The LASC Domestic team addresses all civil legal issues dealing with the family.
- Domestic violence and obtaining civil protection orders
- Child custody
- Child support
- Spousal support
Click on the topics below for more information:
The information on this page is NOT legal advice. If you are seeking representation or legal advice, please contact the LASC Intake Department at 614-241-2001 or complete an online application. An attorney client relationship does not exist between you and the Legal Aid Society of Columbus.
Child support is financial support for a minor child that is calculated and established by either a county Child Support Enforcement Agency (CSEA), or a court. Informal payments or tangible items, like diapers or groceries, are not considered child support for purposes of satisfying a child support order. Child support is different from spousal support, which is financial support for the maintenance of a former spouse as part of a proceeding that terminates a marriage.
The “obligor” is the parent who pays support. The “obligee” is the parent who receives support. Child support is calculated by the CSEA or a court using a mathematic formula referred to as Child Support Guidelines. This calculation is contained in a child support “worksheet,” which is required by CSEAs and courts when making a support order. In addition to a child support order, the CSEA or court will also calculate an additional “cash medical support” order. This is an additional payment to help defray costs for medical coverage when no private health insurance is being provided for the child.
Child support is established by either the county Child Support Enforcement Agency (CSEA) or court. When a parent caring for a child receives public assistance through Ohio Works First (OWF cash assistance), the CSEA will automatically take steps to establish a child support order. The parent who receives the assistance is required to cooperate with the CSEA in establishing a support order, with some exceptions for domestic violence situations.
A parent who does not receive public assistance can still obtain child support through the CSEA by completing an application for services. The CSEA can be helpful if the parent does not know where the obligor, typically a father, lives. The CSEA has parent locator services and other systems to determine where someone lives and works in order to establish a support order.
The courts can also establish a child support order. This can be initiated through a complaint to establish paternity and support, or as part of a custody or divorce proceeding. Courts also review child support orders established by the CSEA when either parent disagrees with how the CSEA calculated the support; the parent files objections to the order with CSEA or the court, and a hearing is scheduled with the court. R.C. 3119.22-3119.24
The CSEA and the court follow Child Support Guidelines, which are incorporated into the child support worksheet. While these calculations could be performed by hand, the CSEA, the court, and virtually all domestic and family law practitioners use specifically-designed child support software. Child support calculations take into account the parents’ or parties’ gross income.
Gross income can include income from employment, self-employment, worker’s compensation benefits, unemployment compensation, and certain disability payments, such as Social Security Disability (SSD).
Gross income does not include means-tested public assistance such as Ohio Works First (OWF) or Supplemental Security Income (SSI). Those programs are income-based, and are not included.
If either or both of the parents are not working, the CSEA or the court can still assign that individual income in the amount that the person could be earning. This is called “imputing” income, and is done when someone is voluntarily unemployed or voluntarily underemployed. Generally, a court will not impute income to a person if he or she is receiving means-tested public assistance (R.C. 3119.05(I)(1). In addition, income should not be imputed to someone who is unable to work through no fault of their own. This can happen when someone is unable to work because of disability or injury, but has not yet been approved for disability payments. Another example may be a parent who has to stay at home in order to care for a disabled child.
R.C. 3119.06 establishes a minimum support order of $50. However, no enforcement action should be taken if obligor is determined to be receiving means-tested public assistance.
Child support calculations will take into account additional information for both parents, including:(a) health insurance premium expenses for the children; (b) work-related or school-related day care expenses; (c) other biological children in the household; (d) other child support paid; and (e) other benefits received by or on behalf of the minor child (e.g. SSD derivative benefits).
When child support is calculated, the CSEA and the court also review health insurance coverage for the children. R.C. 3119.29 and 3119.30. If a parent is paying for private health insurance for a child, that parent will receive credit in the child support calculation for the health insurance premiums associated with covering the child (does not include amount of premium to cover parent or spouse). A parent will be required to obtain health insurance if available at a “reasonable cost.” Reasonable cost is defined as equal to, or less than, 5% of parent’s gross income.
When private insurance is not provided by either parent, a child support order will also include an additional “cash medical support” order. This is an additional payment to help defray costs for medical coverage when no private insurance is being provided.
