There is a great deal of interest in grandparents’ rights. It is an area of law that varies from state to state. The good news is that Ohio recognizes the legal rights of grandparents. What is in “the best interest of the child” is always the underlying consideration the Ohio courts take into account when decisions are made about the rights of grandparents.
The Ohio Revised Code (ORC), in Section 3109.051, provides statutory support for grandparents’ legal rights, but this section is not all-inclusive. A family law or grandparents rights’ attorney can help you if you decide to take action. This can be a very difficult area to navigate on your own.
There are 11 factors in Ohio law that apply to custody and visitation rights. They make up the “best interest of the child” previously mentioned. These factors are listed in the next section. “Best interest” decisions begin with the language of the court order or mediation agreement and apply to all visitation and custody rights decisions.
Rights of Grandparents During a Divorce
When the parents of a child divorce, sometimes one of the parents will try to keep the grandchildren away from their former spouse’s parents. In other words, the mother might keep the children away from the paternal grandparents or the father may try to keep the children away from the maternal grandparents.
The 11 Factors that actually apply to all visitation and custody rights in Ohio are:
1. The wishes and concerns of the child’s parents;
2. The prior interaction and interrelationships of the child with parents and other relatives;
3. The location of the grandparent’s residence and the distance between it and the child’s residence;
4. The child’s and parents’ available time;
5. The child’s age;
6. The child’s adjustment to home, school and community;
7. The wishes of the child if the court has interviewed the child in chambers (judge’s or magistrate’s);
8. The health and safety of the child;
9. The amount of time that a child has available to spend with siblings;
10. The mental and physical health of all parties;
11. Whether the person seeking visitation has been convicted of or pleaded guilty to any criminal offense involving an act that resulted in a child being abused or neglected.
If a grandparent is denied visitation, a court is under no obligation to tell the grandparents why the visitation was denied. The judge may issue a written order explaining the decision. If there is no such written order, any party can ask the judge for an explanation. This is called a “finding of fact and conclusion of law.”
Grandparents Rights After Adoption by a New Spouse
While a marriage or remarriage of a parent will not affect a visitation order, or the power of the court to modify the visitation order, an adoption can be an entirely different matter depending on the circumstances of the adoption.
In most cases where there is a divorce, or in the case where the parents of the child never married, an adoption order terminates the rights of one of the parents. That adoption order would also terminate the visitation rights of any relatives of the parent. That would include grandparents. So, if the mother of the child remarries and the mother’s new husband adopts the child, under most adoption orders, the father’s parental rights are terminated. The visitation rights of the father’s parents, the grandparents, would also be terminated.
If the adoption order does not terminate parental rights, then grandparent visitation would not be affected. BUT, there is an exception to this general rule:
If a parent remarries after their spouse has died and a new spouse wants to adopt the children, he or she cannot terminate the visitation rights of that child’s grandparents. Ohio has a law that in these types of cases grandparents’ visitation rights remain intact. However, the court can continue to modify the visitation rights of the grandparents or relatives of the deceased parent.
Frequently Asked Questions
Here’s a brief list of the most common questions grandparents ask us along with our answers:
If my grandchild’s mother or father is divorced or going through a divorce, do I have visitation rights?
Ohio law provides a grandparent with certain visitation rights with their grandchildren. A grandparent can file a motion with the court in a divorce, dissolution, legal separation or annulment for grandparent visitation rights. The court, after hearing, will grant grandparents their own individual visitation rights involving a minor child if the person has an interest in the welfare of the child and if the court determines that the granting of the companionship for visitation rights is in the best interest of the child.
What if one of my grandchild’s parents is deceased?
Grandparents of a deceased parent can receive visitation rights. Ohio law states that if either the father or mother of an unmarried minor child is deceased the grandparents have the right to ask for visitation. The court will decide if its in the best interest of the child.
What if the parents of my grandchild were never married?
Ohio law provides visitation rights to a grandparent when the child’s mother is unmarried. The law says if a child is born to an unmarried woman, the grandparents have a right to request visitation rights. This includes both the biological father’s parents and mother’s parents. The court will determine what is in the best interest of the child with respect to any request.
What can be done if my grandchild is removed from the jurisdiction?
Any request needs to be made in the Ohio County where the child lives. The only exception would be if a case had already been initiated in another county, then that county would retain jurisdiction.
What if my grandchild does not want to visit me?
The court will make a determination on this issue.
Do I have any financial liability if my grandchild visits me?
No. Child support is between the biological parents.
Can I get medical care for my grandchild during a visit?
Yes. If there is a court order allowing visitation and should the child need emergency medical care while in the care of the grandparent, the grandparent would be allowed to obtain medical treatment for the child while in their care.
Can I obtain legal custody of my grandchild?
In certain circumstances Ohio law does allow a grandparent to obtain legal custody.
The court would need to determine the biological parents are unfit.
The definition of unfit in Ohio generally means habitual drunkenness, habitual drug abuse, abandonment and other such issues which would again require the court to make a finding of unfitness.
What if my grandchild doesn’t live in Ohio
The state of the child’s residence is the “home state” of the child and that state would have jurisdiction as to whether or not visitation rights would be granted. Each state has different laws as pertains to visitation rights and the state with jurisdiction would need to be contacted in order to ascertain what if any rights the grandparent has in that particular state.
What if my grandchild already lives with me?
The law provides a solution for the situation where a child is living with the grandparent and the parents of the child can not be found. This is only a temporary solution and is not the same as legal custody, but it allows the grandparent to do what is necessary for the child such as, enrolling the child in school and taking the child to the doctor, etc. The law states, in relevant part, that if a child is living with a grandparent who has made reasonable attempts to locate and contact both of the child’s parents, guardian, or custodian but has been unable to do so the grandparent may obtain the authority to exercise care, physical custody, including the authority to enroll the child in school, to discuss with the school district the child’s educational progress, to consent to all school related matters regarding the child and to consent to medical, psychological or dental treatment for the child by executing a caretaker authorization affidavit.
The more common scenario is when grandparents are raising their grandchild with the knowledge and consent of the biological parents. Ohio law provides that in certain circumstances a parent may give a grandparent a Power of Attorney to enroll the child in school, care for the child’s medical needs, etc. This is similar to the caretaker affidavit, however the parent is present and willing to execute the power of attorney. Furthermore, the affidavit must be executed by both parents if they are married and living as husband and wife, if the child is subject to a shared parenting order or if the child is subject to a custody order.
The law does not require a parents signature on the affidavit if the legal custodian is prohibited from receiving a notice of relocation or if the parents parental rights have been terminated by a juvenile court of competent jurisdiction. If the parent who is not the residential parent and legal custodian can not be located, with reasonable efforts, that parent does not need to execute the affidavit.
Contact Us To Discuss Your Rights as a Grandparent
Contact us for a free consultation with one of our experienced attorneys to discuss your rights as a grandparent. We can be reached anytime by calling 888-774-9265, chatting with one of our 24-hour live chat operators or sending us a website message.
You may also want to review the following information related to grandparent rights: