divorce and child custody Matt Mishak Attorney Lorain County Ohio Elyria North Ridgeville

FAQ: Child Custody and Divorce

If one parent moves out and leaves the kids with the other parent, does it hurt the moving parent’s chances of getting custody at a later date?

 

In a word, yes.

Even when a parent leaves to avoid a dangerous or highly unpleasant situation, if the parent hopes to have physical custody at a later time it’s unwise to leave the children behind. The parent who leaves sends a message to the court that the other parent is a suitable choice for physical custody. Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children’s regular routines.

If a parent must leave the familial home (and wants to be the primary physical custodian), the moving parent should take the children along and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without that parent’s consent or knowledge.

Family law judges frown on a parent who removes the children from the home without seeking the court’s recognition. A judge may order that the children be returned to the family home, pending future proceedings to determine physical custody.

 

Are courts more likely to award custody to mothers than to fathers?

 

In the past, most states provided that custody of children of “tender years” (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children.

No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine child custody on the basis of what’s in the children’s best interests, without regard to the parent’s gender.

As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children’s daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what’s best for the children.

So if you think that you should have primary custody and that you can persuade the judge that it’s in the kids’ best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.

 

Does child custody always go to just one parent?

 

No. Courts frequently award at least partial custody to both parents, called “joint custody.” Joint custody takes one of three forms:

  • joint physical custody (children spend a substantial amount of time with each parent)
  • joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
  • both joint legal and joint physical custody.

 

Are there special issues if a gay or lesbian parent is seeking child custody or visitation rights?

 

In a number of states, a parent’s sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child.

As a practical matter, however, lesbian and gay parents — even in those states — may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent’s sexual orientation to deny custody or appropriate visitation.

If you are involved in a custody case and are concerned about bias against you because you are gay or lesbian, make sure you consult a lawyer about protecting your rights. 

 

Is race ever an issue in child custody or visitation decisions?

 

The U.S. Supreme Court has ruled that it is unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody.

In Palmore v. Sidoti, 466 U.S. 429 (1984), a white couple divorced, and the mother was awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstances. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision.

 

Who determines how much visitation is reasonable and fair?

 

When a court awards physical child custody to one parent and “reasonable” visitation to the other, the parent with physical custody is generally in the driver’s seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a significant amount of time with each parent.

Unfortunately, it sometimes translates into little visitation time with the noncustodial parent, resulting in disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children.

 

Is mediation the best approach to solving disagreements about child custody?

 

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle a dispute.

The mediator does not have the power to impose a solution on the parties but assists them in creating an agreement of their own.

In some courts, however, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement. If you’re concerned about whether the mediation is confidential or whether the mediator will be reporting to the judge, find out how your court does things before you get started.

There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.

  • Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
  • Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
  • Mediation enhances communication between the parents and makes it much more likely that they will be able to cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.

 

Original article on Nolo.com

 


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Ohio record expungement law Matt Mishak attorney Lorain County Elyria North Ridgeville

New Expanded Expungement Law in Ohio

In Ohio, expungement is the same as sealing a record.

 

Expungement is a legal process provided under Section 2953 of the Ohio Revised Code that allows one to have any and all references to a prior criminal conviction cleared and their court file sealed. The result of this process is as if you were never convicted of the crime.

 

BIG NEWS! Ohio is officially expanding its expungement law, effective October 29, 2018.

 

The new expungement law allows for a review for a person with up to five F4/F5 felonies and/or unlimited misdemeanors.

According to the new statutory makeup in ORC § 2953.32, persons with non-violent, non-sexual misdemeanors and/or felonies up to F4 or F5 may now be eligible for their records to be sealed by a court in Ohio.

Individuals who previously did not qualify to have records sealed might be eligible.

This new expungement law allows for the possibility of all records to be sealed.

 

There are still waiting periods related to the expungement requests following discharge:

 

  • Misdemeanors require a one year waiting period.
  • One F4/F5 Felony requires a three-year waiting period.
  • Two F4/F5 Felonies require a four-year waiting period.
  • Three to Five F4/F5 Felonies require a five-year waiting period.

 

These new laws will not apply to anyone with a F3 or higher felony conviction or those with a conviction which includes a sexual or violent offense, regardless of the result being a felony or a misdemeanor.