A recipient of cash assistance through OWF, or medical coverage for a child through Medicaid, will likely not be able to receive both at the same time. When an individual receives public assistance, he or she agrees to “assign” any child support received to the State of Ohio. If receiving OWF, an obligee will not receive child support. If a child is receiving Medicaid, obligee will not receive the additional cash medical support. The State keeps these portions as reimbursement for benefits provided to the obligee. Child support is not affected by the receipt of food stamps as part of the Supplemental Nutrition Assistance Program (SNAP); one can receive child support and food stamps at the same time.
CSEA, generally, must strictly follow child support guidelines. The CSEA is designed to locate obligors, establish paternity, and run basic calculations. The CSEA is typically not the best place to present information on disability if either party is not receiving formal disability payments (SSI, SSD, worker’s compensation, etc.).
The court, however, is better equipped to review a wide range of evidence when determining whether a person should be “imputed” income. Most importantly, R.C. 3119.23 allows the court to make adjustments to the child support calculation contained in the child support worksheet. Whereas the CSEA has to follow the Guidelines formula in the worksheet, the court can take into account a variety of facts and circumstances and “deviate” or adjust the child support obligation. These circumstances include: (a) obligor’s parenting time with the children; (b) obligor’s travel expenses associated with exercising parenting time; (c) other child-related expenses; and (d) and any other factor it determines necessary.
Another important feature of a court’s calculation of child support is that the court can simultaneously address certain child-related tax issues. Pursuant to R.C. 3119.82, the court can decide which parent is able to claim the child as a dependent for tax filing purposes. This court does not address the Earned Income Tax Credit, which can only be claimed by the custodial parent, or person with whom child resides more than ½ of the year. Unlike the Court, the CSEA cannot address child-related tax issues.
Child support can be modified by either the CSEA or the court, but there are important differences about when the review can occur. In addition, child support cannot be modified retroactively; it can only be modified on a going forward basis. Through the CSEA, any child support order can automatically be reviewed every thirty-six (36) months. If someone wants the CSEA to review an order before thirty-six (36) months, that person will have to pass a two-part test. First, he or she will have to show that: (a) he/she was unemployed for longer than 30 days; (b) was disabled; (c) incarcerated; or (c) experienced a 30% reduction or increase in income lasting for more than 6 months. Second, he or she will have to show that there is 10% difference between the revised support order and the prior support orders.
The court is not bound by the same rules as the CSEA. The court can conduct a broader review that can occur anytime. A parent has more ability to produce testimony (e.g., experiencing disability, but not approved for SSI or SSD). If the previous order was based on a “deviation,” then the court would be the place to review the deviation (not the CSEA). In addition, there does not need to be a 10% difference in child support orders for the court to make a modification.
If an obligor does not comply with an order to pay child support, the obligor may be found in contempt, which may be punishable by fines or jail. Contempt can be initiated by CSEA or obligee, directly. An obligor is typically entitled to court-appointed counsel to defend against the contempt.
- County CSEAs:
- Franklin County Child Support Enforcement Agency
- 80 E. Fulton St., Columbus, 43215
- Madison County Child Support Enforcement Agency
- 200 Midway St., London, 43140.
- Franklin County Common Pleas
- Domestic Relations Division and Juvenile Branch CSEA Client Affairs Officers
- Last Name A-L: 525.4801; Last Name M-Z: 525-5211.
- Self-Represented Resource Center
- Franklin County Common Pleas Court, Domestic Relations Division and Juvenile Branch
- 373 S. High St., 4th Floor, Columbus, OH
Establishing a parent-child relationship, or paternity, is an important and necessary step for a father of a child to establish rights to a child, and for any other person to hold that father responsible for certain obligations toward the child. Typically, a court will only grant orders regarding custody or parenting time after paternity has been established. There are some exceptions in certain circumstances. R.C. 3109.043 allows for the court to enter temporary orders during the pendency of a case for parenting time or custody for a putative or potential father, when: (a) the child carries the father’s last name; (b) the father appears in birth records; or (c) there is a clear pattern of parent and child relationship.
Paternity can be established in multiple ways, and the method will depend on the relationship status of the parents. If the parents are married, paternity will be Presumed if child is born during the marriage. Therefore, a husband will be considered the father of a child born during the marriage unless “clear and convincing” evidence to the contrary (e.g. genetic testing). R.C. 3111.03(B).
