Page 11 - MarchApril25 Report

The Nuance
of a Standard
The impacts of presumptions and
defaults in family law matters.
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 navi-
gating 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, reason-
able 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 presump-
By Rebecca Zemmelman
tion 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 entitle-
ments 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 chil-
dren 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 “Stan-
dard 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 sched-
ules 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
THE REPORT | March/April 2025 | CincyBar.org 11