My Ex Won’t Let Me Have My Kids Because of the Coronavirus. What Can I do?

Is Parental Time Affected By The Coronavirus Essential Travel Order In Ohio?

I have been practicing family law and divorce in Ohio for over 40 years. Coronavirus is a novel situation, but I will do my best to share some insights into this topic. The COVID-19 situation is a very fluid situation. In addition, each case and the analysis would be dependent on the facts of the specific case as well as the Court and Judge.

Pursuant to both of the Ohio’s Stay at Home Orders, travel has been reduced to only essential travel. Under these Orders, essential travel  is defined based on specified travel purpose, including “travel required by law enforcement or court order, including to transport children pursuant to a custody agreement.” Individuals falling under any of the essential travel purposes must still “comply with all Social Distancing Requirements.” (See, Section 12 (e) of the Ohio Order of April 2, 2020). So, to be clear, Court Ordered parenting time is NOT altered by the shelter-in-place Orders.

Although many Courts are presently working with limited staff, that is not the case in the Montgomery County, Ohio Domestic Relations Court. Many motions have been filed dealing with coronavirus  parenting issues over the past few weeks. These motions are keeping the 2 Judges and 7 Magistrates at the Montgomery County Domestic Relations Court very busy.  Judge Tim Wood recently was interviewed by WHIO. His suggestion is to “Do what’s best for the children, figure out how real the threat is. It’s sad to say some people will use this as an excuse to get even with someone, please don’t do that, your children already have enough stress as it is at this time, don’t do that, yeah just use practical common sense.”

Motion To Modify Parenting Time During The Coronavirus Pandemic

If the parties can’t work the situation out individually or through lawyers then a motion to modify parenting time , or a contempt motion for violating the Court Order regarding parenting time will likely need to be filed. In that case, the Court will look at t whether there has been a significant “change in circumstances” since the last Court Order and the Judge will also consider the “best interests” of the child.

(With the Coronavirus pandemic, proving the “change of circumstances” component may not be too difficult.) As I said above, these rulings will be VERY fact dependent. There is no clear rule that can be stated. Judge Wood said, “If people end up filing for an adjustment to a court-ordered visitation schedule, the court will make the decision with the best interests of the children in mind so they’d rather the parents do it first”.

So how are “Best Interests” Determined?

Ohio uses a list of factors for the court to consider in determining what is in the best interest of the child. Under O.R.C. § 3109.04(F)(1), the list of factors the court will consider when determining what is in the best interest of the child are, but not limited to, as follows:

1. The wishes of the child’s parents regarding the child’s care;
2. If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;
3. The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;
4. The child’s adjustment to the child’s home, school, and community;
5. The mental and physical health of all persons involved in the situation;

And 5 Others…

In addition, under O.R.C. § 2151.03 a “neglected child” is one who “(2) lacks adequate parental care because of the faults or habits of the child’s parents, guardian, or custodian” or “(3) whose parents, guardian, or custodian neglects the child or refuses to provide proper or necessary subsistence, education, medical or surgical care or treatment, or other care necessary for the child’s health, morals, or well-being.”

For a modification of child custody, the change in circumstances “must be substantial, not slight or inconsequential.” Duer v. Moonshower, 2004-Ohio-4025, ¶ 12 (Ct. App.). To determine if a change in circumstances has occurred, the trial court must “examine whether the change is of sufficient import to warrant modification of a prior custody decree.” Id. Moreover, the change “must have a material effect on the child.” Carr v. Kaiser, 2012-Ohio-2688, ¶ 38 (Ct. App.).

What is the “Burden of Proof”?

Whoever files the motion carries the burden of proof. The Court will be looking for solid evidence of harm to the child to modify the Ordered parenting schedule. Conjecture or possible harm will NOT be enough. Solely the fear of something is not enough to warrant a parent keeping the children from the other parent. The likely focus will be what is actually going on in the other parents’ home. The petitioner would have to prove a change in circumstances and the best interest of the child to modify the parenting Order.

Should I File a Motion with the Court?

Obviously the first step should be to try to resolve the dispute without Court intervention. Read the blog article, Parenting Issues and Tips in the Age of Coronavirus (COVID-19) , posted on the Ohio Family Law Blog on March, 21, 2020 by clicking here. If that approach is unsuccessful, your lawyer may be able to intervene to mediate a resolution. Be aware that it will likely take weeks to get a hearing scheduled in Court.

Talk with an experienced divorce and family law  attorney about the specific facts in your case (and one who practices in your jurisdiction) to determine if filing a Contempt Motion or Request to Modify the Parenting Order is prudent. In addition, consider filing a Motion to mediate the dispute as an alternative as well.

If our experienced divorce and family law lawyers at Holzfaster, Cecil, McKnight & Mues can assist you in the Dayton, Ohio region with a Coronavirus parenting problem, please call us at 937 293-2141 to schedule an appointment. We wish each of you strength and good health during these very difficult times!

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