Ray R Lautenschlager
Ohio Family Rights Testimony in Opposition
Thank you for allowing me to submit testimony today, Chairman Manning, Assistant Chair Michele
Reynolds, Ranking Member Paula Hicks-Hudson, and the rest of the members of the committee. We do
have some questions for some of the committee members, and I would request that the Chair instruct
the members to answer as soon as possible.
I will also clear up some confusion that came up in the proponent testimony.
My name is Ray R. Lautenschlager, and I speak not only for myself but for Ohio Family Rights and its
members. I apologize for not being able to appear in person, but I am submitting written testimony that
is a must-read for all members of the Senate, not just this committee.
On this day 22 years ago, I stood before a House committee testifying in favor of the first bill I worked
on then, with many members of the House. That day was also my 48th birthday.
We are firmly opposed to SB174 for good reason, and you
should be, too. After reading this bill, we have found
language within this bill that will tumble Ohio backward to
before 1978, when Ohio first started using joint custody as it
standard. We have to wonder why it is the desire of the
sponsors to remove shared parenting from Ohio law.
We are questioning why the sponsors have not disclosed
that they will benefit from the passage of this bill.
We have to wonder why the Chairman of this Committee did
not follow Ohio law and allow Judge Fuller to testify in favor
of this bill? Ohio law is very clear on that procedure.
(Attached is our position paper on the Judiciary testifying,
and it is based on the Revised Code.)
Additionally, did the Chairman or other members of this Committee report to the Supreme Court that a
judge testified on this bill? There is a judge that currently fighting a disciplinary complaint for testifying
on a bill. Picking and choosing who has complaints filed against them undermines the integrity of the
judiciary.
I have read through the 417 Pages of this bill and found numerous problems:
Removes the words "parental rights" and replaces them with "parental responsibilities"
throughout the code --- parents have responsibilities, NOT rights, according to the Judges. The
court must appoint a "designated parent" to have legal custody. The switch to the use of
“designated parent” from the current use of residential with cause problems with taxes for
school districts and a major conflict with the language other states use.
Has the appropriate paperwork been prepared for filing to remove Ohio from the Uniform Child
Custody Jurisdiction and Enforcement Act?
Offers no guidance for courts on where to begin. i.e., a baseline.
Gives courts "complete discretion" over all parenting plans -- which means total power to do
what they "feel is best" no matter what. Even if parents agree!
Within the section on courts, there are major inconsistencies between counties. In some
counties, only a judge (not magistrates as currently used) will be able to hear a custody case.
Courts aren't just "approving" plans those parents submit; they get to "issue" one of their own if
they want -- again maximizing control of the family.
Adds even more factors to consider without guidance on what to DO with those factors. So,
courts must apply their personal biases and opinions to even more factors.
Requires courts to create a plan specific to the child's age and developmental stage. All children
develop at a different rate, and this would require a parenting plan that tries to take that into
consideration, which is impossible.
Courts can deny a joint request by both parents for "equal time" if the court thinks it's "best".
Creates additional "best interest" factors, including a parent's "past performance" and parents'
work schedules related to the child's schedule. This allows courts to give preference to a stay-at-
home mom over a working dad, for instance--simply because the dad has a job.
They have new criteria for determining if a parent is "unsuitable" to parent and explicitly state
that they must only apply the preponderance of evidence (the lowest standard there is) when
deciding if a parent is unsuitable. Factors include "abandonment" and "detrimental". The whole
criteria for who is "unsuitable" is subjective, with a very low standard of evidence. This will allow
abusive and neglectful parents to be based on a lower evidentiary standard than is suggested by
the United States Supreme Court. (Attached is our position paper on the evidentiary standard
that is used.)
Never-married fathers cannot file for custody or visitation with their children.
A person being "fearful of harm," under preponderance of evidence, is a specified reason to
restrict a parent's responsibilities or time with their children. This is an attempt to confuse civil
restraining orders with criminal restraining orders.
At any point during the open case, the court can order a multitude of investigations and
evaluations at the parents' expense. What for? To investigate a parent's "character, past
conduct, family relations, etc."
Custody Jurisdiction and Enforcement Act?
Offers no guidance for courts on where to begin. i.e., a baseline.
Gives courts "complete discretion" over all parenting plans -- which means total power to do
what they "feel is best" no matter what. Even if parents agree!
Within the section on courts, there are major inconsistencies between counties. In some
counties, only a judge (not magistrates as currently used) will be able to hear a custody case.
Courts aren't just "approving" plans those parents submit; they get to "issue" one of their own if
they want -- again maximizing control of the family.
Adds even more factors to consider without guidance on what to DO with those factors. So,
courts must apply their personal biases and opinions to even more factors.
Requires courts to create a plan specific to the child's age and developmental stage. All children
develop at a different rate, and this would require a parenting plan that tries to take that into
consideration, which is impossible.
Courts can deny a joint request by both parents for "equal time" if the court thinks it's "best".
Creates additional "best interest" factors, including a parent's "past performance" and parents'
work schedules related to the child's schedule. This allows courts to give preference to a stay-at-
home mom over a working dad, for instance--simply because the dad has a job.
They have new criteria for determining if a parent is "unsuitable" to parent and explicitly state
that they must only apply the preponderance of evidence (the lowest standard there is) when
deciding if a parent is unsuitable. Factors include "abandonment" and "detrimental". The whole
criteria for who is "unsuitable" is subjective, with a very low standard of evidence. This will allow
abusive and neglectful parents to be based on a lower evidentiary standard than is suggested by
the United States Supreme Court. (Attached is our position paper on the evidentiary standard
that is used.)
Never-married fathers cannot file for custody or visitation with their children.
A person being "fearful of harm," under preponderance of evidence, is a specified reason to
restrict a parent's responsibilities or time with their children. This is an attempt to confuse civil
restraining orders with criminal restraining orders.
At any point during the open case, the court can order a multitude of investigations and
evaluations at the parents' expense. What for? To investigate a parent's "character, past
conduct, family relations, etc."
There are conflicts with FERPA (Federal Education Rights of the Parent Act) and conflicts with
current law.
Sets military rights during deployment back to before the past updates in 2012.
Allows total strangers to file for custody of a child.
Never-married fathers are not permitted to file for custody of their children. That section alone
raises serious constitutional issues with this bill. This also raises the sincerity of the Senate and
the House when they granted $20 million to the Ohio Fatherhood Commission to get more
never-married fathers involved.