For unmarried parents, paternity can be established in several ways. The primary way that unmarried parents establish paternity is by signing an Acknowledgment of Paternity. Both parents must sign this document, and it is typically signed in the hospital. The form can also be completed at a later time, and the form is available through the local health department or county Department of Job and Family Services. You can also check to see if paternity is established by contacting Ohio Central Paternity Registry.
Unmarried parents can also establish paternity through genetic testing. This may be able to be accomplished through the Child Support Enforcement Agency (CSEA). A request for genetic testing can also be made as part of a court case, where a parent files a complaint for paternity.
There are some limited ways for paternity to be changed. For unmarried parents, an Acknowledgment of Paternity can be rescinded within sixty (60) days, with some conditions. In addition, paternity may be rescinded within one (1) year for fraud, duress, or mistake. R.C. 3111.27 and R.C. 3111.28. One can also attempt to rescind paternity through court proceedings. R.C. 3119.961 and R.C. 3119.962 provide some additional, limited opportunities to rescind. Generally, the individual seeking rescission must not have known that he was not the father prior to acknowledging paternity.
While establishing paternity is a necessary first step for an unmarried father to obtain custody and parenting time, establishing paternity, by itself, does not automatically give an unmarried father parenting time rights. Unless agreed to by the parents, an unmarried father must obtain court orders to have enforceable parenting time rights.
One additional way that fathers can preserve their ability to establish paternity is through the Ohio Putative Father Registry. Potential or “putative” fathers must complete the required forms prior to child’s birth or within 15/30 days of the child’s birth. The form can be obtained at Department of Job and Family Services (DJFS)
Legal custody means the ability to make decisions on behalf of a minor child. This includes the right to make decisions related to school, medical care, and other aspects of the child’s social development. Ohio statutes refer to a court’s decision on these issues as the “allocation of parental rights and responsibilities.” When a court makes decisions regarding the allocation or division of these parental rights and responsibilities, the court applies a “best interest of the child” test, where it reviews a wide array of facts and circumstances regarding the child and the parents. In addition to designating a “residential parent and legal custodian,” a court also makes orders for parenting time for the “non-residential parent.” The court also uses the “best interest of the child” standard when establishing parenting time.
The answer depends on whether the parents of the child are unmarried or married.
1. Unmarried ParentsUnder R.C. 3109.042, an unmarried mother is the sole residential parent and legal custodian until a court issues an order that modifies this general rule. This means that an unmarried mother should not have to file or start a court case, because she already has the rights of a legal custodian by statute. Until there are court orders, the unmarried mother, as the residential parent and legal custodian, has the right to set the terms and conditions of the other parent’s parenting time. This generally places the burden on the unmarried father to initiate a court case in order to obtain legal custody or parenting time. Some unmarried mothers, however, have reported that law enforcement may not help them retrieve a child if the unmarried father is keeping the child against her wishes. Some law enforcement departments tell the unmarried mother that she must show “proof of custody” if she wants help in recovering the children. This is incorrect. If that happens, unmarried mothers should consider legal options and consult with an attorney before starting a custody case. Note: Establishing paternity and child support does NOT automatically give an unmarried father parenting time rights.
2. Married ParentsUnder R.C. 3109.03, married parents are both the legal custodians with equal rights until a court determines otherwise. This means that both parents can make decisions on behalf of the child. For example, as equal legal custodians, each parent has the same right to make decisions regarding the terms and conditions of the other parent’s parenting time. When married parents are separated, and there are no court orders yet, this can create confusion if the parents are trying to make different decisions on the same issues.
3. “What can I do?” vs. “What should I do?”When there are no court orders, the parent(s) that is the legal custodian still needs to ask the question: “what should I do with my rights?” Even if a parent is the residential parent and legal custodian, one should still make decisions that are in the “best interest of the child.” If the other parent eventually files a court case, the court will review whether the parent who was the custodian was appropriately exercising those responsibilities. In other words, just because one can make a particular decision as the legal custodian, does not automatically mean that that decision is the right one. The custodian needs to exercise discretion. The difference between “what can I do” and “what should I do” often arises regarding the decision to schedule informal parenting time (when no court orders are in place) with the other parent. The legal custodian can stop any parenting time; but that might not be what should happen. When making such decisions, the legal custodian should facilitate appropriate parenting time (see R.C. 3109.04(F)(1)(f)), but should also take into account any health and safety concerns for the child that might be associated with the parenting time. This may include domestic violence involving the child or the parent, or other issues concerning the child. The parent should make a reasonable decision based on the circumstances.