The court, of course, has the discretion to determine if a person qualifies for expungement of their criminal record.

Additionally, the prosecutor will be notified of the request and has the ability to object to records being sealed during a scheduled hearing.

 

Who is eligible for an expungement?

 

You qualify if you meet all of the conditions described in Section 2953 of the Ohio Revised Code, including:

  • The conviction you are trying to expunge is not one of the crimes precluded by law.
  • You were not subject to a mandatory prison term for the conviction.  (If you were sentenced to prison time, but you were eligible for community control/probation, you would still qualify.)
  • You have any of the following convictions or combination of convictions: one misdemeanor; or one felony; two misdemeanor convictions; or one misdemeanor conviction and one felony conviction.   (A series of 2 or 3 convictions out of the same case shall be considered one conviction under the expungement statute.) (Minor misdemeanors including most traffic offenses do not count as a conviction.)
  • The statutory waiting period has passed for the conviction you seek to expunge.
  • You have no current or criminal charges pending against you. 

 

Can’t I just represent myself and save money?

 

Expungement requires drafting and filing of a motion (a formal legal document asking the court to take a particular action). The expungement motion will be filed with the court that sentenced you, and it will also have to be served on the prosecutor in some cases, and the probation department.

At the expungement hearing, oral or non-oral, the court must be convinced through persuasion and demonstration that your rehabilitation has been obtained and that you are deserving of an expungement.

An expungement is a privilege and not a right. 

The court may deny your expungement if they question that you have met all the qualifications under the Ohio Revised Code, or the court is not satisfied that you have been rehabilitated.

 

Legal Reference: FindLaw.com


If you would like to learn if you are eligible or request additional expungement law information, contact Attorney Mishak today.

 


3d-printed guns Mishak Law Lorain County Elyria North Ridgeville Ohio

3D-Printed Guns: What You Need to Know

By now, you’ve probably seen all the news regarding the company Defense Distributed, more specifically its founder Cody Wilson and 3D-printed guns.

 

Issues surrounding 3D-printing firearms and firearms parts have recently come up in the Senate and been addressed by White House officials.

A few weeks ago, the Department of Defense settled its legal battle with the designer of 3D-printed firearms, allowing the company to re-release its CAD files to the public. That announcement sent state lawmakers scrambling in an effort to keep 3D-printed guns off the market. Eight states and the District of Columbia filed a lawsuit against the federal government (11 more states have since joined that lawsuit), and last week a federal judge blocked the publication of those blueprints.

According to Defense Distributed, the company who originally created a published the 3D plans, the blueprints had already been downloaded more than 400,000 times before they were removed for the first time in 2013, and while the company had re-uploaded the files to its site prior to the judge’s ruling, it has since blocked access to comply with the court order.

So, what does all this mean for you, the person who wants to 3D print a gun?

 

Gunned Down

Regardless of what a person may be able to publish on the Internet,” the NRA’s Institute for Legislative Action executive director Chris Cox asserts, “undetectable plastic guns have been illegal for 30 years.” In order to comply with this law, blueprints for 3D-printed guns still require a metal firing pin and a six-ounce piece of steel to enable metal detectors to spot the guns.

Plans for plastic guns also lack critical components, like bolts, barrels, stocks, or other parts, so they’re not firing live rounds hot off the 3D press. 

Additionally, California required that all 3D-printed guns be registered two years ago, and other states may have followed suit — so even if you manage to print and assemble a gun, you’ll probably need to register it like any other firearm.

 

All the Guns That Are Fit to Print

Currently, Defense Distributed’s website relating to its “Liberator” 3D-printable gun reads: “This site, after legally committing its files to the public domain through a license from the U.S. Department of State, has been ordered shut down by a federal judge in the Western District of Washington.” So, unless you downloaded the files pre-2013, snagged them in the short time between the settlement and the new injunction, or don’t want to go elsewhere on the internet for the plans, you’ll just have to wait on your 3D-printed gun until courts can balance the First and Second Amendment issues with the public safety concerns.

There are 3D printers in public colleges and public spaces and there is the likelihood of potential irreparable harm,” U.S. District Judge Robert Lasnik wrote last week, temporarily making publication of 3D gun printing files illegal under federal law. And you definitely can’t sell those guns, even if you can manage to make one.

Originally seen on FindLaw

 


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