In order to change your child’s name, an application would need to be filed with the Probate Court in the county that the child has resided in for at least one year.  On the application, the applicant will have to state the reasons for the requested name change and the requested name.  Notice of the application will have to be given to the non-consenting parent and a hearing would be scheduled before a Court Magistrate.

The standard the Court would be applying in reviewing the application is reasonable and proper cause for the name change.  In determining whether there is a reasonable and proper cause for the name change, the Court would have to consider the best interest of the child.  When considering whether to change the child’s last name, the Court will take into consideration the following factors:

• the effect of the change on the preservation and development of the child’s relationship with each parent;
• the identification of the child as part of a family unit;
• the length of time that the child has used a surname;
• the preference of the child if the child is of sufficient maturity to express a meaningful preference;
• whether the child’s surname is different from the surname of the child’s residential parent;
• the embarrassment, discomfort, or inconvenience that can result when a child bears a surname different from the residential parent’s;
• parental failure to maintain contact with and support of the child;
• and any other factor relevant to the child’s best interest. 

If you have questions regarding applying for a child’s name change or having representation in the proceedings, seek out a probate lawyer.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Probate Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Parents are responsible for supporting their children.  However, until a child support order is established by CSEA, the Child Support Enforcement Agency, or the Court, there is no way to enforce that obligation.  If you are the residential parent of a child and you wish to have the other parent support your child, you need to establish an order.  An order can be established through CSEA or through the Court.  If you establish child support through CSEA, the Child Support Enforcement Agency, then child support will commence at the time the Order is goes into effect.  If you establish child support through Court, then child support will commence at the time of filing. 

How can I receive retroactive child support?

Often residential parents would like the other parent to pay support prior to the issuance of the Child Support Order.  Retroactive child support is available with several exceptions.  First, retroactive child support must be requested at the time paternity is established.  If paternity and child support are established through CSEA, the residential parent must object to the child support order with juvenile court in order to request retroactive support.  Moreover, retroactive child support is not available if at the time it is requested, the child is over three years of age and the father had no knowledge and had no reason to have knowledge of his paternity prior to the filing of the action. In order to show knowledge of paternity, the Mother must be able to show that she made a reasonable effort to contact and notify the father of his paternity.

How can I receive my pregnancy and confinement (postpartum) costs from the child’s father?

The same rules that apply to retroactive child support apply to pregnancy and confinement (postpartum) costs.  First, the costs must be requested at the time paternity is established.  If paternity and child support are established through CSEA, the residential parent must object to the child support order with juvenile court in order to request the costs.  Moreover, pregnancy and confinement (postpartum) costs are not available if at the time it is requested, the child is over three years of age and the father had no knowledge and had no reason to have knowledge of his paternity prior to the filing of the action. In order to show knowledge of paternity, the Mother must be able to show that she made a reasonable effort to contact and notify the father of his paternity.

For more information on establishing a Child Support Order,establishing Paternity, requesting retroactive Child Support or pregnancy and confinement (postpartum) costs, consult with a Child Support Attorney.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Cleveland Child Support Attorneys; Cleveland Retroactive Child Support Attorneys; Domestic Relations; Family Law; Interstate Support; Paternity; Child Support; Fathers Rights; Juvenile Law

• The child’s parents are unmarried.
• The child’s parents are going through a divorce, dissolution of marriage, legal separation, annulment or child support proceedings.
• The child is involved in an abuse, dependency, or neglect case. 

How can a Grandparent Obtain Custody of a Child?

Obtaining custody of a grandchild can be very challenging because the Courts consider the right of parents to care for their children a fundamental right.

The U.S. Supreme Court held in Troxel v. Granville, that the parents’ right to the custody of their children is paramount to any custodial interest in the children asserted by a non-parent, including a relative like a grandparent.  However, there are three ways in which parents can lose their paramount right to care for their children.

• The child can be adjudicated an abused, neglected, or dependent child by the Court.  
• A parent can relinquish custody of the child through an agreement or contract.
• A parent can be found by the Court to be unsuitable to care for the child.

Once one of the above criteria is met, the Court will then determine whether it is in the child’s best interest for a third party, like a grandparent, to be awarded custody.

This high burden can be very difficult for many grandparents to understand, especially if they have provided substantial care for their grandchildren or even cared for their grandchildren exclusively for many years due to a child’s drug use or indifference or other circumstances. 

Although the burden is high, it is not insurmountable and every case is different.  If you are seeking custody of your grandchild, it is best to discuss your situation with a family law attorney.

How can a Grandparent Obtain Visitation Rights?