When a court makes a decision regarding the allocation of parental rights and responsibilities, the court first has to make a determination regarding the “best interest of the child.” In order to make this determination, a court reviews a variety of factors under R.C. 3109.04(F)(1). These include:
- Wishes of the parents;
- Wishes of the child (interviewed by the court);
- Child's interaction/interrelationship with parents, siblings, others;
- Child's adjustment to home, school and community;
- Mental and/or physical health of any or all parties involved;
- Parent more likely to honor and facilitate visitation;
- Whether a parent failed to make child support payments;
- Whether a parent has been found guilty of neglect/abuse of a minor child or has been found guilty of domestic violence against a family or household member of the family who is the subject of this action;
- Whether a parent has continuously and willfully denied visitation;
- Whether either parent is residing or planning to establish a residence out of State.
When allocating parental rights and responsibilities, the court will also make orders for parenting time that are in the “best interest of the child” under R.C. 3109.051. The court reviews many of the same factors it reviews when making a custody determination. Each court also has its own local rules that establish “model” or “standard” parenting schedules which may be used to develop parenting-time orders.
Under R.C. 3109.051(H)-(J), the non-residential parent is generally entitled to equal access to school records, medical records, day‑care and child care facilities and records, and all school or day‑care activities. In addition, a non-residential parent generally has the right to receive a notice of the residential parent’s intent to relocate or change residence pursuant to R.C. 3109.051(G).
However, the court can restrict any of these rights if it finds that it is not in the child's best interest. This can happen in the event of domestic violence, or when the non-residential parent commits of other offenses against the family.
Shared Parenting is a theory of parenting based on mutual input from each parent and joint decision-making. Contrary to popular belief, shared parenting does not necessarily mean equal parenting time between the parents. A shared parenting plan could provide equal parenting time, but it does not have to. A shared parenting plan should include provisions addressing all aspects of the care of the children, including physical living arrangements, school placement, medical care, child support, and holiday parenting time. When a court makes a decision about whether to grant shared parenting, the court needs to determine if it is in the child’s best interest. In addition to the factors considered under R.C. 3109.04(F)(1), the court reviews additional factors under R.C. 3109.04(F)(2) to determine whether shared parenting is appropriate. These include:
- Ability of the parents to cooperate and make decisions jointly;
- Ability to encourage the sharing of love, affection, and contact;
- History of child abuse, spouse abuse, other domestic violence or kidnapping;
- Geographic proximity;
- Recommendation of the guardian ad litem, if one has been appointed.
Prior to trial, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability, financial worth, medical, psychological or psychiatric evaluations of the parents and/or minor children. In many instances, this investigation is performed by a Guardian Ad Litem (GAL), which is an independent, third-party appointed by the court to conduct an investigation and make a recommendation as to best interest of the child. There may be costs associated with the appointment and services of a GAL. Courts have some discretion in allocation of GAL fees based upon the parties’ incomes, and disparities in the parties’ incomes. These issues should be raised as early as possible in the court proceedings. Some courts may also have additional services, including home investigation services, or mediation services that can help resolve issues for the parents.
Non-parents may pursue custody of a child, but courts recognize that biological parents have a paramount interest in the care and nature of their children. In other words, biological parents are given preference over non-parents. Before a court can award custody to a non-parent, the court must first determine that the parents are unsuitable or unfit. This is not the same as a “best interest” of the child determination. Once the court has made a finding that the parent is unfit or unsuitable, then the parties are on equal footing and no preference is given to the natural parent; at that point, the court will then review the best interest of the child.
Grandparents or other relatives seeking to establish visitation with a minor child can only raise these issues as part of another proceeding. For example, in divorce cases, a grandparent could intervene pursuant to Civil Rule 75(B) and request visitation or companionship with the child. When a court decides whether to grant grandparents visitation, the court must determine if such visitation is in the best interest of the child. In addition to the factors that a court considers under R.C. 3109.051 when determining parenting time for a non-residential parent, the court also reviews the wishes and concerns of the child’s parents as it relates to the visitation.