I did talk to members of the Ohio Fatherhood Commission and was told directly that this bill was
never presented to the commission and that, according to Kimberley Dent, does not comment
or approve legislation in this state. Assistant Chair Michele Reynolds is a member of that
commission and never spoke up when a member of the BAR Association stated it.
Why is the testimony of Judge Fuller and Senator Gavarone, and Senator Hicks-Hudson the
same? Who wrote for whom, or can’t the sponsors speak in their own words about this bill? Or
have the sponsors not even read or understood what they introduced?
Should this bill be passed, it will affect the ability of grandparents to see their
grandchildren.
It will allow the courts the ability to determine how a child is educated and if a parent,
not both parents, to determine if a minor goes through transgender
conversion. Conservatives fought hard to get that into law, and now the judges want
that control.
There is common-sense legislation available that brings up the out-of-date law to modern
societal standards; unfortunately, the Ohio Senate is refusing to recognize that at this
present time. That legislation is currently in LCS for introduction in the House. If any of you
wish to discuss that proposal, please feel free to contact me.
Ray R. Lautenschlager
Legislative Director
440-281-5478
Ohio Family Rights
legislation@ohiofamilyrights.com
current law.
Sets military rights during deployment back to before the past updates in 2012.
Allows total strangers to file for custody of a child.
Never-married fathers are not permitted to file for custody of their children. That section alone
raises serious constitutional issues with this bill. This also raises the sincerity of the Senate and
the House when they granted $20 million to the Ohio Fatherhood Commission to get more
never-married fathers involved.
I did talk to members of the Ohio Fatherhood Commission and was told directly that this bill was
never presented to the commission and that, according to Kimberley Dent, does not comment
or approve legislation in this state. Assistant Chair Michele Reynolds is a member of that
commission and never spoke up when a member of the BAR Association stated it.
Why is the testimony of Judge Fuller and Senator Gavarone, and Senator Hicks-Hudson the
same? Who wrote for whom, or can’t the sponsors speak in their own words about this bill? Or
have the sponsors not even read or understood what they introduced?
Should this bill be passed, it will affect the ability of grandparents to see their
grandchildren.
It will allow the courts the ability to determine how a child is educated and if a parent,
not both parents, to determine if a minor goes through transgender
conversion. Conservatives fought hard to get that into law, and now the judges want
that control.
There is common-sense legislation available that brings up the out-of-date law to modern
societal standards; unfortunately, the Ohio Senate is refusing to recognize that at this
present time. That legislation is currently in LCS for introduction in the House. If any of you
wish to discuss that proposal, please feel free to contact me.
Ray R. Lautenschlager
Legislative Director
440-281-5478
Ohio Family Rights
legislation@ohiofamilyrights.com
Has the Ohio Judiciary Overstepped Their
Bounds?
A Look at the Judiciary and Objections to Reforms in Family
Law
It may be time for us to examine current Ohio laws and stated
policies of the state, policies that were enacted by the General
Assembly. What we need to look at is whether or not those
policies are truly being followed or if the Ohio judiciary has
overstepped its bounds and is now usurping the authority of the General Assembly to control the
policies on how the families of Ohio are treated. This report intends to analyze if the judges of the State
of Ohio have in the past stepped outside of the legal authority contained in the Ohio Revised Code, Ohio
and United States Constitution and their Cannons of Conduct, when it comes to commenting on
introduced bills that affect public policy on the families in this state.
To fully piece this together three different elements come into play that I will give general overviews of
and then later show how they all piece together as the argument for telling judges to stop their
objections to changes to the law that will benefit every citizen of the State of Ohio as well as the
operation of the courts in the end.
Separation of Powers
The intent of separation of powers in a tripartite system of government is to limit the role members of
the judiciary, executive branch, and the legislative branches have in the function of the other branches.
This is to assure checks and balances between the three branches of government in its constitutional
structure; that no branch became so powerful that it took authority over another. That none of the
three branches blatantly interfered with the operation of another branch.
The Executive Branch has the responsibility of running the daily operations of the government’s
multiple agencies. They can suggest changes to the law but cannot under normal circumstances write
and pass a law or rule without the approval of the Legislature.
Bounds?
A Look at the Judiciary and Objections to Reforms in Family
Law
It may be time for us to examine current Ohio laws and stated
policies of the state, policies that were enacted by the General
Assembly. What we need to look at is whether or not those
policies are truly being followed or if the Ohio judiciary has
overstepped its bounds and is now usurping the authority of the General Assembly to control the
policies on how the families of Ohio are treated. This report intends to analyze if the judges of the State
of Ohio have in the past stepped outside of the legal authority contained in the Ohio Revised Code, Ohio
and United States Constitution and their Cannons of Conduct, when it comes to commenting on
introduced bills that affect public policy on the families in this state.
To fully piece this together three different elements come into play that I will give general overviews of
and then later show how they all piece together as the argument for telling judges to stop their
objections to changes to the law that will benefit every citizen of the State of Ohio as well as the
operation of the courts in the end.
Separation of Powers
The intent of separation of powers in a tripartite system of government is to limit the role members of
the judiciary, executive branch, and the legislative branches have in the function of the other branches.
This is to assure checks and balances between the three branches of government in its constitutional
structure; that no branch became so powerful that it took authority over another. That none of the
three branches blatantly interfered with the operation of another branch.
The Executive Branch has the responsibility of running the daily operations of the government’s
multiple agencies. They can suggest changes to the law but cannot under normal circumstances write
and pass a law or rule without the approval of the Legislature.
The Judicial Branch has the responsibility of operating the court system of the state and deciding issues
of controversy or criminal activity that are brought before the Courts.
The Legislative Branch is solely responsible for writing and passing the laws which govern the state and
protect its citizens.
This is a simple concept that is intended to keep the power and authority of one branch from becoming
totalitarian over the citizenry or the other branches of government and prevent the monarchy type of
government that the original settlers to this land left England to get away from. A simple concept that is
often forgotten in times where we see and hear often about the courts making rulings on laws that they
did not write nor did they pass. Too often in the media frenzy of these cases, it is forgotten that it is the
individual citizen and not the Courts that have brought these cases before them for a decision based on
a particular set of circumstances that have occurred. The Court cannot comment until the suit is filed
and must remain silent until asked to decide if a true controversy exists.
