Page 12 - MarchApril25 Report

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 equa-
tion 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 devia-
tion 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 stan-
dard order, especially in custody matters,
may create a sense of calm, in an other-
wise 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 stat-
utory 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 stan-
dard 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 calcula-
tion, 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 nego-
tiation 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 individu-
alized practice, but there is a path forward
that allows clients to experience the bene-
fits 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 fami-
lies 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 bene-
fits all parties. I believe the answer, while
recognizing both a standard’s useful-
ness 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.
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12 THE REPORT | March/April 2025 | CincyBar.org