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Child custody: parents versus grandparents

Child custody: parents versus grandparents

In Ohio, as elsewhere across the country, the phenomenon of grandparents raising their grandchildren is increasing. As reported by the PBS Newshour, over 2.9 million children were living with grandparents in 2015 as compared to 2.4 million such children 10 years earlier.

The Ohio State Bar Association points out, however, that Ohio law is clear when it comes to the  parents versus grandparents  custody issue. Section 3109.042 of the Ohio Revised Code gives a child's full custody to the biological parent(s) unless and until a court determines that the parent is unfit.

Types of custody

Ohio has different types of custody, including the following:

  • Legal custody - full rights to the child's care and control
  • Temporary custody - temporary right to the child's physical care and control
  • Shared parenting rights between the parent and a nonparent

Even if a parent grants temporary custody and/or shared parenting rights to the child's grandparents, such grant is not sufficient to allow the grandparents full legal custody except under special circumstances. The agreement must have been filed with the court and the parent must not have visited or contacted the child for at least 90 days prior to when the grandparents file for legal custody. In such a situation, the court may find that the parent abandoned the child and is therefore not a suitable parent.

Determining who is an unsuitable parent

To be declared an unfit parent, the court must find by a preponderance of the evidence that the parent did one or more of the following:

  • Signed a legally binding contract giving up legal custody
  • Abandoned the child
  • Became incapable of providing the child's care
  • Made it detrimental to the child's best interests that he or she remain in the parent's custody

In the case of an unwed or divorced father whose child has been removed from the natural mother's custody due to abuse or neglect, he is automatically considered to be an unfit parent, too, even though he did not live with the mother and/or child. Occasionally a court may determine that it is in the child's best interest to be placed with the biological father if he did not participate in the abuse or neglect.

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