Authority to Comment Under the Ohio Revised Code
While the judges of this state are permitted to comment on newly introduced bills there are limitations
on what they can comment on if they oppose and procedures that they have to follow in doing so. The
following is the Ohio Revised Code that spells out the process with a couple of key phrases highlighted
that have been keys to pass bills that make changes to family law.
105.911 Judicial impact statement. (Emphasis added)
(A) If a bill or resolution introduced in the general assembly appears to affect the revenues or
expenditures of the courts of Ohio, to increase or decreasei the workload or caseload of judges
or members of their staffs, or to affect case disposition, the Ohio judicial conference may
prepare a judicial impact statement of the bill or resolution on its own initiative or at the
request of any member of the general assembly. The Ohio judicial conference may prepare a
judicial impact statement before the bill or resolution is recommended for passage by the house
of representatives or senate committee of the general assembly to which the bill was referred
of controversy or criminal activity that are brought before the Courts.
The Legislative Branch is solely responsible for writing and passing the laws which govern the state and
protect its citizens.
This is a simple concept that is intended to keep the power and authority of one branch from becoming
totalitarian over the citizenry or the other branches of government and prevent the monarchy type of
government that the original settlers to this land left England to get away from. A simple concept that is
often forgotten in times where we see and hear often about the courts making rulings on laws that they
did not write nor did they pass. Too often in the media frenzy of these cases, it is forgotten that it is the
individual citizen and not the Courts that have brought these cases before them for a decision based on
a particular set of circumstances that have occurred. The Court cannot comment until the suit is filed
and must remain silent until asked to decide if a true controversy exists.
Authority to Comment Under the Ohio Revised Code
While the judges of this state are permitted to comment on newly introduced bills there are limitations
on what they can comment on if they oppose and procedures that they have to follow in doing so. The
following is the Ohio Revised Code that spells out the process with a couple of key phrases highlighted
that have been keys to pass bills that make changes to family law.
105.911 Judicial impact statement. (Emphasis added)
(A) If a bill or resolution introduced in the general assembly appears to affect the revenues or
expenditures of the courts of Ohio, to increase or decreasei the workload or caseload of judges
or members of their staffs, or to affect case disposition, the Ohio judicial conference may
prepare a judicial impact statement of the bill or resolution on its own initiative or at the
request of any member of the general assembly. The Ohio judicial conference may prepare a
judicial impact statement before the bill or resolution is recommended for passage by the house
of representatives or senate committee of the general assembly to which the bill was referred
and again before the bill or resolution is taken up for final consideration by either house of the
general assembly. The judicial impact statement shall include an estimate, in dollars, of the
amount by which the bill or resolution would increase or decrease revenues or expenditures
and any other information the Ohio judicial conference considers necessary to explain the fiscal
effect of the bill or resolution. The statement also shall include an analysis of the bill or
resolution's administrative and procedural effects on the courts of this state.
(B) The Ohio judicial conference shall distribute copies of a judicial impact statement as follows:
(1) For consideration by the senate or house of representatives rules committee, or the standing
committee to which a bill is referred, two copies to the chairman together with a copy to each
member of the committee;
(2) For final consideration, a copy to each member of the house that is considering the bill. If the
member who introduced the bill or resolution or who requested the statement is not a member
of the house or rules committee considering the bill, the Ohio judicial conference shall send the
member a copy.
(C) In preparing a judicial impact statement the Ohio judicial conference may request any court,
department, division, institution, board, commission, authority, bureau, or other instrumentality
or officer of the state or of a county, municipal corporation, township, school district, or other
governmental entity of the state to provide any of the following information:
(1) An estimate, in dollars, of the amount by which the bill or resolution would increase or
decrease the revenues or expenditures received or made by the court, instrumentality, officer,
or entity;
(2) Any other information the Ohio judicial conference considers necessary for it to understand
or explain the fiscal, administrative, and procedural effects of the bill or resolution.
The Ohio judicial conference first shall contact the Ohio legislative budget office for
information regarding the fiscal effects of the bill or resolution. If the Ohio legislative budget
office does not have the fiscal information sought by the Ohio judicial conference, then the Ohio
judicial conference and the Ohio legislative budget office jointly may request any of the entities
described in division (C) of this section to provide the fiscal information.
A court, instrumentality, officer, or entity shall comply with a request for information as soon as
reasonably possible after receiving it. The Ohio judicial conference shall specify the manner of
compliance in its request and, if necessary, may specify a period of no longer than five days for
general assembly. The judicial impact statement shall include an estimate, in dollars, of the
amount by which the bill or resolution would increase or decrease revenues or expenditures
and any other information the Ohio judicial conference considers necessary to explain the fiscal
effect of the bill or resolution. The statement also shall include an analysis of the bill or
resolution's administrative and procedural effects on the courts of this state.
(B) The Ohio judicial conference shall distribute copies of a judicial impact statement as follows:
(1) For consideration by the senate or house of representatives rules committee, or the standing
committee to which a bill is referred, two copies to the chairman together with a copy to each
member of the committee;
(2) For final consideration, a copy to each member of the house that is considering the bill. If the
member who introduced the bill or resolution or who requested the statement is not a member
of the house or rules committee considering the bill, the Ohio judicial conference shall send the
member a copy.
(C) In preparing a judicial impact statement the Ohio judicial conference may request any court,
department, division, institution, board, commission, authority, bureau, or other instrumentality
or officer of the state or of a county, municipal corporation, township, school district, or other
governmental entity of the state to provide any of the following information:
(1) An estimate, in dollars, of the amount by which the bill or resolution would increase or
decrease the revenues or expenditures received or made by the court, instrumentality, officer,
or entity;
(2) Any other information the Ohio judicial conference considers necessary for it to understand
or explain the fiscal, administrative, and procedural effects of the bill or resolution.
The Ohio judicial conference first shall contact the Ohio legislative budget office for
information regarding the fiscal effects of the bill or resolution. If the Ohio legislative budget
office does not have the fiscal information sought by the Ohio judicial conference, then the Ohio
judicial conference and the Ohio legislative budget office jointly may request any of the entities
described in division (C) of this section to provide the fiscal information.
A court, instrumentality, officer, or entity shall comply with a request for information as soon as
reasonably possible after receiving it. The Ohio judicial conference shall specify the manner of
compliance in its request and, if necessary, may specify a period of no longer than five days for
compliance. The Ohio judicial conference may consider any information provided under division
(C) of this section in preparing a judicial impact statement.
