Biological, adopted, step, half, custodian, guardian, kin, foster; these are just a few of the many terms that describe the makeup of a family. While their legal meanings may vary, no one label symbolizes or necessitates any more or less love, stability, or care for one another.
As a mediator, a collaborative divorce professional, and a guardian ad litem, creativity is the name of the game when navigating any family law matter. Regardless of the family makeup, a primary goal is to understand the interests of all parties involved, and, at the end of the day, to hopefully achieve a resolution that acknowledges those interests; a resolution that is durable, reasonable and, when children are involved, is in their best interest. I know… simple, right?
But not every family utilizes a mediator, not every case decides to work within the collaborative law process, not all children are appointed a Guardian ad Litem. Not every family needs or wants additional interventions. Some folks going through a divorce or child custody proceeding simply wish to sign on a dotted line, while others seek at least some sort of guideline framework instead of starting from scratch, so as to not reinvent the wheel. Others, still, wish to craft a truly individualized agreement, very particular to the unique interests of their family.
Consider how does the Court navigate the interplay between judicial efficiency and treating every matter on a true “case-by-case” basis? How, in a negotiation, do we provide a “starting point,” without one party or another digging their heels so much so that they are unwilling to compromise? How do we create a data point without it being the driving point? How do we ensure consistent application of the law, while also meeting the needs to the individual family?
This reality of differences in party preferences and circumstances highlights the conundrum of “the standard.” While a standard or template provides footing and efficiency for some parties, it may be an inflexible burden on others.
In Kentucky, House Bill 528 was recently enacted, making it the first state to establish a legal presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time are in the best interest of the child (this presumption may not apply in cases involving domestic violence).
In Ohio, House Bill 14 was introduced in 2023 to create a similar presumption of shared parenting (i.e. joint decision making) and equal parenting time in custody cases. The bill proposed that courts presume equal parenting time to be in the child’s best interest unless a parent could demonstrate, by clear and convincing evidence, that such an arrangement would be detrimental to the child. Despite undergoing amendments, the bill faced continued opposition from legal and domestic violence organizations, which argued that it prioritized parental entitlements over the child’s best interest. Ultimately, the bill expired in December 2024 without being enacted.
In Ohio, the current standard for all cases involving children is simply what is in the “best interest of the child?” It does not presume anything about a parenting time schedule nor a custody allocation to be in the best interest of the child. The trier of fact is to consider a host of factors that are enumerated in the Ohio Revised Code when deciding issues involving custody, the parenting time schedule, etc., which include the wishes of the parents, wishes of the child(ren), the mental and physical health of all persons involved, the child’s adjustment to their home, school and community, and so on; but ultimately, the decision is quite discretionary.
Many Ohio courts, including Hamilton County’s Domestic Relations and Juvenile Courts, have developed their own “Standard Parenting Orders,” which, while they are not considered presumptions like the Kentucky and proposed Ohio laws, they do provide guidance for the Courts, attorneys, and parties alike. The Domestic Relations Court’s Standard Order lists various schedules that change based on the age of the child(ren) and include different options for schedules, including a blank schedule that allows the parties to fill in a “custom” schedule. The Juvenile Court’s Standard Order is slightly different; there are also various schedules depending on age, but there is a final singular schedule which allocates an equal distribution of parenting time for each party.
How are standard orders used in practice? In my experience, and in typical attorney fashion, the answer is: it depends. They can be adopted in a court order in their entirety, or they can be cherrypicked in a piecemeal fashion, such as incorporating only the holiday schedule or the vacation language into the final order. Some see the standard order as a true presumption, only to be argued against. Others see it as a fallback option, and for some, it’s not even a consideration.
This interplay is not so dissimilar to Ohio’s child support laws. The State of Ohio mandates the use of a child support computation worksheet in each case where minor children are involved. The equation considers each party’s base income, the average of their last three years of overtime, bonuses and commission, their health insurance premium costs if covering the child(ren), and the amount of work-related childcare expenses each parent pays annually. The child support worksheet then calculates an amount that each party would pay to the other if they were determined to be the obligor of the support. That number, however, is only “step one” in the analysis, as there are then a host of factors enumerated in the Ohio Revised Code as to reasons that a deviation from the calculated number may be appropriate and in the best interests of the child(ren). The parties can also agree to a deviation, either upwards or downwards, and are even able to agree that there not be an exchange of child support at all, despite the worksheet calculating otherwise.
Despite the law specifically providing for deviation factors to be considered in the child support analyses, it’s easy to see how one would look at child support worksheet’s output and immediately become positional or stuck, and unwilling to compromise. That number provides a very “black and white” data point, as opposed to the factors for deviation which are very discretionary, despite them being a necessary part of the analysis.
Family law practitioners may be quite comfortable in the grey area of discretion, but the same is not always true for clients; they may very well prefer those answers to be definitive. The ability to share a standard order, especially in custody matters, may create a sense of calm, in an otherwise stressful situation. At the very least, they can see an example of a plan, even if it’s not necessarily appropriate for their particular case.
While there are many reasons why presumptions or standards can be useful for parties, practitioners and the Court alike, like any concept within the law, there are potential pitfalls of which we need to be mindful. On its face, a statutory presumption of equal parenting time being in the best interest of the child sounds fair and reasonable, but it can often yield arguments where instead of focusing on what is best for the children, the focus is instead on all of the reasons why the other parent should not have an equal amount of parenting time, making the litigation that much more painful. A standard or presumption of equal parenting time can also give a “leg up” to the parent who is requesting an equal division of parenting time, leaving the parent who is not, perhaps for good reason, fighting an uphill battle against not just the opposing party, but also against the standard or presumption itself. In a negotiation, like with the initial child support calculation, parties can become “stuck” in what is very well meant to be a starting point. It can become an anchor in a negotiation instead of the starting place being: “what is in the best interest of the child(ren)” or even what is best for this family. It might even push folks to “take their chances” in Court, instead of staying at the negotiation table, if that party feels that the standard or presumption is “on their side.”
What is the result of a presumption or standard? Potentially less creativity, less flexibility, less commitment to coming to a conclusion for the family, by the family that works for their particular situation.
That is not to say that those negative consequences are always the result. It’s not even to say that if it is the result, the benefit still doesn’t outweigh the harm. A standard or a presumption can promote efficiency, it can be a guiding light in an otherwise dark space, it can even prevent litigation —– but we should be wary of the potential downsides to its rigidity.
There is an inherent tension between standardization of process and individualized practice, but there is a path forward that allows clients to experience the benefits of each approach. I firmly believe we in the Domestic Relations and Juvenile Court legal community can, and should, commit to a level of openness by reminding families that there is not a true “one size fits all” option. Flexibility empowers parties to work together to make decisions for what is truly best for their individual and unique family, allowing for outcomes that are more personalized, equitable, and beneficial for the parties involved. By using the standard orders as a starting point for collaboration instead of an inflexible or compulsory endpoint, it benefits all parties. I believe the answer, while recognizing both a standard’s usefulness and its pitfalls, is in openness and creativity — a willingness to listen and curate a personalized path forward that addresses each family’s individual needs.
Rebecca Zemmelman is a Partner at The Family Law and Fertility Law Group where she practices exclusively family law, adoption law, as a mediator and as a Guardian Ad Litem. Rebecca has been a member of the Cincinnati Bar Association since 2013 and has served on the YLS Board, the Juvenile Law Practice Group Committee and participated in CALL in 2023, all through the Cincinnati Bar Association.