Ohio has also created kinship power of attorney affidavits and caretaker affidavits to allow grandparents to care for grandchildren without filing a custody action. This option is used by many grandparents seeking this kind of help to enroll children in school.
If they have not already been addressed by another case, the court will also address child support, health insurance coverage for the child, and child-related tax issues (e.g. tax dependency exemption). See Child Support section for additional information.
In order to change a parenting time schedule, a parent must demonstrate that the existing schedule is no longer in the child’s best interest under R.C. 3109.051, and that a different schedule is needed in order to meet the child’s best interests.
In order to modify custody, or terminate a shared parenting plan, the court must determine that there has been a change in circumstances since the previous order. Generally, under R.C. 3109.04(E), the court will only modify an allocation of parental rights and responsibilities if:
- There is a change in circumstances of the child, the residential parent, or either of the parents subject to a shared parenting plan;
- Modification would be in the child’s best interest; and
- Any harm from the change is outweighed by the benefits (court presumes that a change in custody will be disruptive).
Under R.C. 3109.051(G), the residential parent and legal custodian has an obligation to file a notice of intent to relocate with the court prior to moving. This allows the non-residential parent, or the court, and opportunity to hold a hearing to determine whether or not parenting time should be modified. The obligation to serve the non‑residential parent with the notice may be avoided if it not in the best interest and the court makes a specific finding in writing. Removing this requirement is often important for victims of domestic violence who do not want to disclose their address to an abusive parent.
Often times, a proposed relocation that will substantially alter parenting time for the non-residential parent will lead to the non-residential parent filing a motion to modify custody. Residential parents and legal custodians seeking to relocate should review these issues before any move is made, in order to avoid problems with relocating the child. If the residential parent is a victim of violence and is trying to flee an abusive partner, this decision should be made in consultation with domestic violence advocates and attorneys.
Determining the state in which a custody case is held is a “jurisdiction” issue. If the case is heard in Ohio, determining the county in which the case proceeds is a “venue” issue.
- Jurisdiction: In which state should the case be heard?
Note: Physical presence of a child in a state is not determinative for jurisdiction. For example, if Mother and Child reside in Ohio for 3 years, and move to Indiana in May 2015, Ohio is still considered the “home state” of the child until November 2015 (six months later). Father could file for custody in Ohio during that time period, and the case would likely be litigated in Ohio.
There are some limited exceptions to this general rule. One of those exceptions is based on temporary emergency jurisdiction under R.C. 3127.18. Even if Ohio is not the “home state,” Ohio may be able to exercise temporary emergency jurisdiction if the child is located in the state. The court’s temporary order should specify its duration. 2. Venue: In which county in Ohio should a complaint be filed?
- Unmarried Parents: Custody matters between unmarried parents are handled by Juvenile Court. Juvenile Rules 10 and 11 establish that a complaint should generally be filed where the child is residing or is found.
- Married Parents: Custody matters between married parents are typically handled as part of proceeding to terminate a marriage, such as a divorce or dissolution. In these situations, a complaint can be filed by a parent in either: (a) that parent’s county of residence if residing there for longer than ninety (90) days; or (b) the county of the other parent’s residence.
If there is governmental involvement in your case, typically by a Children Services department, then your case is likely an abuse, neglect and dependency proceeding. These cases follow special rules. Indigent or low-income parents in these cases are usually entitled to court-appointed attorneys. Parents involved in such a case should contact the juvenile court, and/or the public defender’s office for the county in which the case is pending for further information.
Additional ResourcesSelf-Represented Resource Center, Franklin County Common Pleas Court, Domestic Relations Division and Juvenile Branch, 373 S. High St., 4th Floor. Franklin County Common Pleas Court, Domestic Relations Division and Juvenile Branch website: https://drj.fccourts.org Supreme Court of Ohio: Forms available at www.sconet.state.oh.us.
There are several options available for separating couples under Ohio Revised Code Chapter 3105. However, not all of the options are available to, or are effective for, all couples.
- Divorce: This is the most common way to terminate a marriage, and is generally available to all separating couples. This option is used when the parties disagree about what the terms of their separation should be, including allocation of parental rights and responsibilities (custody) for a child, division of property, etc.
