Ohio courts do not decide “custody” in the way television does. The court allocates parental rights and responsibilities for the care of the children—and it has two structures to choose from: primarily to one parent, or to both parents under an approved shared parenting plan.
What the Court Is Actually Allocating
In any divorce, legal separation, or annulment proceeding—and in any proceeding about the allocation of parental rights and responsibilities—R.C. 3109.04(A) directs the court to “allocate the parental rights and responsibilities for the care of the minor children of the marriage.” That allocation covers both the day-to-day physical care of the children and the legal authority to make decisions for them.
Structure One: One Residential Parent and Legal Custodian
Under R.C. 3109.04(A)(1), the court may allocate parental rights and responsibilities primarily to one parent, designate that parent as the residential parent and the legal custodian, and divide the other rights and responsibilities between the parents—including, specifically, the right of the parent who is not the residential parent to have continuing contact with the children.
That is what people usually mean by “sole custody.” It does not remove the other parent from the case: parenting time and child support are decided in the same decree, and in a manner consistent with the best interest of the children.
Structure Two: Shared Parenting Under an Approved Plan
Under R.C. 3109.04(A)(2), if a parent files a pleading or motion under division (G) and a plan for shared parenting, and the court finds that a plan for shared parenting is in the best interest of the children and approves it, the court may allocate parental rights and responsibilities to both parents and issue a shared parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the children, in accordance with the approved plan.
Two practical consequences follow. First, shared parenting is not automatic: a plan has to be filed and approved, and the court has to find it serves the children’s best interest. Second, the statute says the court shall not give preference to a parent because of that parent’s financial status or condition (division (F)(3)).
How a Shared Parenting Case Starts
R.C. 3109.04(G) allows either parent, or both parents, to file a pleading or motion asking the court to grant both parents shared parental rights and responsibilities. A parent who files that request must also file a plan for the exercise of shared parenting by both parents. If the court interviews a child under division (B), then under (B)(2)(a) the court may—and on the motion of either parent shall—appoint a guardian ad litem for the child.
The Best-Interest Factors
Whatever structure is at issue, R.C. 3109.04(B)(1) requires the court to take into account that which would be in the best interest of the children. Division (F)(1) lists the factors the court must consider, including:
- the wishes of the child’s parents regarding the child’s care;
- the wishes and concerns of the child, if the court interviewed the child in chambers;
- the child’s interaction and interrelationship with the parents, siblings, and anyone else who may significantly affect the child’s best interest;
- the child’s adjustment to home, school, and community;
- the mental and physical health of all persons involved;
- which parent is more likely to honor and facilitate court-approved parenting time or visitation and companionship rights;
- whether either parent has failed to make required child support payments, including arrears;
- whether either parent (or a household member) has been convicted of or pleaded guilty to a child-abuse or child-neglect offense, or to a violation of R.C. 2919.25 or a sexually oriented offense involving a family or household member;
- whether the residential parent, or a parent under a shared parenting decree, has continuously and willfully denied the other parent’s court-ordered parenting time; and
- whether either parent has established, or plans to establish, a residence outside Ohio.
The Extra Factors for Shared Parenting
When the specific question is whether shared parenting is in the best interest of the children, R.C. 3109.04(F)(2) requires the court to consider the (F)(1) factors, the deviation factors in R.C. 3119.23, and these additional factors:
- the ability of the parents to cooperate and make decisions jointly with respect to the children;
- the ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
- any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
- the geographic proximity of the parents to each other, as it relates to the practical considerations of shared parenting; and
- the recommendation of the child’s guardian ad litem, if the child has one.
The first two factors are why shared parenting often turns on how the parents communicate and whether each is willing to support the children’s relationship with the other parent—not simply on how much time each parent wants.
Parenting Time Under Either Structure
Where the court has not issued a shared parenting decree, R.C. 3109.051(A) requires the court to make a just and reasonable order permitting the parent who is not the residential parent to have parenting time with the child, unless the court determines that parenting time would not be in the child’s best interest—in which case it must include its findings of fact and conclusions of law in the journal. Whenever possible, the order is to ensure both parents the opportunity for frequent and continuing contact with the child, and the final decree must include a specific schedule of parenting time.
Child Support Follows the Allocation
Child support is calculated separately from the allocation of parental rights and responsibilities. For a shared parenting order, R.C. 3109.04(A)(2) provides that the parents’ child support obligations are determined under Chapters 3119., 3121., 3123., and 3125. of the Revised Code. For how the guidelines work, see How Is Child Support Calculated in Ohio?
Can the Allocation Be Changed Later?
R.C. 3109.04(E)(1)(a) sets a real threshold. The court shall not modify a prior decree allocating parental rights and responsibilities unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time, that a change has occurred in the circumstances of the child, the child’s residential parent, or either parent subject to a shared parenting decree—and that the modification is necessary to serve the best interest of the child. The court retains the residential parent designated by the prior decree unless a modification is in the best interest of the child and one of the following applies:
- the residential parent agrees to the change (or, under a shared parenting decree, both parents agree to a change in the designation of residential parent);
- the child, with the consent of the residential parent (or both parents under a shared parenting decree), has been integrated into the family of the person seeking to become the residential parent; or
- the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
There is also a path in the other direction. Under R.C. 3109.04(E)(1)(b), one or both parents under a decree that is not a shared parenting decree may file a motion asking that it be modified to give both parents shared rights and responsibilities; the motion must include both the request for modification and a request for a shared parenting order that complies with division (G).
Which Structure Fits Your Family?
The answer is fact-specific, and the court’s decision is built from the factors above as applied to your children. What is worth knowing before a case begins is that the structure is not chosen by either parent unilaterally: the framework is statutory, the plan matters, and the standard at every step is the best interest of the child.
More on this area: Child Custody & Support, How Is Child Custody Decided in Ohio?, Who Gets the House in a Divorce in Ohio? and the Family Law FAQ.