HB508 Problems with Line Numbers
Cause and effect, and additional comments
will be included.
Chair Hillyer, Vice-Chair Grendell, Ranking Member Galonski, and members, Richard D. Brown, Jeffrey A. Crossman, Al Cutrona, Darrell Kick, Brian E. Lampton, David Leland, Derek Merrin, Bill Seitz, Michael J. Skindell, Brian Stewart, D. J. Swearingen, and Andrea White, I want to thank all of you for allowing me to submit testimony on HB508 and detail the numerous problems that are within this bill.
While Ohio Family Rights has been a strong proponent of bringing about a comprehensive change to Ohio’s “Shared Parenting” laws and the approaches the Courts and Ohio take when a bill is wrong for the State of Ohio we do feel the need to speak up and point out those problems in the bill as Introduced and additional problems within the Substitute bill. We take into consideration not only the actual legislation but the cost to the county and state courts, governments, and the families involved. We consider whether the legislation will increase or decrease the time that families are in litigation and the costs of that litigation. This HB508 will increase litigation and it will increase the costs to families and the courts thereby increasing taxes to families that are not even involved.
I have personally been involved in the writing of this type of legislation back to the 125th General Assembly’s HB232 and I worked with Representative Skindell on SB144 in the 129th General Assembly as well as Ron Young on the House version HB253, in the same General Assembly.
I made contact with Representative Creech in January of 2021 after reading that he was interested in making changes to the way Ohio approached custody in divorces. After a discussion, he was presented with draft legislation that had been run through LSC by Rep. Becker in September of 2020. That draft was ready for introduction.
I kept talking to Rep. Creech trying to get him to get the proposal introduced so that a bill that had clearer and easier content and was more effective for all Ohioans was introduced. We received nothing but excuses from him as to why he had not proceeded as he indicated he was going to.
Then the bombshell was dropped when he and West did their press announcement around Father’s Day last year with representatives of a Massachusetts-based non-profit at his side. Both Creech[1] and West were called and I asked for an “Interested Parties” Meeting at that time[2]. None was granted. As an organization, Ohio Family Rights tried to privately reach out to them for a private discussion and were told “We don’t work with other groups”. That is how messy and ineffective bills are created, by failing to listen to those who have walked the path and know the workings of the Statehouse.
Then after months, this 188-page mess of a bill was introduced[3]. Ohio families cannot afford another messy bill like the child support bill that took effect in March of 2018 and has seen increased litigation as parties fight over the number of overnights to gain minimal reductions in their child support. This bill will also significantly increase litigation and the associated costs.
After reading the entire bill, reading both LSC reports, listening to both the introduction testimony by Representatives West and Creech, and listening to the proponent testimony and comments that were made in both Committee hearings, this bill is not appropriate for Ohio or any other state.
One of the major concerns that have echoed through the members of the Committee has been the use of “clear and convincing” vs. the current “preponderance” standard that is used. With no disrespect intended for anyone on the Committee your belief that counties in Ohio have equal custody as a standard order shoots a hole in your argument since you believed false information in the same way that too often happens in the courtroom with a custody case. Attached at the end are Tuscarawas County’s Standard orders for both Local and Long Distance cases. As to the Shared Parenting report that NPO did, please take it with a grain of salt as it only considered Domestic Relations standard orders, not Juvenile/Probate orders. We looked at both and found large differences between the counties and court divisions. [4] One thing Ohio Family Rights will not do is mislead you with statements that we make.
Could this bill be amended to be appropriate for Ohio? In our opinion, no. It would have to be completely replaced to fix all the problems in the language. We are urging this Committee to shelve this bill for one that is more appropriate for Ohio’s families.
Should any members of the Committee have any questions, please feel free to contact me.
Ray R. Lautenschlager
Legislative Director
440-281-5478
president@ohiofamilyrights.com
Tuscarawas County Standard Order
Tuscarawas County Long Distance Order
The following is a line-by-line list of all the problems within HB508.