(D) The failure of the Ohio judicial conference to prepare a judicial impact statement before
a bill or resolution is taken up for consideration by the house of representatives or senate
committee, or by either or both houses for final consideration, shall not impair the validity of
any bill or resolution passed by either or both houses of the general assembly.
(E) This section does not affect the duty of the Ohio legislative budget office to prepare fiscal
analyses pursuant to section 103.14 of the Revised Code.
(F) As used in this section:
(1) With regard to a bill or resolution, "procedural effects" includes all court-related procedures,
including pretrial, trial, and post-trial proceedings.
(2) With regard to a bill or resolution, "administrative effects" includes matters pertaining to the
business of the courts, including clerical processes, records management, planning and research,
changes in court personnel, calendar management, facilities and equipment, workload
distribution, court reorganization, and the creation or addition of judgeships.
Effective Date: 10-06-1994
Related Legislative Provision: See 129th General Assembly File No.39, SB 171, §4
The Ohio Revised Code is clear in its intent and in showing under what conditions the judges of the state
are allowed to comment on proposed legislation or resolutions. They must show that a proposal will
increase or decrease the workload for the courts and costs the courts money by doing so. They must
also show by asking the budget office to analyze the cost of the proposal on the courts. The third
element is the proof that these proposals would make changes to procedures or the administration of
the courts.
What the judges are not permitted to comment on is changes to the law that affect the State’s overall
policies or the court's use of items such as evidentiary standards that they are to use. Those are set by
the Legislative Branch of the state in the manner in which the law is written. Procedures for the handling
of cases are well defined which the Rules of Civil Procedure that the Courts have the authority to define,
albeit with input from the judges, attorneys, and the public of the state.
(C) of this section in preparing a judicial impact statement.
(D) The failure of the Ohio judicial conference to prepare a judicial impact statement before
a bill or resolution is taken up for consideration by the house of representatives or senate
committee, or by either or both houses for final consideration, shall not impair the validity of
any bill or resolution passed by either or both houses of the general assembly.
(E) This section does not affect the duty of the Ohio legislative budget office to prepare fiscal
analyses pursuant to section 103.14 of the Revised Code.
(F) As used in this section:
(1) With regard to a bill or resolution, "procedural effects" includes all court-related procedures,
including pretrial, trial, and post-trial proceedings.
(2) With regard to a bill or resolution, "administrative effects" includes matters pertaining to the
business of the courts, including clerical processes, records management, planning and research,
changes in court personnel, calendar management, facilities and equipment, workload
distribution, court reorganization, and the creation or addition of judgeships.
Effective Date: 10-06-1994
Related Legislative Provision: See 129th General Assembly File No.39, SB 171, §4
The Ohio Revised Code is clear in its intent and in showing under what conditions the judges of the state
are allowed to comment on proposed legislation or resolutions. They must show that a proposal will
increase or decrease the workload for the courts and costs the courts money by doing so. They must
also show by asking the budget office to analyze the cost of the proposal on the courts. The third
element is the proof that these proposals would make changes to procedures or the administration of
the courts.
What the judges are not permitted to comment on is changes to the law that affect the State’s overall
policies or the court's use of items such as evidentiary standards that they are to use. Those are set by
the Legislative Branch of the state in the manner in which the law is written. Procedures for the handling
of cases are well defined which the Rules of Civil Procedure that the Courts have the authority to define,
albeit with input from the judges, attorneys, and the public of the state.
To provide a bit of a history of comments on past family law bills, the judges have always complained of
a loss of discretion. Discretion or the use of preponderance standard of review is not an administrative
process; it is a function of law that is determined by the Legislative Branch.
In past bills where they have asked for a financial analyst of these changes, the budget has come back
with a showing of no additional cost. That analysis was asked for on GA 125th HB232, GA 126th HB688
but never asked for with either GA 129th SB144 or HB253 even though the judges opposed the latter two
bills partially on claims of increased costs to the courts.
To expand upon and explain this claim that the courts would lose their “discretion”, we need to look at
the standard of review currently in use. Currently, the courts use a preponderance of evidence standard
in making determinations of custody. This allows for the use of extremely broad use of and personal
interpretation of the evidence presented rather than the use of clear of convincing evidenceii that the
United States Supreme Court stated within Santosky v Krameriii was the only acceptable standard of
review for the courts to show that there exists a compelling state’s interest to interfere with a parent’s
legal rights. Any time that a Court decides terms under which a parent may or may not see their child
there must be a clear show as to why the rights of that parent should be changed to protect the child.
The mere dissolution of a personal relationship thru a divorce is not sufficient to cause to interfere with
the rights of a parent. If it were, then every child of every divorcing couple would have to be taken into
the care of the state for protection.
Legal definitions of both follow:
preponderance of the evidence
n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or
judge without a jury) to decide in favor of one side or the other. This preponderance is based on the
more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus,
one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses
with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation
about what the parties intended. Preponderance of the evidence is required in a civil case and is
contrasted with "beyond a reasonable doubt," which is the more severe test of evidence required to
convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is
somewhat subjective.
a loss of discretion. Discretion or the use of preponderance standard of review is not an administrative
process; it is a function of law that is determined by the Legislative Branch.
In past bills where they have asked for a financial analyst of these changes, the budget has come back
with a showing of no additional cost. That analysis was asked for on GA 125th HB232, GA 126th HB688
but never asked for with either GA 129th SB144 or HB253 even though the judges opposed the latter two
bills partially on claims of increased costs to the courts.
To expand upon and explain this claim that the courts would lose their “discretion”, we need to look at
the standard of review currently in use. Currently, the courts use a preponderance of evidence standard
in making determinations of custody. This allows for the use of extremely broad use of and personal
interpretation of the evidence presented rather than the use of clear of convincing evidenceii that the
United States Supreme Court stated within Santosky v Krameriii was the only acceptable standard of
review for the courts to show that there exists a compelling state’s interest to interfere with a parent’s
legal rights. Any time that a Court decides terms under which a parent may or may not see their child
there must be a clear show as to why the rights of that parent should be changed to protect the child.
The mere dissolution of a personal relationship thru a divorce is not sufficient to cause to interfere with
the rights of a parent. If it were, then every child of every divorcing couple would have to be taken into
the care of the state for protection.
