Problems in the Substitute Bill for HB14

 

PDF Format

 

5/10/2022

 

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 clearer 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

 

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 challenged 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, the court cannot 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 of parenting 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 of a job or until suitable replacement employment is found?

 

Does this apply only to allegations of abuse, or are other false allegations included?