1. Line 808 - removal is not necessary
2. Line 893,894 there is a mediation conflict at another point
3. Line 1091-1590 - Removal of current shared parenting law and factors for determining custody
4. Line 1591[5] – Begins the removal of the special process for deployed or deploying active military personnel of the state.
5. Line 1591-1599 – Removes expedited hearing process for deploying
6. Line 1600-1605 – Removes the option to file before deploying
7. Line 1606 -1610 – Removes the court's ability to address the custody issues of deployment within 30 days of notice
8. Line 1611- 1622 – Removes the clause that prevents the court from holding service against a parent
9. Line 1623-1632 – Removes the ability of the court to issue a temporary order for deployment and then within 10 days of the notice.
10. Line 1633-1641 – Removes the ability of deployed or deploying from appearing by electronic means
11. Line 1642-1648 – Removes the ability to notify the court that service has ended within 30 days.
12. Line 1653 – 1660 – Removes the definition of active military service.
13. Line 1670-1673 – Removes the definition of uniformed services.
14. Line 1771-1787 – Does nothing to solve the problems of the never-married.
15. Line 1788-1795 – Already covered under the ORC
16. Line 1796-1808 – Limits the court to only addressing cases of marriage. Limits the courts to only issuing rulings that comply with “policy” instead of what is best for the child or the family.
17. Line 1809-1819 – Ohio already has shared parenting and the term parental rights and responsibilities are also used to label shared parenting plans.
18. Line 1820-1825 – Annulment only applies to marriages that were fraudulently done or were never consummated.
19. Line 1826-1833 – Contents of a shared parenting plan questionable placement and more relevant content to other sections of this bill.
20. Line 1834-1842 – Black’s Law is clear that all presumptions are rebuttable. Language is conflicting here since it says that the parents agree and then the court has to decide if it is best. Negates the purpose of parents coming to an agreement and will cause more litigation rather than encouraging negotiations.
21. Line 1843-1846 – Lacks an evidentiary standard by which the factors are to be determined.
22. Line 1847-1849 – How is this supposed to be demonstrated? To what degree is it to be demonstrated? Lack of criteria.
23. Line 1850-1874 – parental kidnapping? Abuse? 2919.25
24. Line 1874-1875 – Mental and physical for all parents? This will increase the costs involved in a case as every case will likely require expensive testing.
25. Line 1876- 1891 –No criteria for proceeding if determined by the court that the plan does not meet the objects or why.
26. Line 1892-1896 – No evidentiary standard
27. Line 1897-1904 – Ohio already has shared parenting and those orders are currently included in all final orders of divorce.
28. Line 1905-1909 – Final orders are not provisional orders when issued. Final orders are required to be marked Final and Appealable or no right of appeal exists.
29. Line 1910-1922 – Residential parent for school and public assistance purposes. Child support has nothing to do with the residence.
30. Line 1923-1929 – No evidentiary standard as to how these decisions should be made, nor are there any factors listed that should be used for how to make this decision.
31. Line 1930-1938 – Seems to indicate that they intend for a parent that does not physically have the child at the time to be free to enter the other parent’s home and have to say over that parent about how things are done within that home.
32. Line 1939-1950 – Tax codes require that a child lives within a home a majority of the time to be eligible to be claimed for tax purposes. Public assistance is based on the income amounts of that household.
33. Line 1957-1970 - 3109.0421 factors? Why factors that are different than other factors?
34. Line 1971-1981 – 3109.0422 factors? Why factors that are different than other factors?
35. Line 1988-1990 – 3109.0421(A) – This will immediately pit one parent against another in an effort to show that the other parent does not have the ability to get along or encourage cooperation that took place before the filing of the divorce or for the change of custody.
36. Line 1991-2000 – Ohio does not have a specific parental kidnapping law that applies to divorcing, divorced, or parents going through a custody battle. Ohio’s parental kidnapping law applies to cases where a child has been placed in state or county care because of allegations of child abuse by Children’s Services.