- Dissolution: This is an option for terminating a marriage only when the parties are in complete agreement on every aspect of their separation.
- Legal separation: This option does not terminate the marriage. A legal separation will address the same issues as a divorce—but it will not formally terminate the marriage. Some individuals choose this because of religious reasons. Some individuals must pursue a legal separation because they do not meet specific residency requirements for a divorce at the time they start the proceeding (explained below).
- Annulment: This proceeding voids or erases the marriage as if it never happened. This has limited availability, and is typically only used when the marriage has not been consummated, one spouse was still married to another person at the time of the marriage (bigamy), or if one of the spouses was incompetent at the time of the marriage.
A dissolution requires that the spouses are in complete agreement on every issue surrounding their separation. When a court terminates a marriage, the court addresses issues related to any children of the parties, property, debts, and financial support. In order for parties to be able to pursue a dissolution, they must agree on each and every aspect of each of these issues, and be able to resolve their case through a separation agreement that they both sign. If the spouses are in disagreement on any part of any issue, they cannot pursue a dissolution; they must pursue a divorce, instead.
Because of these requirements, dissolution is an option that works well for spouses that can cooperate and communicate, and when the spouses have equal access to information and records so that each is making a fully-informed decision.
A divorce is the more prevalent option for separating spouses, because there is often some issue, or part of an issue, to which the parties cannot readily agree. If the parties start a dissolution proceeding, but disagreements arise, the parties can convert the dissolution proceeding into a divorce proceeding.
Determining whether a divorce case can be filed in Ohio is a “jurisdiction” issue. If the case can be filed in Ohio, determining the county in which the case proceeds is a “venue” issue.
- Jurisdiction: In which state can the divorce be filed?
- Venue: In which county can the divorce be filed?
Note: There could be multiple counties which could provide proper venue for a divorce case.
There is a misperception that there is a substantial benefit or advantage gained by being the first to file for divorce. This is not necessarily true. In fact, the spouse initiating the case often has to pay more in initial filing fees. One instance where filing first may make a difference is if there are multiple counties which could be the venue for the case. For example, husband lives in Franklin County and wife lives in Delaware County. Husband files a divorce in Franklin County on July 1st, and wife files in Delaware County on July 15th. If wife receives divorce paperwork first, then the case will proceed in Franklin County.
Yes, you can still obtain a divorce. Ohio rules allow a spouse to be “served” with a divorce case in a variety of ways, including through a process called “publication,” which generally uses newspaper notification. When filing, you will need to state the spouse’s last known address, that you do not know the current address, the steps taken to try to determine the address, and that the defendant’s residence cannot be ascertained with reasonable diligence. In other words, the court will expect you to take some basic steps, such as calling, texting, or sending a Facebook message to the person to attempt to obtain the address. The court may want you to attempt to serve your spouse at the last known address, before pursuing the publication process. While you can proceed with the divorce in this manner, using this promise may limit the type of relief or orders that the court can make.
The main issues that a court addresses in a proceeding that terminates the marriage are:
- Allocation of parental rights and responsibilities and related issues for child born to the parties, either before or during the marriage (see section on custody for further information).
- Equitable division of marital debts and assets. This does not necessarily mean that the division will be equal. The court reviews the facts and circumstances to determine what is fair and equitable.
- Spousal support. While child support is financial support to care for a child, spousal support or alimony is financial support paid by one spouse for the maintenance of the ex-spouse. Under R.C. 3105.18, the court review a variety of factors to determine spousal support, including:
- Income of the parties;
- Relative earning abilities of the parties;
- Ages and physical, mental, and emotional conditions of the parties;
- Retirement benefits of the parties;
- Length of the marriage;
- Custodial duties towards minor children
- Standard of living of the parties established during the marriage;
- Relative extent of education of the parties;
- Assets and liabilities of the parties;
- Contribution of each party to education, training or earning ability of the other party;
- Time and expense necessary for spouse seeking spousal support to acquire education, training or job experience;
- Tax consequences;
- Lost income production capacity due to martial responsibilities;
- Any other factor that is relevant and equitable.