Legal definitions of both follow:
preponderance of the evidence
n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or
judge without a jury) to decide in favor of one side or the other. This preponderance is based on the
more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus,
one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses
with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation
about what the parties intended. Preponderance of the evidence is required in a civil case and is
contrasted with "beyond a reasonable doubt," which is the more severe test of evidence required to
convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is
somewhat subjective.
clear and convincing evidenceiv
n. evidence that proves a matter by the "preponderance of evidence" required in civil cases and beyond
the "reasonable doubt" needed to convict in a criminal case.
One needs to question why a court or its officers would not want to be held to the highest standards
and quality of work when it comes to making a determination of custody. Making this claim also steps
far outside of the bounds of what they are permitted to comment on as stated under the Ohio Revised
Code.
Ohio Code of Judicial Conduct
The third element is what the Judicial Cannons or Code of Conduct have to say in respect to how and
under what circumstances a judge may comment on the law.
RULE 3.2 Appearances before Governmental Bodies and Consultation with Government
Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an
executive or a legislative body or official, except as follows:
(A) In connection with matters concerning the law, the legal system, or the administration of
justice;
(B)In connection with matters about which the judge acquired knowledge or expertise in the
course of the judge’s judicial duties;
(C) When the judge is acting pro se in a matter involving the judge’s legal or economic interests,
or when the judge is acting in a fiduciary capacity
Every time there have been bills introduced that concerns family law, or whether it changes to the way
we view and award custody or alimony reforms (GA 129 HB348), the judges have asked for and been
allowed meetings with representatives or senators to discuss these changes. Based on their code of
conduct, these meetings are in direct violation of permissible behavior for the judiciary of Ohio. They
have not appeared or been summed to testify under the power of subpoena as would be indicated by
the own Code of Conduct. I will verify that I have been at one House Public Testimony Hearing where
Judge Richard Stuckeyv who at that time was sitting on the bench in Stark County, testified against
HB232. The judges did ask for a meeting with us to discuss the “problems” within HB232 but when told
n. evidence that proves a matter by the "preponderance of evidence" required in civil cases and beyond
the "reasonable doubt" needed to convict in a criminal case.
One needs to question why a court or its officers would not want to be held to the highest standards
and quality of work when it comes to making a determination of custody. Making this claim also steps
far outside of the bounds of what they are permitted to comment on as stated under the Ohio Revised
Code.
Ohio Code of Judicial Conduct
The third element is what the Judicial Cannons or Code of Conduct have to say in respect to how and
under what circumstances a judge may comment on the law.
RULE 3.2 Appearances before Governmental Bodies and Consultation with Government
Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an
executive or a legislative body or official, except as follows:
(A) In connection with matters concerning the law, the legal system, or the administration of
justice;
(B)In connection with matters about which the judge acquired knowledge or expertise in the
course of the judge’s judicial duties;
(C) When the judge is acting pro se in a matter involving the judge’s legal or economic interests,
or when the judge is acting in a fiduciary capacity
Every time there have been bills introduced that concerns family law, or whether it changes to the way
we view and award custody or alimony reforms (GA 129 HB348), the judges have asked for and been
allowed meetings with representatives or senators to discuss these changes. Based on their code of
conduct, these meetings are in direct violation of permissible behavior for the judiciary of Ohio. They
have not appeared or been summed to testify under the power of subpoena as would be indicated by
the own Code of Conduct. I will verify that I have been at one House Public Testimony Hearing where
Judge Richard Stuckeyv who at that time was sitting on the bench in Stark County, testified against
HB232. The judges did ask for a meeting with us to discuss the “problems” within HB232 but when told
that we were willing to meet, they never stated the time or place for that meeting to take place when
we accepted their offer. The second was a stakeholder’s meeting held at the request of Senator LaRose
where a judge gave his opposition to SB144. I cannot verify but was told that the judges also were
granted a meeting with Representative Pelanda on her alimony reform bill, HB348. I have to wonder
how many other meetings have taken place contrary to what the Judicial Code of Conduct states that
the judges may do.
The Tie Together
To tie this all together for ease of understanding, Separation of Powers intention is to keep the branches
of government from interfering with the function and authority of the coexisting other branches of
government, it is in short, a checks and balances principle with the intent to keep all from having too
much power over the citizens that they represent. The Ohio Revised Code places specific requirements
on what, how, and what must be shown for the judges to comment on a proposed bill or resolution that
is being considered by the Legislative Branch which is responsible for creating policies and laws that
govern the state. The final is the restrictions and under what terms a judge comments on law outside of
deciding on a “case of controversy” that is brought before the Court.
If the State of Ohio is to move forward with long-needed updates to the policies that address the
families of Ohio this must stop today. These reforms have been called for twice in the past in written
reports with the Task Force on Family Law in 2001vi and again with the Ohio Father Commission’s report
to incoming Governor Strickland in 2007vii. The introduction by the General Assembly of four previous
bills speaks volumes in itself of the need for rethinking these policies now and that these laws be
updated to meet the needs of current society and its problems. That will not take place until the General
Assembly tells the judges of the state to return to their area and stay out of the legislative process.
As an appendix to this report, I will include the Judicial Impact statement from GA 125th HB232 and for
GA 129th SB144 that clearly show that the judiciary has stepped over the limited bounds on commenting
on the proposed changes to Ohio’s Shared Parenting law. While in each of their comments on these bills
the Judiciary has complained of what they claim is a loss of confidence in the judiciary, it is this insertion
into the legislative process which is why many have lost confidence in the judiciary. Those that have
gone thru the process of the family courts of Ohio have very much lost confidence in them and in the
willingness of the courts to reduce the involvement of a parent for no other reason except that the
we accepted their offer. The second was a stakeholder’s meeting held at the request of Senator LaRose
where a judge gave his opposition to SB144. I cannot verify but was told that the judges also were
granted a meeting with Representative Pelanda on her alimony reform bill, HB348. I have to wonder
how many other meetings have taken place contrary to what the Judicial Code of Conduct states that
the judges may do.
The Tie Together
To tie this all together for ease of understanding, Separation of Powers intention is to keep the branches
of government from interfering with the function and authority of the coexisting other branches of
government, it is in short, a checks and balances principle with the intent to keep all from having too
much power over the citizens that they represent. The Ohio Revised Code places specific requirements
on what, how, and what must be shown for the judges to comment on a proposed bill or resolution that
is being considered by the Legislative Branch which is responsible for creating policies and laws that
govern the state. The final is the restrictions and under what terms a judge comments on law outside of
deciding on a “case of controversy” that is brought before the Court.