37. Line 2015-2016 – While mental health should be considered and testing is presently able to be motioned for, making this a standalone issue with likely increase litigation costs by forcing testing of all parties within a case.
38. Line 2017-2021 – The Guardian Ad Litem has been the eyes of the court within the home. Unfortunately, they are often a jaundiced eye and allow their perceptions to cloud what is going on. They are an added expense that has become more prevalent since the changes made to the child support laws were made in 2018 and the “dialing for days” began in the frivolous fight over 90 overnights to gain more days for the 20% swing that comes with it.
39. Line 2022 – 2025 – Lack of evidentiary standard by which the court is to consider the actors before it.
40. Line 2026 – 2049 – Ohio does not have a parental kidnapping law that applies to divorcing, divorced, or parents going through a custody battle. Ohio’s parental kidnapping law applies to cases where a child has been placed in state or county care because of allegations of child abuse by Children’s Services.
41. Line 2050-2053 – Geographic proximity is relevant to one's local area. Is this to be determined in miles, minutes of travel, or convenience of travel? Impede parenting time?
42. Line 2054-2058 – In Camera interview process. Lack of timeline of when that interview is to take place if it is to happen or how a determination is made whether a child is mature enough to testify.
43. Line 2059-2061 – Repeat of other factors
44. Line 2064-2065 – This will increase the cost of litigation as more use psychological testing to try to gain custody or refuse allegations made in opposition to a presumption.
45. Line 2066-2068 – Describes the issues of contempt of the court’s orders
46. Line 2069-2070 – Move away and establish residency outside of the state
47. Line 2071-2075 – Guardian Ad Litems are the eyes of the court and are supposed to give the court a set of eyes within the home. Referring back to 3109.44 limits them to only one available view that can be expressed to the court.
48. Lines 2076-2082 – Affidavit based on 3109.0422 determinations fail to consider if the affidavit is truthful as written.
49. Line 2083-2090 – Refers back to 3109.0421. Why split the decision-making and custody/visitation?
50. Line 2091-2095 – The courts are not qualified to make decisions based on social issues. They are not trained in social issues.
51. Line 2096 – 2100 – Lacks evidentiary standard and again circles back to 3109.420.
52. Line 2101 – 2105 – Refers back to a section that does not have factors listed.
53. Line 2106 – 2108 - Refers back to a section that does not have factors listed.
54. Line 2109 – 2117 - This asks the courts to apply a “Crystal Ball” approach to awarding custody by requiring that they predict the future actions of the parties involved.
55. Line 2118 – 2119 – Welfare of the child is a decision that can only be made by two fit parents (Parham) and would allow the courts to control the child based on their thought pattern and not that of the parents involved. This significantly raises the issue of interference in parents’ fundamental rights.
56. Line 2120 – 2125 – Again this circles back to 3109.0420.
57. Line 2126 – 2134 – Lack of evidentiary standard of review for criteria by which the “rebuttal” must be handled and a lack of standard by which the court must support its decision either way.
58. Line 2135 – 2142 – In Camera interview process. Lack of timeline of when that interview is to take place if it is to happen.
59. Line 2143 – 2147 – Does not contain criteria that a court shall use when appointing a Guardian Ad Litem or who will pay for the GAL. If the court uses its discretion, is the court going to pay the cost or assign it to the parents involved? Will those costs be split equally or unequally? Who will pay the cost if a parent cannot pay the cost?
60. Line 2148-2168 - Lack of timeline of when that interview is to take place if it is to happen. Fails to have any clear definition of what the judge must do if they deny the interview and the criteria that they used to determine why the child should not speak directly with them as requested. Fails to clearly describe what special circumstances are for denying an interview or define what a special circumstance is.
61. Line 2169 – 2173 – Under this section if a judge allows the attorney of a represented party and denies an unrepresented party (pro se), does this fall under ex parte communications?
