Judicial Impact Statement HB232

Ohio and made recommendations for improvements. The Task Force of twenty-four individuals worked over two years and produced a report of their findings and recommendations. That Task Force concluded, among other things, that:

“establishing and maintaining a parent child relationship is of fundamental importance to the welfare of a child. Therefore, the relationship between a child and both parents should be fostered unless inconsistent with the child’s best interest. Further, any legal process that allocates parenting functions and responsibilities should be guided by each child’s best interests.”

This recommendation was endorsed unanimously by the Ohio Judicial Conference committees that evaluated the Task Force report.

The Task Force concludes that in order to achieve this goal, “courts should continue to be guided by the best interest standard.” House Bill 232 of the 125th General Assembly presumably recognizes the importance of fostering a relationship between a child and both parents. Nonetheless, House Bill 232, by imposing a “harmless” standard, in effect eliminates the best interest standard and judicial discretion.

Description of HB 232 and comparisons with current law:

House Bill 232 would impose a presumption of equally shared parenting on child custody decisions and have an impact on domestic relations and juvenile courts. The bill will change current law in at least the following ways:

1. HB 232 adds a legal presumption in favor of equal parenting plans over other custody arrangements in all cases except where the parents agree to an alternative plan. Currently, judges evaluate parenting plans on a case-by-case basis and follow the “best interest of the child” standard. This presumption in favor of equal parenting time would shift the court’s focus away from children’s rights to parental rights.

2. HB 232 requires judges to order equal parenting time in all custody cases and permits exceptions only when it is “clear and convincing” that the child would be harmed This “harmful” standard would preempt the “best interest of the child” standard in existing law. The “clear and convincing” standard is typically applied to evidence used to prove contempt or to terminate parental rights. It has not previously been used to resolve disputes between two parents, and it seems inappropriate to apply it to such disputes.

3. HB 232 authorizes a new “family access motion” that can be filed with the court. This motion could be filed when a party believes that visitation or other custody related court orders have been violated. It is not clear how this motion differs from a contempt motion available under current law.

Judicial Impact of the “harmful” standard:

House Bill 232 would drastically change how courts allocate parental responsibilities under current law, Ohio’s domestic relations and juvenile court judges make custody decisions and allocate parenting time based on what is in the best interest of the child. House Bill 232 proposes to replace this “best interest of the child” standard with a dramatically new “harmful” standard. Instead of requiring judges to determine each individual case by evaluating the specific family situation and weighing the best interest of the child within that context, House Bill 232 would impose a presumption in favor of a “substantially equal” parenting time in all families. To depart from this presumption, the court would have to find “by clear and convincing evidence that substantial equality would be harmful to the children.”

There are numerous instances when an equal parenting time plan would not be in the best interest of the child, and yet it would not necessarily be harmful to the child. An example might be when the divorcing parents live in different school districts and it would be in the best interest of the child to attend one school during the school year. Under current law the judge may order that the child stay with one parent during the week arid reside with the other parent on the weekend. Under provisions of House Bill 232 the judge could only arrive at this unequal parenting arrangement if the parent requesting the unequal arrangement could prove with “clear and convincing” evidence that an equal parenting arrangement was “harmful” to the child.

Another practical effect is that any children with divorced parents who do not live within extremely close geographic proximity will be precluded from having the same friendships and peer relationships as other kids and will also be denied the opportunity to participate in extracurricular activities like drama, sports, band, and other activities This may or may not be “harm,” but would certainly negatively impact the quality of life for children and teenagers.

Current law, with its focus on the best interest of the child, permits judges to consider a variety of factors when deciding between parenting plans. The presumption of equality may, by shifting the focus from children’s rights to parental rights, require the judge to order a parenting plan that is not in the best interest of the child although not “clear and convincingly” harmful to the child.

House Bill 232 would increase litigation between divorcing couples as well as increase court workload and caseload By requiring the presumption of equal parenting, HB 232 may eliminate the need for judicial time spent weighing the best interest of children in each case. Moreover, the heavy burden of proving harm may discourage some people from con testing the presumption of equal parenting time. If these are consequences of HB 232, then there may be an overall decline in court workload and caseload. But judges believe that the changes in HB 232 will have the opposite effect and will actually increase litigation. They believe that the burden of proving the presumption of harm invites entrapment, as well as increasing the likelihood of false or misleading arguments. Moreover, judges believe that

HB 232 may increase both the difficulty and contentiousness of custody cases and thus in crease both judicial workload and caseload.