Once a motion for visitation rights is filed with the Court, the court will grant grandparent visitation if it determines that it is in the best interest of the child.  When determining whether it is in the child’s best interest, the court will consider the following factors:

• The prior interaction and interrelationships of the child with the grandparents;
• The geographical location of the grandparents’ residence and the distance between the grandparents’ residence and the child’s residence;
• The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;
• The age of the child;
• The child’s adjustment to home, school, and community;
• The wishes and concerns of the child;
• The health and safety of the child;
• The amount of time that will be available for the child to spend with siblings;
• The mental and physical health of all parties- grandparents, parents and child;
• The willingness of the grandparent to reschedule missed visitation;
• Whether the grandparents have been previously convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication;
• The wishes and concerns of the child’s parents, which must be afforded special weight by the Court;
• Any other factor in the best interest of the child.

If you are considering filing for visitation rights with your grandchildren, it is advisable to consult with a family law attorney.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Cleveland Family Law Attorneys

Cleveland Domestic Attorneys

Cleveland Grandparents Custody Rights Attorneys

Cleveland Child Custody Attorneys

Cleveland Visitation Rights Attorneys

Cleveland Grandparents Visitation Rights Attorneys

In the case, Michele Hobbs and Kelly Mullen, a same sex couple, decided to have a child.  A male friend agreed to donate his sperm and Mullen became pregnant through an in vitro fertilization procedure.

The women acted as co-parents.  The women shared the financial responsibility of the in vitro fertilization process, Hobbs was present when Mullen gave birth, the women created a ceremonial birth certificate listing both of them as the baby’s parents, Mullen executed a will, naming Hobbs the guardian of the child, as well as a health care power of attorney and general durable power of attorney for the child, naming Hobbs as the child’s agent. Mullen acknowledged that she considered Hobbs to be the child’s co-parent in each document. 

The custody issues began when the couple broke up after several years.  Mullen moved away with the child and Hobbs filed a complaint for shared custody and a motion for visitation with the Court.

The question before the Court was whether the conduct of Hobbs and Mullen created an agreement for permanent shared legal custody of the child. In Ohio, a parent can give up his paramount right to custody of his child through a contract or agreement.  The Court found that there was no such contract in this case, despite the actions of the couple indicating an intent to co-parent. The Court went on to state that the best way to safeguard the custodial rights of the non-genetic parent would have been to create a written agreement or contract that stated how custody was to be shared and the degree to which it would be revocable or permanent. 

Bear in mind, however, that even if the Court had found that Mullen gave up her paramount right to custody of the child, the Court would still need to decide whether Hobbs was a suitable person to be a custodian of the child or whether shared legal custody was in the child’s best interest, in order for Mullen to have been granted custodial rights.

Takeaway- Before becoming parents, same sex couples should have an agreement drafted which specifically states that the genetic parent acknowledges his or her paramount right as a parent and permanently relinquishes that right and specifically how custody is to be shared during the relationship and upon the event of the couple breaking up.  Due to the importance of this document, it would be a good idea to have a lawyer draft it.  Same sex couples may also wish to explore a cohabitation agreement in regard to property division in the event of the couple’s separation. See http://www.randallperla.com/cohabitation.html

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Cleveland Family Law Attorneys

Cleveland Same Sex Parents Attorneys

Cleveland Same Sex Couples Attorneys

Cleveland Cohabitation Agreement Attorneys

First, the Court will determine which property is separate property and which is marital property.

Separate property means any of the following: an inheritance received by a spouse during the marriage; any property acquired by a spouse prior to the date of marriage; passive income and appreciation acquired from separate property by one spouse during the marriage; property acquired by a spouse after a decree of legal separation; property excluded by a valid antenuptial (also known as prenuptial) agreement; compensation to a spouse for personal injury (with the exception for loss of marital earnings and compensation for expenses paid from marital assets); any gift made after the date of marriage that is proven to have been given to only one spouse.  Moreover, in order to be awarded a spouse’s separation property, he or she must be able to trace the property to its separate source.

Marital property means any of the following: any property owned by either or both of the spouses that was acquired during the course of the marriage unless it falls into one of the categories of separate property; all income and appreciation on separate property that occurred during the marriage as a result of labor, money, or in-kind contributions.

Once the Court has determined which property is marital and which is separate, the Court will divide the property equitably between the spouses. Usually this means an equal division of marital property and an award of the separate property to its respective owner.  However, if the Court determines this would not be an equitable outcome, it can divide the marital property in an unequal fashion and award a spouse’s separate property to the other spouse.  