62. Line 2185 – 2196 – What are the criteria for ordering psychological or psychiatric exams? Who is to pay this expense if the court orders this? What will happen if the parties are low-income and have obvious mental problems that warrant examination? Making these reports available to parties opens up possible issues of misuse of the reports.
63. Line 2197 – 2241 – Why is the court being given the ability to place a child with a known sexual or physical abuser? Doing such is far from acting in the best interest of any child and risks further abuse and trauma.
64. Line 2246 – 2255 – What is the evidentiary standard that the court is to use to make this determination? Why not the entire record with the court’s hands? When transferring the case from Domestic Relations to Juvenile Court, does the case remain with Juvenile Court permanently or does it transfer back to Domestic Relations once a determination has been made by the court? Which is the “Court of Competent Jurisdiction” for which issues?
65. Line 2256 – 2264 – This current law and is unchanged.
66. Line 2267 – 2295 – Following the timeline that is laid out, the court would be making a determination based solely on affidavits, not on evidence. With no hearing or trial, it would be impossible to make a determination based on clear and convincing evidence that is called for. This would greatly increase the use of false allegations in an effort to gain an advantage from the beginning of a case.
67. Line 2296-2304 – Until a prospective (punitive) father has filed for establishment of themselves as a legal father and been determined to be such by DNA, being named on the birth certificate has no legal bearing in the State of Ohio.
68. Line 2320 – 2328 - Lack of evidentiary standard that the court is to apply in making their determination. There is a recent Ohio Supreme Court case that set a new precedence for what it takes to change custody. Bruns v Green http://www.ohiofamilyrights.com/New/Bruns%20V%20Green.htm
69. Line 2329 – 2342 - Lack of evidentiary standard that the court is to apply in making their determination. What is detrimental to one person may not be viewed as detrimental to another or the court or vice versa.
70. Line 2343 -2356 -. The preponderance standard that the court is to apply in making their determination in this clause opens up the ability to use false allegations of disruptive behavior to their advantage to terminate a shared parenting agreement at will. When you compare this section with the previous section it becomes easier to terminate a current shared parenting plan than to make modifications.
71. Line 2357 – 2369 – The previous section laid out the termination of a shared parenting agreement and now in this section directs the parents and the court to go back to arguing the presumption. Common sense tells anyone that this will throw the parties into an endless loop of litigation.
72. Line 2370 – 2386 – Previously covered in Lines 2320 – 2328 except here it uses parental rights and responsibilities rather than shared parenting.
73. Line 2387 – 2394 - Previously covered in Lines 2320 – 2328 except here it uses parental rights and responsibilities rather than shared parenting.
74. Line 2395 – 2399 – Current law renumbered. As a side note, appeals cases are rarely expedited.
75. Line 2400 – 2425 - Current law renumbered.
76. Line 2426 – 2459 – There is some very confusing language within this section as it starts with a discussion of parenting time orders in divorce and then drifts into a discussion of abuse and neglect cases. The language at one point limits children’s protective services from supervising parent's time with their children and then flips to what a juvenile court may do when there are founded allegations of abuse.
77. Line 2460 –2481 – ORC 3109.051 renumbered
78. Line 2482 – 2566 - Current law renumbered
79. Line 2567 – 2580 – Current law renumbered
80. Line 2581 – 2616 – Previously covered in another section but with shared parenting used instead of parenting time.
81. Line 2617 – 2628 – Waiver of fees for the indigent? While this has and is currently done, why is the requirement being added that the court determine that the motion be with merit before determining to waive the fees?
82. Line 2629 – 2635 – Part of current law renumbered. Reasonable parenting time is vague at best because what is reasonable to one person is unreasonable to another.
83. Line 2636 – 2647 – This section will cause every parent to file a notice with the court when they move from the residence listed on their court orders. There are no specifics listed as to how soon before said move that notice is to be filed. This will overburden the court with unnecessary hearings on frivolous matters.
