When should a caregiver seek legal custody of a minor?
For many Ohio families, a child’s biological parents are not his/her primary caregiver. Grandparents, aunts, uncles, adult siblings often step in and informally raise a child. This may happen if biological parents struggle with alcohol or drug addiction, poor mental health, are incarcerated or are otherwise unfit to parent.
Many caregivers do not realize that they should formalize their role as legal custodian if they are caring for the child for an extended period. Below, we explore the process and benefits of petitioning the court for legal custody.
If you are the child’s legal custodian, you have the authority to make significant decisions on their behalf. This could be decisions impacting their education, medical care, housing or religion.
Without legal custody, you cannot make many crucial decisions about their upbringing, such as enrolling the child in school. Not only does it place a greater burden on you as a caregiver, but it also negatively impacts the child who depends on your decision-making abilities.
Seeking legal custody
To gain legal custody of a child, you must prove to the Ohio family law court that the biological parent is unfit. They will not consider giving you legal custody unless the current parent is deemed unfit to care for the child. Typically, the court wants to keep children with their biological parents unless there is a material reason to not do so.
If the parent is deemed unfit, then the court will evaluate whether it is in the child’s best interests for you to be awarded legal custody. It is crucial for the child’s best interests to be placed at the center of every decision.
Legal custody vs. adoption
Petitioning for legal custody is not the same thing as filing for adoption. If you adopt a child, the biological parents lose their parental rights. Legal custody can be permanent, or it can be temporary. You may act as the legal custodian for a period of time while their parent is unable to be physically or emotionally available for the child. If the biological parent can return to their parenting duties, they can petition the court to regain legal custody.
That being said, do not view legal custody as a temporary order. The court wants children to have stability and a consistent caregiver. In many cases, legal custody will hold until the child reaches the age of 18 and can legally make decisions on their own. Even if the biological parent petitions the court to reinstate legal custody, they may not be awarded custody unless they can prove that they are now fit to parent.
The process of establishing legal custody can be complex. A family law attorney can provide the guidance your family needs.
Shawn: Now we are going to get some professional advice from an attorney. This is Susan Suriano. She is representing The Suriano Law Firm and today she is here to talk about legal custody issues some of you may be familiar with. Good to see you.
Susan: Thanks for having me.
Shawn: Absolutely. Let’s talk about what are some of the reasons people would be having issues like this.
Susan: So when we talk about legal custody we’re talking about people who are third parties to this child. Not the biological parents. I see people all the time, for whatever reason, are informally caring for a child. It could be a grandmother, aunt, uncle, and that is who is considered a third party.
Shawn: Ok. So what happens if you are in that situation where all the sudden you find yourself taking care of a child that is not your own. Do you have to get legal representation? What should you do in those instances?
Susan: So if somebody is going to care for a child for any kind of extended period of time, it’s pretty necessary to have that legalized. And so you would petition a court for legal custody and what that is going to do is allow you to enroll that child in school. It’s going to allow you to make medical decisions for that child. If you don’t have those things and you are just caring for this child informally, you’re going to hit a lot of roadblocks so it’s very important to have that formalized.
Shawn: Now it’s formalized, but is it finalized? I mean in that case, are you the legal parent?
Susan: You are. You are the legal custodian. A question i get a lot is, is this a temporary order? When you have grandparents caring for children they don’t necessarily want to have this idea of a final order. You have temporary orders that can get issued during the process, but once that order is final it’s final. The court doesn’t want to see children ping pong back and forth. So if you are going to petition a court for legal custody, you have to understand that you very well may have this child until that child emancipates.
Shawn: Yeah. So there is really no way you turn that around? Say a mother or father was just incapable of taking care or they’re incarcerated or something like that. They have to petition? Can they get full custody or is that rare?
Susan: The difference between legal custody and say adoption is that in a legal custody situation, the parental rights are not severed. So what that means is, if you have a parent, let’s say for example who had an addiction issue and now has been sober, turned their life around, is in a place to truly care for this child, they can petition a court and ask for custody. Both ways. When a third party is asking for legal custody, it’s a high bar. When a parent is asking for custody back from a third party, it’s a high bar and so it’s possible, but i would encourage people to seek legal counsel, because there are a lot of issues you have to try to comply with and there are a lot of statutory and case law things that you have to present to the court for that to happen.
Shawn: Very complicated. Is it mostly the court making the decision on what they think is best for the child?
Susan: So when you are petitioning for legal custody the very first issue is that you would have to show that the biological parent is unfit. If they are considered unfit or unsuitable then the court is going to look at now, if the third party is in the best interest of the child. So the very first thing though is seeing if that biological parent at this point in time is unfit to parent. That’s a legal term and there are a whole bunch of stuff that goes into that, but that is step number one. Best interest of the child is number two.
Shawn: Takeaway is get legal help.
Susan: It’s very important. It’s very important.
Shawn: It sounds very complicated, but it can be done.
Susan: It can be done and it should be done in many situations.
Shawn: Good stuff to know. If you’d like more information, go to thesurianolawfirm.com or call them at 614-792-7800. We appreciate all the information you just gave us, Susan.
Susan: Of course. Thank you so much.