: a guardian appointed without a formal hearing to prevent imminent injury to the ward or to the estate of the ward.
- Conservator: a guardian appointed for a mentally competent but physically incapacitated adult.
More information can be found at (https://codes.ohio.gov/ohio-revised-code/chapter-2111).
Want to know more about the nuances, procedures, and implications of each? Be on the lookout for a subsequent article on each category that will give a more detailed explanation and further dive into the intricacies and distinctions between adoption, legal custody, and guardianship.
Our experienced Dayton custody, adoption and guardianship lawyers at Holzfaster, Cecil, McKnight & Mues are here for you. We can assist you with better understanding these complicated issues! To learn more, please go to our website at www.hcmmlaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to helping you!
I want to thank Madeline Howell for her assistance in drafting this article. Madeline has completed her first year of law school at the University of Dayton School of Law. She will be interning with Holzfaster, Cecil, McKnight & Mues for the summer months. Thanks again Madeline!
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Robert L. Mues
Attorney Robert "Chip" Mues has been focusing his legal practice throughout Southwest Ohio primarily in divorce and family law matters since 1978. Chip is passionate about family law and has proudly published the Ohio Family Law Blog since 2007. In addition, he is the managing partner of Holzfaster, Cecil, McKnight & Mues. To learn more about him or the law firm, visit the firm's website at www.hcmmlaw.com. Appointments are available in person, over the phone or by Zoom. Call us at 937 293-2141.