84. Line 2648 – 2688 – This will cause the court to do a full investigation of all parties to make the determinations required. Likely will cause the use of a GAL and those associated expenses for a simple move from one local address to the next, even a move from one apartment in the same building to another.
85. Line 2689 – 2729 – Why are we requiring a full determination of custody, fitness, or abuse for a simple act of moving residences?
86. Line 2730 – 2752 – FERPA requirement that is echoed within Ohio law. While the last sentence is a novel approach to problems that often come up with school and medical records, is it even legally possible to hold a nonparty to a case in contempt?
87. Line 2753 – 2775 – Getting records is not a problem that residential parents have, it is a problem that nonresidential parents have.
88. Line 2776 – 2782 – Unnecessary and frivolous burden on the county prosecutor. Waste of tax dollars and resources.
89. Line 2783 – 2806 – Daycare limits, I am sorry but this is bordering on getting silly at this point. Is this and the limits it imposes also going to apply to grandparents who babysit while a parent works?
90. Line 2807 – 2831 - Is it even legally possible to hold a nonparty to a case in contempt?
91. Line 2832 – 2859 – School systems are not police departments for enforcing court orders related to custody. Again we have that question, is it even legally possible to hold a nonparty to a case in contempt?
92. Line 2860 – 2873 – Say hello to the cookie-cutter approach that the judges have claimed that such bills want them to use. This clause has just done just that.
93. Line 2874 – 2895 – Why is the separate section for contempt related to missed visitation time and penalties that are stronger than normal for contempt of other sections of the order? Why do we have to decide if the “make-up time” is detrimental if the party already has court-ordered time?
94. Line 2899 – 2997 - Mediation is nonbinding under Ohio law except for that which takes place under a collaborative law agreement. Why is the court being required to make determinations related to custody and abuse before ordering mediation? Those would have already been made or determined by any investigation previously or currently being made of the parties and their households. Who is paying for mediation or is it even legally possible to hold a nonparty to a case in contempt? Is this a cost to be split equally between the parties? Does this burden fall on the taxpayers? What if the parties cannot afford the expense?
95. Line 2998 – 3118 – Everything taken out before under the military section is put back in under a different number. There is absolutely no need or justification for doing so other than generating busy work for LSC. No wonder Rep. Schmidt and others complained that they had problems getting LSC to get bills they wanted to introduce done.
96. Line 3148 – 3165 – This is an unnecessary reporting requirement that is being placed on the courts. This will increase the cost of operation of the courts and expose the names of parents and children to the public.
97. Line 3368 – 3448 – Lacks an evidentiary standard by which the determination is to be made.
98. Line 3449 – 3734- Affects temporary guardianship assignments that parents often have to use because of short-term events in their lives. Could greatly affect those with domestic violence protection orders that involve the parents and their child. This could endanger the children involved that a parent has asked the court to help protect.
99. Line 3735 – 4342 – Will greatly affect those who have sought domestic violence orders from the local municipal courts because of a violent act that they have been a victim of.
100. Line 4343 – 4585 – Frivolous addition of “parental rights and responsibilities” to the child support section that became law in March of 2018.
101. Line 4586 – 4603 - Third-party rights and child support relief as far as terminating the child support, modifying it, or continuing it. No evidentiary standard of review was stated.
102. Line 4604 – 5512 – These lines have changes that refer back to other sections.
Problems in the Substitute Bill
1. Replaced Clear and Convincing with Preponderance for custody cases.
While
we have found that this bill fails in so many ways, this change brings about
further failure to protect the rights of any parent. With so many attorneys and
former judges and magistrates on this Committee, I am surprised by the fact
that there are rights here that must be considered with the strict scrutiny
that comes with “Clear and Convincing” versa the current preponderance
standard.