- Temporary Restraining Orders (TRO). These orders are in place while the case is pending, and generally prevent spouses from removing a child from the court’s jurisdiction, and prevent destruction, dissipation, and secretion of assets (e.g., prevents a spouse from selling a car).
- Temporary orders. Pursuant to Civil Rule 75, the court can issue temporary orders regarding each of the above issues. These are meant to maintain the status quo, and to take care of matters while the case pends
There are some limitations, depending on the circumstances. Courts cannot make certain orders against a defendant-spouse if the court does not have “personal jurisdiction” over the defendant. This is part of “due process” requirements. If there is no personal jurisdiction, the court cannot grant child and spousal support, or make orders that require the defendant to assume an obligation (e.g., to pay a debt, to turn over property). There are several ways these limitations arise.
First, the court will NOT have personal jurisdiction over your spouse if you serve your spouse with divorce papers through the publication process because the spouse is not considered to have actual notice of the case. In these circumstances, the court could terminate the marriage and, if applicable, grant the plaintiff-spouse custody of a child-- but the court cannot impose an obligation on the defendant-spouse, such as a requirement to pay child support.
Second, the court will NOT have personal jurisdiction over a defendant-spouse if that spouse had no “minimum contacts” with the state. The court would look at whether the spouse lived or worked in Ohio, or had some other connection to the state that would make it fair to enter orders against that spouse. If the defendant-spouse does not have those connections or contacts, then the court can only terminate the marriage and award property located in Ohio. The court could NOT divide other property or make spousal support orders, etc.
When a former spouse does not comply with the terms of the divorce decree, the ex-spouse could be in “contempt” for violating the court order. You can file a motion with the court to force your ex-spouse to comply and/or to impose other penalties on your ex-spouse.
Unfortunately, third-party creditors are not bound by the terms of a divorce decree, and typically do not care which spouse is responsible for paying particular debts. For example, you may have had a credit card in your name, or both of your names, and your ex-spouse is obligated to pay this debt under the divorce decree. If your spouse does not pay, the creditor can still pursue you for the debt because you are still obligated under the terms of the contract or agreement you entered into with the credit card company. Your only course of action would be to file for contempt against your ex-spouse under the divorce case; but this has no effect on your creditor’s right to collect from you.
- Self-Represented Resource Center, Franklin County Common Pleas Court, Domestic Relations Division and Juvenile Branch, 373 S. High St., 4th Floor.
- Supreme Court of Ohio: Forms available at www.sconet.state.oh.us.
It is important to understand the similarities and differences between “domestic abuse” and the legal definition of “domestic violence.” Understanding these terms will help you identify steps that you can take to ensure your safety and to help end the cycle of abuse.
- Domestic Abuse
- Attempting to cause or recklessly causing bodily injury;
- Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 [menacing by stalking] or 2911.211 [criminal trespass] of the Revised Code;
- Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 of the Revised Code;
- Committing a sexually oriented offense.”
There are different ways that one may be able to seek protection from domestic violence. Many people refer to these legal options generally as “restraining orders,” but there are different kinds. The following are different types of court orders in criminal and civil (non-criminal) cases:
- Criminal: Defendant-abuser has been charged with a crime, and prosecutor pursues the case.
- Stay Away Orders: These are general provisions requiring the defendant to stay away from the victim. These “stay away” provisions are usually a condition of bond while the case is pending, or a condition of probation after the criminal case concludes. If the defendant violates this provision, he or she will probably not be subject to immediate arrest unless there is another order (see below). If there is only a “stay away” provision, then this will likely result in a bond revocation or probation revocation.
- Temporary Protection Order (TPO)
- Anti-Stalking Protection Order (SPO)
- Civil Protection Order (CPO)
- Civil Stalking and Sexually-Oriented Offense Protection Orders (SSOOPO)
In order to start the CPO process, the victim or survivor must file a “petition,” which is similar to a complaint, in common pleas court. The victim is referred to as the “petitioner” and the abuser is referred to as the “respondent.” The petition is a form established by the Supreme Court of Ohio, and is readily-available on its website and at many courthouses. The victim will need to state some of the reasons why the victim needs a protection order. For many victims, this will include a description of the defendant’s abusive behaviors. The Court conducts an immediate “ex parte” hearing. This is a hearing where only the petitioner/victim is present. At this hearing, the court determines whether it will grant a temporary “ex parte” CPO until the case can be scheduled for a full hearing. Regardless of whether the court grants the ex parte CPO, the court will schedule the case for a full hearing, where both the petitioner and respondent present their evidence. This hearing is scheduled in approximately 7-10 days. In order for the court to conduct the full hearing, the respondent must be served with a copy of the petition, and the ex parte CPO (if one is issued).