Judges believe that current law enables them to obtain compromises between contesting parents because the focus is on the best interest of the child. But if the presumption is for equal parenting, one parent may feel the need to carry the custody baffle to trial and try to prove harm arid to prove the other parent is unfit or unsuitable. This will lead to additional trials that have a strong likelihood of being contentious, long, and expensive. These trials will rely heavily on expert testimony because of the need to prove by “clear and convincing” evidence that the equal arrangement is harmful to the child. This means that judges will have to do far more weighing of expert testimony from psychologists and family therapists.

Judges anticipate that this will lead to greater workload (in terms of evaluating evidence, longer trials, and more writing of findings) for courts. Overall, it will also mean an increase in the number of cases that go to trial as opposed to some compromise being reached between the parties, thus court caseload will increase as well.

House Bill 232 would drastically limit judicial discretion and undermine the capacity of the court to protect the best interest of children of divorcing parents. This standard clearly eliminates judicial discretion to resolve disputes over conflicting parental preferences and undermines the capacity of judges to make decisions in the best interest of the child. In stead judges must allocate parenting time equally between the parents unless there is “clear and convincing” evidence that such an allocation would be actually harmful.

House Bill 232 would undermine public confidence in the courts. The increased contentiousness of parties as well as the costly nature of attorney fees and litigation expenses will contribute to a decline in public confidence in the courts and in the fair administration of justice.

House Bill 232 contains unclear or inappropriate standards and requirements

There are a number of aspects of HB 232 that require more precision and clarity.

• Concepts like “substantial equality” and “greater equality” must be more clearly defined if judges are to apply HB 232 to specific parenting plans.

• The “clear and convincing” standard is one that is appropriate for contempt or termination of parental rights, but HB 232 uses this standard to establish harm. It is inappropriate to use this standard when resolving a dispute between parents over the unequal allocation of time spent with their children.

• The “best interest of the child” and the “harmful” standards co-exist in this legislation. These standards will be difficult to reconcile under many circumstances, but will be particularly difficult in situations where the parents live long distances from each other

• The requirement that the clerk of courts provide advice may constitute the unauthorized practice of law.

• The 60 day time period for the final determination of parenting disputes is unrealistic and, if adopted, will result in further delays for other kinds of litigation.

• Reference (at lines 746-750) to Civil Rule 6 (D) may be in error. Civil Rule 6(D) does not require that a response be filed to a motion. Perhaps the bill confuses the process involving post decree motions with the process of responding to a complaint and summons in an original action (e.g., see Civil Rule 12).

Judicial Impact of the “family access motion”:

House Bill 232 authorizes individuals to file a “family access motion” whenever there is a violation of the court’s visitation order. Current law permits individuals to file a motion for contempt whenever there is a visitation or other violation of the court’s custody order. Judges recognize that the contempt remedy is difficult to obtain and may be too severe of a remedy under most circumstances. As a result, there may be a need for a legal tool to be de signed that can be used to remedy minor violations of a court’s visitation order. The “family access motion” is too similar to a contempt motion to qualify as an intermediary step.

Judges do not see why the “family access motion” is needed, or how it differs from a con tempt motion, or why an individual would file one motion rather than the other. They believe that the availability of two motions for the same purpose may encourage many individuals to file both motions. This duplication could result in a flood of additional hearings and court workload without any benefit whatsoever for the person seeking relief. It could make it more difficult for courts to respond to motions on a timely basis, have a negative effect on the administration-of justice, give the false impression that courts are not holding violators accountable for violations of court orders, and undermine public confidence in Ohio’s courts and judicial system.

Judges would support an intermediate tool for dealing with visitation disputes that do not rise to the level of justifying a contempt motion or proceeding Some counties already have alternative programs to divert contempt or to call parties into court to discuss non compliance issues and to facilitate compliance without contempt proceedings. Judges would welcome statutory provision for such intermediate tools.