The Court must consider a number of factors when making the property division including: the duration of the marriage; the assets and liabilities of the spouses; the desirability of awarding the family home or the right to reside there for a reasonable period of time to the spouse with custody of the children; the liquidity of the property to be distributed; the economic desirability of retaining intact an asset or an interest in an asset; the tax consequences of the property division; the costs of sale, if it is necessary that an asset be sold; any retirement benefits of the spouses; any other factor that the court finds to be relevant and equitable.

One reason why the Court may decide to award a spouse’s separate property to the other spouse is if it determines that a division of the marital property would be impractical or burdensome.  Another reason the Court may award separate property to the other spouse or award a greater than equal amount of marital property would be if a spouse engaged in financial misconduct, like dissipating, destroying, concealing, not disclosing or fraudulently disposing of assets.

As you can see, there is no sure thing in terms of property division in a divorce.  Although the presumption is that separate property will be awarded to its separate owner and marital property will be divided equally, there is a lot of room within Ohio law for the Court to order otherwise.  In addition, in order to be awarded separate property, you have to be able to show that it is separate by tracing it to its separate source.  For these reasons, it is wise to be represented by an attorney.
Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Divorce Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Domestic Relations; Family Law; Divorce; Alimony; Marital Agreements; Marital Property Distribution; Marital Property Law; Marital Property Settlements; Matrimonial Law; No Fault Divorce; Qualified Domestic Relations Orders (QDROs); Restraining Orders; Uncontested Divorce

Should Arnold’s extramarital affair affect his divorce proceedings? Should Maria be awarded a greater amount of spousal support or a greater share of the marital property to compensate her for Arnold’s impropriety?

These questions are not limited to Arnold and Maria.  Arnold is the not the first, nor the last spouse to have an extramarital affair or presumably be the cause of the end of a marriage.  Many of our clients who feel that their spouse is to blame for the end of their marriage ask our office the same question.  In Ohio, the answer can be quite unsatisfying to many people.

While it is not an abuse of discretion for marital misconduct, like adultery, to be considered by the Court when making an award of property or spousal support (alimony), meaning an Appeals Court wouldn’t make the Trial Court “redo” the divorce proceedings, it is not required and uncommon, with two exceptions.  Evidence regarding marital misconduct will be heard if it is needed to prove that there are grounds for the divorce or to show that there is financial misconduct.

In order to be granted a divorce, a party must be able to show grounds, or a legal reason, for the divorce.  While there are numerous “fault” grounds for divorce like adultery, extreme cruelty, gross neglect of duty and habitual drunkenness, there are also “non-fault” grounds available like incompatibility and living separate and apart without cohabitation for one year.  If the parties agree to “non-fault” grounds, then the Court generally will not entertain evidence to prove “fault” grounds.  So, for example, if the parties agree that they are incompatible, then the Court is not generally going to allow evidence to prove that the Husband was having an extra-marital affair. Hence, many parties are able to avoid having their dirty laundry aired in Court by stipulating to a “non-fault” basis for divorce like incompatibility.

Ohio statutory law does explicitly permit the Court to make a greater award of marital property to one spouse upon a finding that the other spouse has engaged in financial misconduct, including the dissipation of assets. Courts have used this law to “reimburse” one spouse, so to speak, for the money the other spouse spent on a girlfriend or boyfriend on the side, drugs, gambling, etc.

So to summarize: Ohio Courts can consider martial misconduct, like adultery, when dividing marital property in a divorce or awarding spousal support (alimony), however generally they will not. An Ohio Court will hear evidence to support grounds for a divorce like adultery, extreme cruelty, gross neglect of duty, or habitual drunkenness, but if the parties agree that they are incompatible or have been separated for over a year, this is avoided. If a spouse spent marital funds on an extra-marital affair, drugs, gambling or the like, the Court may “reimburse” the other spouse for their loss by awarding her a greater amount of the marital property.

Does Ohio have it right? Should an extra-marital affair, a gambling or alcohol problem or other troubling behavior affect the division of marital assets in a divorce? What do you think?

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Divorce Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Local Rules state that all new Applications to Determine the Custody of a Child or Motions for Parenting Time or Motions to Modify the Allocation of Parental Rights and Responsibilities must be referred to mediation.  However, a party can request to be exempted from mediation in any of the following situations:

• Cases where one party has been convicted or pled guilty to domestic violence within the past two years or when a civil protection order is in effect;
• Cases in which the physical distance between the parties is so great that it isn’t practical for them to participate in mediation;
• Cases in which one of the parties is mentally ill;
• In emergency situations requiring an immediate hearing;
• Cases where the parties have reached an agreement and executed an Agreed Judgment Entry.

