PART 2 – HB 508
Last week was the first in a series of two articles on the content of House Bill 508—which would make the presumed outcome in child custody matters that of Shared Parenting and an equal parenting time schedule— as well as the potential impact of the legislation, if passed. In the first article, we covered the nature and specifics of Ohio’s current child custody statutes—in particular, what the current laws say and require, as well as the practical presumptions that are effectively built into the same.
In this second and final article, we will turn our attention to the content of HB 508 itself—specifically, how its provisions differ from Ohio’s current child custody statutes and laws. We will also, generally, discuss HB 508’s potential impact on Ohio’s current custodial and parenting time or visitation framework, as well as HB 508’s potential impact, as a practical matter, on the current status of custody arrangements in Ohio.
WHAT DOES HB 508 SAY?
In a nutshell, HB 508 proposes to, on paper, drastically shift the current legal framework for child custody cases in order to place a very clear emphasis on and preference for Shared Parenting arrangements and equal parenting time or visitation schedules. This proposed framework shift would apply to both final child custody orders (i.e., those orders issued at the conclusion of a child custody case) as well as temporary child custody orders (i.e., those orders issued while a child custody case is pending).
The precise nature of this shift is evident from the first substantive section of HB 508. Indeed, the proposed language of HB 508 would expressly codify the following, overarching public policy principles by which Ohio’s courts would be required to abide in all child custody matters:
It is the policy of this state to assure that minor children have a continuing full parent and child relationship with parents and to assure to the greatest degree possible that parents share equally in parenting time and the rights and responsibilities of rearing their children after the parents have legally separated, divorced, or dissolved or annulled their marriage or in the situations in which the mother is unmarried.
Clearly, this language sets a much different tone than the presumptions which exist in Ohio’s current child custody legal framework, as were discussed, in more detail, in the first installment in this series. As a result, in essence, the biggest impact of HB 508, from a legal perspective, would be to adjust the presumed custodial outcome—and thus, the starting point—in each and every child custody case in Ohio.
In particular, under HB 508, each and every child custody case would start with the presumption that the custodial outcome which is in the best interest of the children is one of Shared Parenting and an equal parenting time or visitation schedule. Moreover, under the proposed language of HB 508, if a parent disagreed with this presumed outcome, then he or she would have the burden of proof to rebut that presumption by showing that, in this particular case, Shared Parenting and/or an equal parenting time or visitation schedule would be detrimental to the children. Pursuant to HB 508, the same presumptive framework would apply in the case of any temporary custody or temporary parenting time orders issued in child custody actions (i.e., those orders issued while a child custody case is pending).
To this end, what HB 508 proposes is, in many ways, the inverse framework of the current Ohio child custody laws. Specifically, under HB 508, a parent who desires Sole Custody and/or an unequal parenting time or visitation schedule would be required to take the affirmative steps to demonstrate that Shared Parenting and/or an equal parenting time schedule would, in fact, not be in the best interest of the children at issue.
FACTORS OF CONSIDERATION UNDER HB 508
Factors which the court would be required to consider under HB 508 in order to determine whether the presumption for Shared Parenting had been rebutted—and thus, whether Shared Parenting would be detrimental to the children—include the following:
1. The demonstrated ability of each parent to cooperate with the other parent and to encourage the sharing of love, affection and contact between the child and the other parent.
2. Any history of child abuse or neglect, spouse abuse, other domestic violence or parental kidnapping by either parent.
3. The mental health of all persons involved in the situation.
4. The recommendation of a Guardian ad Litem, to the extent one is involved in the lawsuit.
Similarly, factors which the court would be required to consider to determine whether the presumption for an equal parenting time or visitation schedule had been rebutted—and thus, whether an equal visitation schedule would be detrimental to the children—include all of the factors detailed above, with the exception of the first one, in addition to the following:
1. The geographic proximity of the parents to each other at the time of initial filing.
2. The child’s wishes and concerns, to the extent the child has been interviewed by the court in chambers.
3. The child’s interaction and interrelationship with the child’s parents, siblings and any other person who has a significant relationship with the child.
4. The child’s adjustment to the child’s home, school and community.
5. Whether a parent has continuously and willfully interfered with or denied the other parent’s right to parenting time in accordance with an order of the court.
6. Whether either parent has established a residence, or is planning to establish a residence, outside the state.
Notably, under Ohio’s current child custody laws, many of the above-listed factors must already be considered by the court to determine the best interest of the children, both from a custody and parenting time or visitation perspective. However, HB 508’s proposed reorganization of these same or similar factors in the way described above would require the court to view the factors under a different lens—in particular, a lens of whether these factors go against as opposed to support the presumed best interest of the child. While HB 508’s refocus of these factors is not necessarily monumental, it inherently would result in a notable reframing of the current analysis.
HB 508 also proposes to adjust the legal standards and processes for a parent to modify or terminate a custodial order or agreement that is already in place. Interestingly, for any custodial orders or agreements that were issued under the current or an earlier version of Ohio’s custody law, HB 508 expressly indicates that those prior orders will be enforced and modified under the new legal standards set forth in the proposed statute. Ultimately, this particular point, coupled with other nuances in the proposed language of HB 508, could result in an influx of requests to modify current custodial orders or agreements, to the extent that HB 508 is, in fact, passed.
THE POTENTIAL OUTCOMES OF HB 508
As a practical matter, if passed, would HB 508 foster more Shared Parenting outcomes in Ohio child custody cases? Maybe – it’s difficult to say.
In fact, despite the potential hurdles imposed by Ohio’s current custodial framework, in recent years, Shared Parenting has seemed to become the most common type of custodial arrangement in Ohio, with many courts appearing to express an unstated preference for the same. As a result, perhaps the largest practical effect of HB 508, if passed, would be to bring Ohio’s child custody laws more in line with Ohio’s trending custodial outcomes, as well as to require Ohio courts to promulgate new standard parenting time and visitation schedules that equally divide time with the children between the parents.
Ultimately, the proof will be in the pudding. But, for now, at a minimum, the introduction of HB 508, and if passed, the massive shift, at least on paper, in Ohio’s child custody laws that may result is certainly something to monitor over the coming year.
At KJK Family Law, we understand just how challenging navigating child custody issues can be, especially when governing laws might soon be in flux. Rest assured that we are staying up to date on such developments.