In the first two parts of this series, we explored how grandparents in Ohio can seek visitation rights and obtain temporary custody through parental agreements. But what happens when a grandparent believes that a more permanent custody arrangement is necessary to protect the well-being of their grandchild?
In this final installment, we will discuss the legal process for grandparents petitioning the court for legal custody. We will examine the key legal standards, the factors courts consider and what grandparents must prove to demonstrate that granting them custody serves the best interests of the child.
As mentioned in the previous installment, parents have strong constitutional protections regarding the care, custody and control of their child. Because of this, it can be challenging for a non-parent to obtain custody. However, there are several situations where a non-parent, such as a grandparent, may be granted legal custody through a court order.
First, the grandparent must prove by a preponderance of the evidence that the parents are “unfit” or “unsuitable.” Then, the court must find, after considering all relevant factors, that awarding custody to the grandparent—rather than the parents or another adult petitioner—would be in the child’s best interest.
Unsuitability
To overcome a parent’s constitutional right to custody, a grandparent must prove in court that the parent is unsuitable. But what does it mean for a parent to be legally unfit?
The concept of unsuitability was first discussed by the Ohio Supreme Court in 1977 in In Re Perales. In that case, the court held that:
“parents may be denied custody only if a preponderance of the evidence indicates abandonment, contractual relinquishment of custody, total inability to provide care or support, or that the parent is otherwise unsuitable—that is, that an award of custody would be detrimental to the child.”
In other words, children are not entitled to “A+” parents. If a parent decides to spend his or her money on video games rather than extracurriculars—the parent is still considered fit. If a parent chooses to feed their child mostly junk food but the child is not medically malnourished—the parent remains fit. If a parent is capable of working but prefers to rely solely on government assistance, they are still fit under the law.
Unless a parent is truly failing in their responsibilities—placing the child in harm’s way or causing serious negative effects—the courts will not interfere in their parental rights. It is not enough that a child could have a better upbringing with a grandparent—there needs to be strong evidence that the parent’s actions are actively harmful to the child.
This high legal standard can be difficult for many grandparents to understand, especially if they have played a significant caregiving role. However, while the burden of proof is high, it is not insurmountable. Each case is decided on its unique facts and courts evaluate parental suitability on a case-by-case basis.
Once the court determines that the parent(s) are unfit, it will then assess all relevant factors to decide what custody arrangement serves the child’s best interests.
Child’s Best Interest
Throughout this three-part series, the “best interest of the child” has been mentioned repeatedly. But what does that actually mean and how do Ohio courts make that determination?
The Ohio Revised Code 3109.051 outlines the factors courts must consider when making parenting or custody determinations. In cases where grandparents request companionship/visitation time or custody, the court will evaluate, among other factors:
- The child’s relationship with their parents, grandparents, and other relatives;
- The child’s wishes (if the court conducts a private interview with the child);
- The parents’ preferences regarding custody;
- The child’s age;
- The distance between the residences of the parties involved;
- The child’s adjustment to their home, school, and community;
- The child’s overall health and safety;
- The child’s relationship with their siblings;
- The mental and physical health of everyone involved;
- The parents’ schedules and availability;
- Whether there is any evidence of child abuse, neglect, or domestic violence.
In addition, the court will consider any other factor it deems relevant to determining the child’s best interest.
Conclusion
As we have explored in this three-part series, Ohio law provides avenues for grandparents to seek visitation and custody, but the legal standards are high, particularly when attempting to override a parent’s fundamental rights. Courts carefully consider the child’s best interests and require substantial evidence before granting custody to a non-parent.
Given the legal complexities involved, grandparents seeking visitation or custody should consult an experienced domestic relations attorney. A knowledgeable attorney can help navigate the legal system, present a compelling case, and advocate for the best possible outcome for both the grandparents and the grandchild.