2.  You May Wish to Speak to an Attorney before Attending Mediation.

Before you attend mediation, it is a good idea to explore what exactly you want and what a good outcome would be for you.  An attorney can review your case and give you guidance as to what a Court would likely order. That way you can confidently enter an agreement during the mediation if the appropriate offer is made or confidently say no to a poor offer. It is also good to know that if you are unable to reach a satisfactory agreement in mediation, you have an attorney waiting in the wings who is ready to represent you in Court.

3.  You Don’t Have to Agree to Anything.

I will write it again for emphasis, YOU DO NOT HAVE TO AGREE TO ANYTHING! If you and the other party cannot come to an agreement, your case will go through the normal judicial process. You are entitled to have a Court make a determination on your case if you are not happy with what the other party is offering.

4.  Agreements Reached Are Binding.

Just because you are not in a Court of Law doesn’t mean the Agreement you reach isn’t binding.  Make no mistake about it, any agreement you sign during the course of mediation is binding as an Order of the Court.  That means that you cannot later change your mind and if you choose to disregard the Order, you could be held in contempt by the Court and subjected to fines and/or imprisonment. So, don’t sign anything unless you are absolutely sure!

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Family Law Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

2. Do not pay child support directly to the other parent! Money paid directly to the other parent will be considered a gift and will not go towards your child support obligation.

3. Check how much the order is for. The amount will differ depending on whether you are providing health insurance for the child or not. If you are not providing health insurance then you will be required to pay cash medical support.

4. Check the Computation Worksheet to see whether the numbers are accurate. If the numbers are not accurate, you may need to object to the order by bringing an action in juvenile court within 30 days of the issuance of the order.

5. Consider whether there are other reasons why your child support should be lower. Ohio law states that the Court may decrease or increase your child support from the amount calculated on the Computation Worksheet based on a number of factors, including special and unusual needs of the child; extended parenting time or extraordinary costs associated with parenting time; disparity in income between the parents; benefits that either parent receives from remarriage or sharing living expenses with another person; the relative financial resources, other assets and resources and needs of each parent; the responsibility of each parent for the support of others; among other factors. If any of the factors apply to you, you may wish to object to the order by bringing an action in juvenile court within 30 days of the issuance of the order.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Child Support Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

2. Gather supporting documentation for factors that necessitate adjustments (reduction) to your income and child support including union dues, uniform fees, court-ordered child support paid for other children, court-ordered spousal support paid to another spouse, amount of local income tax, child care expenses, etc.

3. Go to the Hearing. You need to be there to provide all your supporting documentation and answer any of the Hearing Officer’s questions.

For information on what to do once you’ve received an Administrative Order for Child Support and Medical Support See http://www.randallperla.com/blog/5-things-to-do-when-you-receive-an-administrative-order-for-child-support-and-medical-support/

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Child Support Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com

Is there a Court Order, a Divorce Decree or an Order from Juvenile Court,  that states that you have custody of your child or visitation at specific times?

Yes, There is a Court Order:

If so, and your Ex is in violation of that order, then the first goal is to obtain their compliance.  How to obtain compliance is a strategic decision that depends on your Ex.  However, you may need to file a motion with the Court called a Motion to Show Cause requesting that your Ex be found in contempt.  If your Ex is found in contempt, you may be awarded attorney’s fees expended as a result of your Ex’s failure to comply with the Court Order and your Ex may be subject to fines or imprisonment.  Beyond compliance, you may wish to seek a modification of the Court Order giving you more time with your child or naming you residential parent and legal custodian rather than your Ex.

No, There is No Court Order:

If you are currently married, then you and your spouse are both considered custodians of your child and you both have an equal right to your child.  However, if your spouse currently has your child and won’t permit you to see him, you may need to file for Divorce in order to obtain Court intervention.  Otherwise, you may be headed for an ugly confrontation with your spouse that puts your child in the middle.

If you are not married and you are the mother, you are considered the custodial parent of the child unless and until the Court orders otherwise.  A father has no right of visitation unless there is a Court Order saying so. However, once the father has established paternity and files for custody with the Court, he is on equal footing before the Court when the Court makes a custody determination.

If you are not married and you are the father, you must establish paternity and file for an Allocation of Parental Rights and Responsibilities with the Court. You have no rights to see your child until you have an order of the Court stating so, regardless of whether or not you pay child support.  See post http://www.randallperla.com/blog/what-unmarried-parents-should-know-about-child-custody/ for more information.

Elizabeth L. Perla, Esq.

Law Offices of Randall M. Perla

Cleveland Family Law Attorneys

19443 Lorain Road

Fairview Park, Ohio 44126

Phone (440) 333-2503

Fax (440) 333-9650

perlalaw@wowway.com

www.randallperla.com