To keep it simple for all, once a court grants more time or privileges to one
parent over the other there does exist an enhancement of one person’s rights
and the deprivation of the other’s. Case law does suggest as well as due
process clauses of the U.S. Constitution and the State Constitution that this
can only take place under strict scrutiny. Yet another reason why this bill
should die here and be reworked completely.
2. Added more specific guidelines for what needs to be included in parenting plans (pg. 63-64, 3109.046).
This comes from OJC, JFS, and CSEA's feedback.
We added a more specific list of what needs to be in a parenting plan, including child support designation, dispute resolution, child exchange procedures, etc...
Reading the new requirement of the plans there are major concerns in that parents would be required to submit plans that control and predict the life of a child in advance of any changing interests of the child. Although not addressed, the language would require separate plans for each child, now and well into the future.
3. Require parents to provide proposed plans and relevant details to the court no less than 30 days before trial (pg. 65, 3109.048; pg. 69, 3109.0419).
This comes from OBJA's feedback
4. Streamlined the relocation procedures, making it more clear what is expected when parents relocate or intend to relocate with a child (pg. 101-105, 3109.070-3109.079).
This comes from OJC's language and we agree
Lines 2982 -2983- Defines relocation as “any time an address changes”. This becomes frivolous and will increase litigations that overburden the courts since even moving from apartment A to apartment B is considered a move that will be challengeable in court. This will increase litigation and cause an overburdening of the courts.
Lines 2991 – 2996 – Which is it, 60 days in advance or within 10 days of when the parents knew? With no proof of evidence, there is no ability of the court to determine which date they would have to use in making a decision.
Lines 2997 – 3006 – There is a common-sense question that needs to be answered, “How can a relocating parent provide a new address if they have not been permitted to relocate by the court?”
Lines 3007 – 3024 – There are major “red flags” within this as the Courts retain the ability to circumvent the due process clauses of the US and Ohio Constitutions by waving service requirements in a discretionary manner and through ex parte hearing. There is no guidance as to how quickly a hearing should be held on the ex parte hearing or what evidentiary standard the Courts are to use.
Lines 3025 – 3028 – What determines “good cause”? The court’s discretion? To what extent does the court have to support its decision that it is a “good cause”?
Lines 3039 – Does the nonmoving parent have to file contempt or is this a situation where the court uses direct contempt?
5. Improved the process when a parent is found to have been withholding court-ordered parenting time, including make-up time, attorney's fees, and the ability for the court to modify a parenting plan if necessary to protect and facilitate the parent-child relationship (pg. 111-113, 3109.0491-3109.0494).
Lines 3273 – 3278 – The 28-day requirement to hold a hearing does not comply with the Rules of Civil Procedure and would not allow time to respond as is required.
Lines 3279 – 3283 – This is a contempt proceeding and your courts are required to give a parent time to “purge” that contempt before applying any “punishment” for contempt.
Lines 3284 – 3295 – Unreasonable is not definable in legal terms. What may be unreasonable to one person is not unreasonable to another.
Lines 3296 – 3300 - What may be unreasonable to one person is not unreasonable to another and may not be unreasonable to the judge or magistrate hearing the case before them. Like the previous section, there is no evidentiary standard by which the evidence should be viewed.
Lines 3301 – 3317 – We walk a very slippery slope when we allow a judge to change a custody order on their motion when the issue before the court is not following the order.
As I examine the various “punishments” available to the Court, I see nothing that brings any real solution to the court that is better than the current fine and or jail time that is present now. The problem with contempt proceedings now is that they too often end with punishment being nothing more than a warning.
6. Add a "fitness" factor to all rebuttal factors (pg. 66, 3109.0411[D]; pg. 72, 3109.0421[E]; pg. 74. 3109.0422[J]).
This came directly from magistrates we spoke with.
They requested there be a specific factor to account for parents who are clearly incapable or unfit.
To find a parent unfit or incapable to parent a child requires the strictest scrutiny. With the evidentiary standard being preponderance, we stay at the present “he said/she said” that we have today.