If the State of Ohio is to move forward with long-needed updates to the policies that address the
families of Ohio this must stop today. These reforms have been called for twice in the past in written
reports with the Task Force on Family Law in 2001vi and again with the Ohio Father Commission’s report
to incoming Governor Strickland in 2007vii. The introduction by the General Assembly of four previous
bills speaks volumes in itself of the need for rethinking these policies now and that these laws be
updated to meet the needs of current society and its problems. That will not take place until the General
Assembly tells the judges of the state to return to their area and stay out of the legislative process.
As an appendix to this report, I will include the Judicial Impact statement from GA 125th HB232 and for
GA 129th SB144 that clearly show that the judiciary has stepped over the limited bounds on commenting
on the proposed changes to Ohio’s Shared Parenting law. While in each of their comments on these bills
the Judiciary has complained of what they claim is a loss of confidence in the judiciary, it is this insertion
into the legislative process which is why many have lost confidence in the judiciary. Those that have
gone thru the process of the family courts of Ohio have very much lost confidence in them and in the
willingness of the courts to reduce the involvement of a parent for no other reason except that the
parents can’t get along or have chosen to dissolve a personal relationship. Add to this the slowness and
expense of what should be a relatively simple legal process taking years to complete while draining bank
accounts and the college funds of children, confidence is not all that has been lost by many. For those of
us that have been working on these reforms, our confidence is lost in the numerous smoke screen
defenses that have been put forth in the Judicial Impact Statements that are clear misinterpretations of
the bills that they have chosen to comment on. These are done to make it appear that they are doing a
proper job for the State of Ohio when they have failed all. Confidence has been lost because of
inconsistencies in the decision making of the judges of this state in the cases before them. Two cases
with the same circumstances more than not produce differing results all because of the broad
discretionary powers that exist in an area of law that lacks two major factors that the judges need to
assist and guild them in their decisions.
It is time to tell the judges of the state to respect the families of the state, the legislators of the state,
and the Constitution of the state, and return to what they were elected to do; decide cases of
controversy, not legislate.
Ray. R. Lautenschlager
Legislative Director
Ohio Family Rights
440-281-5478
akron@ohiofamilyrights.com
www.ohiofamilyrights.com
i Frankly, we should be encouraging a decrease in the workloads on the Courts. Within the family court system of
Ohio, several courts have taken to task for the slow movement of cases in various counties. This has been done in
both the media and by the Ohio Supreme Court.
ii http://www.ohiofamilyrights.com/Reports/White-Papers/Clear-and-Convincing-vs-Prepon/clear-and-convincing-
vs-preponderance-.html
iii Santosky v. Kramer, 455 US 745 - Supreme Court 1982
iv Clear and convincing is the civil court’s equivalent of beyond a shadow of doubt.
v Now retired and currently a visiting judge and serving on divorce and custody cases
vi http://www.ohiofamilyrights.com/Reports/Special-Reports-Page-3/Ohio-Task-Force-on-Family-Law-and-
Children.pdf
vii http://www.ohiofamilyrights.com/Reports/Special-Reports-Page-1/2007_Final_Report_-
_Ohio_Commission_on_Fatherhood_Transition_Committee.pdf
expense of what should be a relatively simple legal process taking years to complete while draining bank
accounts and the college funds of children, confidence is not all that has been lost by many. For those of
us that have been working on these reforms, our confidence is lost in the numerous smoke screen
defenses that have been put forth in the Judicial Impact Statements that are clear misinterpretations of
the bills that they have chosen to comment on. These are done to make it appear that they are doing a
proper job for the State of Ohio when they have failed all. Confidence has been lost because of
inconsistencies in the decision making of the judges of this state in the cases before them. Two cases
with the same circumstances more than not produce differing results all because of the broad
discretionary powers that exist in an area of law that lacks two major factors that the judges need to
assist and guild them in their decisions.
It is time to tell the judges of the state to respect the families of the state, the legislators of the state,
and the Constitution of the state, and return to what they were elected to do; decide cases of
controversy, not legislate.
Ray. R. Lautenschlager
Legislative Director
Ohio Family Rights
440-281-5478
akron@ohiofamilyrights.com
www.ohiofamilyrights.com
i Frankly, we should be encouraging a decrease in the workloads on the Courts. Within the family court system of
Ohio, several courts have taken to task for the slow movement of cases in various counties. This has been done in
both the media and by the Ohio Supreme Court.
ii http://www.ohiofamilyrights.com/Reports/White-Papers/Clear-and-Convincing-vs-Prepon/clear-and-convincing-
vs-preponderance-.html
iii Santosky v. Kramer, 455 US 745 - Supreme Court 1982
iv Clear and convincing is the civil court’s equivalent of beyond a shadow of doubt.
v Now retired and currently a visiting judge and serving on divorce and custody cases
vi http://www.ohiofamilyrights.com/Reports/Special-Reports-Page-3/Ohio-Task-Force-on-Family-Law-and-
Children.pdf
vii http://www.ohiofamilyrights.com/Reports/Special-Reports-Page-1/2007_Final_Report_-
_Ohio_Commission_on_Fatherhood_Transition_Committee.pdf
Preponderance versa Clear and Convincing
The current evidentiary standard used by courts in determining custody awards in cases which
involve divorced and never married parents is preponderance. This standard means that to be
granted an advantage in having more custody of the child one need only sway the decision
maker by 51% or just slightly more over the other parent.
Through the years many have called for this evidentiary standard to be changed and for good
reason. Too many personal biases can enter the decision making1 of the trier of fact that easily
sway their final decision when making or awarding custody of a child. Decisions of this
importance that determine the future participation of both parents in the life of a child must be
taken and based upon the highest standards of law available, that standard is clear and
convincing evidence. While the Family Court system is a civil court and operates under the
terminology associated with other civil proceedings such as lawsuits, clear and convincing
evidence is the civil equivalent of beyond a shadow of doubt that is used in criminal cases. It is
the highest standard of review possible in a court of law.
In order to understand why this evidentiary standard needs to be changed we need to examine
the case law on parental rights. Throughout the years there have been a long series of the
United States Supreme Court decisions that have held that the right to be a parent is a
fundamental right2, which is one that is granted by God not one protected by the Constitution
1 The American BAR Association released the results of a survey that showed that the majority of the family court
judges still made their custody decisions as though “tender years doctrine” (thoughts that only a mother could
raise a child) was still in effect.
http://www.ohiofamilyrights.info/Newsletters/ohio_family_rights_judicial_survey_and_tender_years.htm
2 Meyer v. State of Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), Prince v.
Commonwealth of Massachusetts, 321 U.S. 158 (1944), Ginsberg v. New York, 390 U.S. 629 (1968), Wisconsin v.
