Cincinnati Family Law & Divorce Blog: Do Non-Parents Have Any Custody Rights in Ohio Courts?

It is becoming increasingly common for grandparents and other non-parents to seek custody of children. A number of factors could contribute to this including the rise in substance use, domestic abuse, a parent passing away, etc. Some questions from a grandparent or non-parent might be: Can I obtain custody or any other rights? What are the legal standards involved?

First, it is important to note that custody and visitation are two separate concepts. Legal custody means that the adult has physical care and control of the child as well as the right to make decisions regarding the child’s health, education, welfare, and other major decisions. If someone has “visitation rights” or “companionship rights” with a child, this refers to certain days and times the adult has with the child.

Parents are afforded a constitutionally protected due process right to the care and custody of their children. The U.S. Supreme Court has held that parents who are suitable persons have a paramount right to the custody of their children. In order to obtain custody, a non-parent must prove that the natural parent is unsuitable. Unsuitability is determined on a case by case basis. It is not enough if a non-parent simply disagrees with the way the parent is raising the child or even if non-parent has a better home situation than the parent. The non-parent must show that it would be detrimental for a parent to have custody of the child. For example, if a non-parent can show that a parent has a pervasive and consistent issue with drugs, alcohol, abuse, or some other issue, the chances of a court granting custody to a non-parent become greater. A non-parent can also obtain custody if the natural parent signs a binding agreement granting the non-parent custody. However, it is important to note that an award of custody is never permanent, and is always subject to modification by the court. Lastly, if a child is deemed abused, neglected, or dependent by the court, a different set of laws apply in which case parenting rights can be taken away from parents by the state and the court can place a child with an appropriate family member.

Even if a non-parent cannot obtain custody of a child by one of the above methods, Ohio law allows a non-parent to seek companionship or visitation rights in certain instances. These actions are brought either in the Juvenile Court or Domestic Relations Court, depending on whether the parents were married. If the parents were unmarried at the time the child was born, grandparents and relatives may seek companionship rights (See O.R.C. 3109.12). A non-parent may also seek companionship rights in a proceeding for divorce, dissolution of marriage, legal separation, annulment, or child support case (See O.R.C. 3109.051). If a parent has died, a court can grant the parents or relatives of the deceased parent companionship or visitation rights (O.R.C. 3109.11). In any of these instances, the court must determine whether it would be in the best interest of the child to award companionship time to a non-parent. The Ohio statue lists a number of factors the court must consider including: the natural parent’s wishes, the child and parent’s available time, the child’s adjustment, prior interaction with parents and other relatives, the wishes of the child if the court has interviewed the child, as well as several other factors. Although the court may give special weight to the wishes of the parents (See Harrold v. Collier), this is just one factor among many in determining the child’s best interest. Talking with a local family law attorney can help you determine which factors are strongest for your case.