7. Provide recourse for false allegations (pg. 74, 3109.0423; pg.105-106, 3109.0481).
OJC's bill has similar language
Allows the courts to consider and award attorney fees when a parent has been found to have lied, misled the court or made false allegations against the other parent.
Requires the court to consider whether a parent has lied or misled the court when allocating parental rights to one parent over the other.
The use of false allegations has been and will remain rampant within custody cases until the evidentiary standards are raised to clear and convincing evidence. These allegations have far-reaching effects on those that are the recipient and can affect their home and work life including loss of job in some cases.
Is it the intent of these sections to allow the court the discretion to award dollar-for-dollar compensation for the financial loss from the loss of a job or until suitable replacement employment is found?
Does this apply only to allegations of abuse, or are other false allegations included?
2. Replaced Clear and Convincing with Preponderance for custody cases.
While
we have found that this bill fails in so many ways, this change brings about
further failure to protect the rights of any parent. With so many attorneys and
former judges and magistrates on this Committee, I am surprised by the fact
that there are rights here that must be considered with the strict scrutiny
that comes with “Clear and Convincing” versa the current preponderance
standard.
To keep it simple for all, once a court grants more time or privileges to one
parent over the other there does exist an enhancement of one person’s rights
and the deprivation of the other’s. Case law does suggest as well as due
process clauses of the U.S. Constitution and the State Constitution that this
can only take place under strict scrutiny.
2. Added more specific guidelines for what needs to be included in parenting plans (pg. 63-64, 3109.046).
This comes from OJC, JFS, and CSEA's feedback.
We added a more specific list of what needs to be in a parenting plan, including child support designation, dispute resolution, child exchange procedures, etc...
Reading the new requirement of the plans there are major concerns in that parents would be required to submit plans that control and predict the life of a child in advance of any changing interests of the child. Although not addressed, the language would require separate plans for each child, now and well into the future.
3. Require parents to provide proposed plans and relevant details to the court no less than 30 days before trial (pg. 65, 3109.048; pg. 69, 3109.0419).
This comes from OBJA's feedback
4. Streamlined the relocation procedures, making it more clear what is expected when parents relocate or intend to relocate with a child (pg. 101-105, 3109.070-3109.079).
This comes from OJC's language and we agree
Lines 2982 -2983- Defines relocation as “any time an address changes”. This becomes frivolous and will increase litigations that overburden the courts since even moving from apartment A to apartment B is considered a move that will be challengeable in court. This will increase litigation and cause an overburdening of the courts.
Lines 2991 – 2996 – Which is it, 60 days in advance or within 10 days of when the parents knew? With no proof of evidence, there is no ability of the court to determine which date they would have to use in making a decision.
Lines 2997 – 3006 – There is a common-sense question that needs to be answered, “How can a relocating parent provide a new address if they have not been permitted to relocate by the court?”
Lines 3007 – 3024 – There are major “red flags” within this as the Courts retain the ability to circumvent the due process clauses of the US and Ohio Constitutions by waving service requirements in a discretionary manner and through ex parte hearing. There is no guidance as to how quickly a hearing should be held on the ex parte hearing or what evidentiary standard the Courts are to use.
Lines 3025 – 3028 – What determines “good cause”? The court’s discretion? To what extent does the court have to support its decision that it is a “good cause”?
Lines 3039 – Does the nonmoving parent have to file contempt or is this a situation where the court uses direct contempt?
5. Improved the process when a parent is found to have been withholding court-ordered parenting time, including make-up time, attorney's fees, and the ability for the court to modify a parenting plan if necessary to protect and facilitate the parent-child relationship (pg. 111-113, 3109.0491-3109.0494).
Lines 3273 – 3278 – The 28-day requirement to hold a hearing does not comply with the Rules of Civil Procedure and would not allow time to respond as is required.