Yoder, 406 U.S. 205 (1972), Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974), Moore v. East Cleveland,
431 U.S. 494 (1977), Smith v. Organization of Foster Families, 431 U.S. 816 (1977), Quilloin v. Walcott, 434 U.S. 246
(1978), Parham v. J. R., 442 U.S. 584 (1979), Santosky v. Kramer, 455 U.S. 745 (1982), Reno v. Flores, 507 U.S. 292
(1993), Washington v. Glucksburg, 521 U.S. 702 (1997), Troxel v. Granville, 530 U.S. 57 (2000)
The current evidentiary standard used by courts in determining custody awards in cases which
involve divorced and never married parents is preponderance. This standard means that to be
granted an advantage in having more custody of the child one need only sway the decision
maker by 51% or just slightly more over the other parent.
Through the years many have called for this evidentiary standard to be changed and for good
reason. Too many personal biases can enter the decision making1 of the trier of fact that easily
sway their final decision when making or awarding custody of a child. Decisions of this
importance that determine the future participation of both parents in the life of a child must be
taken and based upon the highest standards of law available, that standard is clear and
convincing evidence. While the Family Court system is a civil court and operates under the
terminology associated with other civil proceedings such as lawsuits, clear and convincing
evidence is the civil equivalent of beyond a shadow of doubt that is used in criminal cases. It is
the highest standard of review possible in a court of law.
In order to understand why this evidentiary standard needs to be changed we need to examine
the case law on parental rights. Throughout the years there have been a long series of the
United States Supreme Court decisions that have held that the right to be a parent is a
fundamental right2, which is one that is granted by God not one protected by the Constitution
1 The American BAR Association released the results of a survey that showed that the majority of the family court
judges still made their custody decisions as though “tender years doctrine” (thoughts that only a mother could
raise a child) was still in effect.
http://www.ohiofamilyrights.info/Newsletters/ohio_family_rights_judicial_survey_and_tender_years.htm
2 Meyer v. State of Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), Prince v.
Commonwealth of Massachusetts, 321 U.S. 158 (1944), Ginsberg v. New York, 390 U.S. 629 (1968), Wisconsin v.
Yoder, 406 U.S. 205 (1972), Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974), Moore v. East Cleveland,
431 U.S. 494 (1977), Smith v. Organization of Foster Families, 431 U.S. 816 (1977), Quilloin v. Walcott, 434 U.S. 246
(1978), Parham v. J. R., 442 U.S. 584 (1979), Santosky v. Kramer, 455 U.S. 745 (1982), Reno v. Flores, 507 U.S. 292
(1993), Washington v. Glucksburg, 521 U.S. 702 (1997), Troxel v. Granville, 530 U.S. 57 (2000)
or law. While the courts and the laws are instructing judges to make their decisions based on
"the best interest of the child"3, the laws themselves are lacking in a legal definition of the term
that is peppered throughout all custody law. Without a clear definition of what is the best
interest of the child, decisions are often made that remove fit parents from the lives of their
children every day.
In the Troxel v. Granville, 530 U.S. 57 (2000) decision the case of Parham v. J. R., 442 U.S. 584
(1979) was quoted. That quote really gives us the best guidance as to what is the best interest
of the child.
"[O]ur constitutional system long ago rejected any notion that a child is the mere
creature of the State and, on the contrary, asserted that parents generally have the
right, coupled with the high duty, to recognize and prepare [their children] for
additional obligations. . . . The law's concept of the family rests on a presumption that
parents possess what a child lacks in maturity, experience, and capacity for judgment
required for making life's difficult decisions. More important, historically it has
recognized that natural bonds of affection lead parents to act in the best interests of
their children." 4
In another US Supreme Court case, Santosky v. Kramer, 455 U.S. 745 (1982), the High Court
found that to terminate parental rights courts must use the clear and convincing evidentiary
standard. Santosky also recognized that the right to be a parent was a fundamental right and
terminate or interfere with such a fund fundamental right required that the highest possible
level of review be used. That level of review is clear and convincing evidence.
Today we hold that the Due Process Clause of the Fourteenth Amendment demands
more than this. Before a State may sever completely and irrevocably the rights of
parents in 748*748 their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.5
The fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State. Even when
blood relationships are strained, parents retain a vital interest in preventing the
irretrievable destruction of their family life. If anything, persons faced with forced
dissolution of their parental rights have a more critical need for procedural protections
than do those resisting state intervention into ongoing family affairs. When the State
3 Ohio Family Rights has conducted an extensive study of family law statutes for the 50 states and has yet to find a
single legal definition of best interests of the child in any of them. Yet on the converse we have found many states
that recognize that parenting is a fundamental right.
4 Parham v. J. R., 442 U.S. 584 (1979)
5 Santosky v. Kramer, 455 U.S. 745 (1982)
"the best interest of the child"3, the laws themselves are lacking in a legal definition of the term
that is peppered throughout all custody law. Without a clear definition of what is the best
interest of the child, decisions are often made that remove fit parents from the lives of their
children every day.
In the Troxel v. Granville, 530 U.S. 57 (2000) decision the case of Parham v. J. R., 442 U.S. 584
(1979) was quoted. That quote really gives us the best guidance as to what is the best interest
of the child.
"[O]ur constitutional system long ago rejected any notion that a child is the mere
creature of the State and, on the contrary, asserted that parents generally have the
right, coupled with the high duty, to recognize and prepare [their children] for
additional obligations. . . . The law's concept of the family rests on a presumption that
parents possess what a child lacks in maturity, experience, and capacity for judgment
required for making life's difficult decisions. More important, historically it has
recognized that natural bonds of affection lead parents to act in the best interests of
their children." 4
In another US Supreme Court case, Santosky v. Kramer, 455 U.S. 745 (1982), the High Court
found that to terminate parental rights courts must use the clear and convincing evidentiary
standard. Santosky also recognized that the right to be a parent was a fundamental right and
terminate or interfere with such a fund fundamental right required that the highest possible
level of review be used. That level of review is clear and convincing evidence.