A CPO can be filed where the petitioner resides or is temporarily residing. Sometimes, a victim may flee from her usual place of residence, and temporarily reside in a different county. The victim can file in the county in which she is temporarily residing. A CPO can also be filed in the county where the respondent resides, or the county where the violence occurred. What do I need to prove in order to obtain a CPO? In order to obtain a CPO, a petitioner will need to show all of the following:
- That the respondent is a family or household member. This could include having a child in common, or have another type of cohabitating relationship; this does not need to be a current cohabitation.
- That the respondent committed an act of domestic violence. Under R.C. 3113.31, domestic violence is defined as:
- Attempting to cause or recklessly causing bodily injury;
- Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 [menacing by stalking] or 2911.211 [criminal trespass] of the Revised Code;
- Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 of the Revised Code; or
- Committing a sexually oriented offense.
- Fear that respondent can cause imminent/immediate harm. This third requirement is most important at the ex parte hearing, but it is still something that the petitioner should demonstrate at the final hearing, regardless of the type of violent act that was committed, in order to increase the chances of obtaining a protection order.
There is no one right way for a victim to present their story to the court, and the type of information that a victim presents may depend on what happened. A victim can provide their own testimony or statement; sometimes, a victim may decide not to testify because they have other evidence. A victim could present photos of injuries, or testimony of a friend or neighbor who witnessed something or heard something directly. Sometimes, victims present medical records. If an abuser sent threatening emails or text messages, victims may present copies of these records. These are just some examples of helpful evidence. However, victims do NOT need to have physical injuries, photos of physical injuries, or police reports in order to obtain a CPO. While those facts and reports may be helpful for the victim’s case, they are not required.
The most common provision in a CPO is an order requiring the respondent to stay away from the victim, and the victim’s residence, place of employment, or school; this also includes restricting communication, such as phone, letters, email or other electronic communication. It also prevents someone else from doing things on the respondent’s behalf that the respondent is prohibited from doing. For example, the respondent’s brother cannot pass a message from the respondent to the victim. In addition, a CPO can:
- Protect other family and household members;
- Provide an award of temporary custody and temporary financial support;
- Grant petitioner exclusive use of a residence, and exclude the respondent from the residence;
- Divide household goods and furnishings; or
- Require the respondent to allow the petitioner to use a motor vehicle.
A CPO can last up to 5 years from the date it is issued.
No, a petitioner can file a petition for a CPO on her own. However, there are various resources for legal representation, including The Legal Aid Society, and Capital University Law School, which has attorneys based at the court in Franklin County. In addition, petitioners may be able to find private attorneys who can take cases at no cost to the petitioner; the attorney then receives fees from the Ohio Attorney General, or other agencies such as Ohio Domestic Violence Network.
No, the petitioner does not incur any fees or costs for any part of a CPO case, even if the case is dismissed. The petitioner’s income does not matter. NO petitioners are charged court fees or costs for a CPO, regardless of income.
Yes. A petitioner can keep her address confidential and does not need to disclose her address on the petition. Sometimes, petitioner may use a P.O. Box, a family member’s address, or an address of an attorney.
The order is valid, but the respondent may not face criminal charges for not following the CPO if the respondent is not served with the CPO. If the respondent is doing something that would otherwise violate the terms of the order, the petitioner should still immediately contact law enforcement to complete a report.
If a respondent violates the terms of a protection order, the respondent can face criminal charges for violating the CPO. A petitioner should immediately contact law enforcement to complete a report. This will help ensure that the respondent is charged for violating the terms of the CPO.
No. A TRO may contain provisions that a spouse can not harm or harass the other spouse, but it is not a CPO. The TRO only lasts for the length of the divorce case, and a spouse will not be subject to criminal charges for violating the terms of the TRO (they may be in “contempt” for violating the order, but law enforcement is not involved in enforcing or prosecuting).