Lines 3279 – 3283 – This is a contempt proceeding and your courts are required to give a parent time to “purge” that contempt before applying any “punishment” for contempt.
Lines 3284 – 3295 – Unreasonable is not definable in legal terms. What may be unreasonable to one person is not unreasonable to another.
Lines 3296 – 3300 - What may be unreasonable to one person is not unreasonable to another and may not be unreasonable to the judge or magistrate hearing the case before them. Like the previous section, there is no evidentiary standard by which the evidence should be viewed.
Lines 3301 – 3317 – We walk a very slippery slope when we allow a judge to change a custody order on their motion when the issue before the court is not following the order.
As I examine the various “punishments” available to the Court, I see nothing that brings any real solution to the court that is better than the current fine and or jail time that is present now. The problem with contempt proceedings now is that they too often end with punishment being nothing more than a warning.
6. Add a "fitness" factor to all rebuttal factors (pg. 66, 3109.0411[D]; pg. 72, 3109.0421[E]; pg. 74. 3109.0422[J]).
This came directly from magistrates we spoke with.
They requested there be a specific factor to account for parents who are clearly incapable or unfit.
To find a parent unfit or incapable to parent a child requires the strictest scrutiny. With the evidentiary standard being preponderance, we stay at the present “he said/she said” that we have today.
7. Provide recourse for false allegations (pg. 74, 3109.0423; pg.105-106, 3109.0481).
OJC's bill has similar language
Allows the courts to consider and award attorney fees when a parent has been found to have lied, misled the court or made false allegations against the other parent.
Requires the court to consider whether a parent has lied or misled the court when allocating parental rights to one parent over the other.
The use of false allegations has been and will remain rampant within custody cases until the evidentiary standards are raised to clear and convincing evidence. These allegations have far-reaching effects on those that are the recipient and can affect their home and work life including loss of job in some cases.
Is it the intent of these sections to allow the court the discretion to award dollar-for-dollar compensation for the financial loss from the loss of a job or until suitable replacement employment is found?
Does this apply only to allegations of abuse, or are other false allegations included?
The Elephant in the Room
When I look at who the “advice” came from for this Substitute bill I do wonder why those in the House and Senate continue to involve Judges in creating legislation. I can hear the counterargument now, “But we always have done that.”
With all due respect to all, just because you have always done it doesn’t mean that you are doing it right.
I did examine what the Ohio Revised Code says about their involvement and have attached what I found. [6]
Testimony of Amy Roehrenbeck, Esq. of Ohio CSEA Directors’ Association
While reading and listening to the testimony of Ms. Roehrenbeck I did have some questions that came to mind that someone from the Committee should ask her to answer.
While she claims that they aggressively attempt to collect child support from fathers who owe, why don’t her member agencies take the same aggressive approach to collect from mothers who owe?
As a few examples:
1. A father in Columbus has an ex-wife who owes $30,000 in back support for their child. The mother has stated in open court when asked about the arrearage that “she is the mother and does feel she should have to pay any child support”. That amount of arrearage is in the felony non-support level, yet Franklin County CSEA has not filed contempt or criminally charged her for the obvious felony.
2. A father (never-married) in Cuyahoga County is not receiving child support from the mother despite having the child full-time and the mother being ordered to pay. When the father contacts the local office he is told that it is his responsibility to track her down not the local agency’s. At one point he received a letter telling him that he was in arrears despite a court order to the contrary. He called and was told that his entire case fill did not exist in the system.
3. The father in the Toledo area has waited for three years for the local office to enter his order for the mother to pay support.
4. A father in Delaware, Ohio called to check on his child support balance which was well paid in advance. He does this because of his national security clearance. CSEA agent immediately presumed him to be “another deadbeat” trying to get out of their obligation. Her attitude changed when she saw that he was $6000 to the good.
I thank you all for your time. Should you have any questions, please feel free to contact me.
Ray R. Lautenschlager
Legislative Director
440-281-5478
president@ohiofamilyrights.com