Today we hold that the Due Process Clause of the Fourteenth Amendment demands
more than this. Before a State may sever completely and irrevocably the rights of
parents in 748*748 their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.5
The fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State. Even when
blood relationships are strained, parents retain a vital interest in preventing the
irretrievable destruction of their family life. If anything, persons faced with forced
dissolution of their parental rights have a more critical need for procedural protections
than do those resisting state intervention into ongoing family affairs. When the State
3 Ohio Family Rights has conducted an extensive study of family law statutes for the 50 states and has yet to find a
single legal definition of best interests of the child in any of them. Yet on the converse we have found many states
that recognize that parenting is a fundamental right.
4 Parham v. J. R., 442 U.S. 584 (1979)
5 Santosky v. Kramer, 455 U.S. 745 (1982)
moves to 754*754 destroy weakened familial bonds, it must provide the parents with
fundamentally fair procedures6
In re Hayes which came before the Ohio Supreme Court, the court made note that to terminate
a parents rights was the equivalent of the death penalty of a family.
It is well recognized that the right to raise a child is an "essential" and "basic" civil right.
In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171, quoting Stanley v.
Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558. Furthermore,
a parent's right to the custody of his or her child has been deemed "paramount." In re
Perales (1977), 52 Ohio St.2d 89, 97, 6 O.O.3d 293, 297, 369 N.E.2d 1047, 1051-1052.
Permanent termination of parental rights has been described as "the family law
equivalent of the death penalty in a criminal case." In re Smith (1991), 77 Ohio App.3d 1,
16, 601 N.E.2d 45, 54. Therefore, parents "must be afforded every procedural and
substantive protection the law allows." Id. With this in mind, we turn to the construction
of former R.C. 2151.413(A).7
That statement alone highly suggests that the courts need the extra guidance that clear and
convincing evidence provides when making determinations in regards to the custody of the
child. Any limitation or restriction on the involvement of the parent In the life of their child is an
encroachment upon a fundamental right. Based on all case law, for the state to take such action
as to limit or restrict the involvement of a parent in the life of their child there must be a
compelling interest by this state. Such compelling interest would be incidences where a parent
is proven to be unfit to be involved with the child. Limitations or restrictions cannot, or should
they ever be, taken lightly when done by the state. While it is the goal of every state to protect
the vulnerable, these intrusions must be taken with an un-jaundiced eye. The only way for the
courts to have an un-jaundiced eye is to consider all custody decisions by using the highest
standard of review possible, clear and convincing evidence.
At present, the use of preponderance as an evidentiary standard has created a situation that
can only be equated to walking into an unknown families home, that is one which you have no
interest or no knowledge of, and telling them how, where and when every aspect of that
families involvement with their own children is going to take place. Common sense tells us that
as individuals we are not about to walk into an unknown neighbor's home and begin to tell
them how to raise their family, nor should any court or judge ever be permitted to do the same
6 Santosky v. Kramer, 455 U.S. 745 (1982)
7 IN RE HAYES. 79 Ohio St.3d 46 (1997)
fundamentally fair procedures6
In re Hayes which came before the Ohio Supreme Court, the court made note that to terminate
a parents rights was the equivalent of the death penalty of a family.
It is well recognized that the right to raise a child is an "essential" and "basic" civil right.
In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171, quoting Stanley v.
Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558. Furthermore,
a parent's right to the custody of his or her child has been deemed "paramount." In re
Perales (1977), 52 Ohio St.2d 89, 97, 6 O.O.3d 293, 297, 369 N.E.2d 1047, 1051-1052.
Permanent termination of parental rights has been described as "the family law
equivalent of the death penalty in a criminal case." In re Smith (1991), 77 Ohio App.3d 1,
16, 601 N.E.2d 45, 54. Therefore, parents "must be afforded every procedural and
substantive protection the law allows." Id. With this in mind, we turn to the construction
of former R.C. 2151.413(A).7
That statement alone highly suggests that the courts need the extra guidance that clear and
convincing evidence provides when making determinations in regards to the custody of the
child. Any limitation or restriction on the involvement of the parent In the life of their child is an
encroachment upon a fundamental right. Based on all case law, for the state to take such action
as to limit or restrict the involvement of a parent in the life of their child there must be a
compelling interest by this state. Such compelling interest would be incidences where a parent
is proven to be unfit to be involved with the child. Limitations or restrictions cannot, or should
they ever be, taken lightly when done by the state. While it is the goal of every state to protect
the vulnerable, these intrusions must be taken with an un-jaundiced eye. The only way for the
courts to have an un-jaundiced eye is to consider all custody decisions by using the highest
standard of review possible, clear and convincing evidence.
At present, the use of preponderance as an evidentiary standard has created a situation that
can only be equated to walking into an unknown families home, that is one which you have no
interest or no knowledge of, and telling them how, where and when every aspect of that
families involvement with their own children is going to take place. Common sense tells us that
as individuals we are not about to walk into an unknown neighbor's home and begin to tell
them how to raise their family, nor should any court or judge ever be permitted to do the same
6 Santosky v. Kramer, 455 U.S. 745 (1982)
7 IN RE HAYES. 79 Ohio St.3d 46 (1997)
without having full knowledge of that family. Again the only way to achieve that is by using the
clear and convincing evidentiary standard.
Looking at the statistics, including the fact that 85% of all custodial parents are mother8, one
begins to see the scope of the failure to protect future society that the use of preponderance
standard has created. If we are to begin the corrections to righting the wrongs of the past that
have been created by poor family policies of the states that beginning must take place and start
with of the review standard that we use for determining custody between two fit parents.
When the courts of this country have told us that the rights to be a parent in a fundamental
rights and the termination is the equivalent of the death sentence, even the common sense of a
layman says that we have looked and approached the decision making improperly for too long.
Ray R. Lautenschlager
President/National Legislative Director
Ohio Family Rights
www.ohiofamilyrights.com
president@ohiofamilyrights.com
8 US Census Bureau
clear and convincing evidentiary standard.
Looking at the statistics, including the fact that 85% of all custodial parents are mother8, one
begins to see the scope of the failure to protect future society that the use of preponderance
standard has created. If we are to begin the corrections to righting the wrongs of the past that
have been created by poor family policies of the states that beginning must take place and start
with of the review standard that we use for determining custody between two fit parents.
When the courts of this country have told us that the rights to be a parent in a fundamental
rights and the termination is the equivalent of the death sentence, even the common sense of a
layman says that we have looked and approached the decision making improperly for too long.
Ray R. Lautenschlager
President/National Legislative Director
Ohio Family Rights
www.ohiofamilyrights.com
president@ohiofamilyrights.com
8 US Census Bureau