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Frequently Asked Questions


This site provides frequently asked questions and answers about topics for each of our firm's practice areas. The content is intended as informational only and does not constitute advice from our attorneys. The FAQs are not a subsitute for obtaining legal advice from an attorney.

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Family Law FAQs

Adoption in Ohio

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What is the difference between an agency adoption and a private adoption?

In an agency adoption, the child is placed with the agency after a court hearing or after the birthparents execute an irrevocable consent. Therefore, the agency can decide who should adopt the child, and is not legally obligated to choose the adoptive parents preferred by the birthparents. However, agencies typically try to honor the birthparentsí wishes.

In a private, attorney-arranged adoption, the birthparents select the adoptive family and the child is placed with the prospective adoptive couple following a court placement hearing. Assuming the home study of the adoptive family proves satisfactory, the child is released to the adoptive couple upon court approval. The child may be placed only with the family chosen by the birthparents.

Some courts require an agency to be involved, even in attorney-arranged adoptions. In such a case, the attorney handles all necessary paperwork and the agency accepts the birthparentsí surrender of the child.

How are adoptive parents selected?

Prospective adoptive parents prepare "life books" providing the birthparents with information about themselves. Once the birthparents select potential adoptive parents, the attorney or agency contacts the potential adoptive parents.

Can birthparents place the baby with an adoptive couple without a court hearing?

Not in Ohio. Ohio requires that application be made with the court before a child can be placed in an adoptive home.

What is the difference between a closed and an open adoption?

A closed adoption is the "traditional" adoption, in which neither the birthparents nor the adoptive parents know each otherís identity, and do not communicate with each other after the adoption.

Generally, in an open adoption, birthparents and adoptive parents exchange information and agree to maintain some contact after the adoption. The degree of post-adoption contact varies according to the partiesí comfort levels. However, even if one party fails to comply with the open adoption contract, the adoption will not be jeopardized.

What must the birthparents do once they have decided to place a child for adoption?

The birthparents should contact an adoption agency or an attorney who specializes in adoption. They will be asked to provide information about the type of adoptive family they prefer, and will receive information about available and appropriate families. With help from the attorney or the agency, the birthparents choose the adoptive family, and the attorney or agency contacts the family. Once the child is born, the appropriate paperwork is filed, a court hearing is held, and the child is placed with the adoptive parents.

What must prospective adoptive parents do once theyíve decided to adopt?

Prospective adoptive parents must compile a "life book" to give to an adoption attorney or an adoption agency, and often are asked to complete a questionnaire. A home study is conducted to determine if the adoptive parents are suitable. The prospective parents then must wait to be selected.

Once the child is born, the appropriate paperwork is filed and a hearing is held in court. After the hearing, the child is placed with the adoptive couple. After the prospective parents have received the child, they will file a petition for adoption along with a request for a new birth certificate. The new birth certificate will name the adoptive parents as the childís birthparents.

Can a birthparent stop the adoption after a placement occurs?

Yes, if the birthparent petitions the court before the adoption is final, and shows that the placement was made under duress, fraud, or that the adoption would not be in the childís best interest. The court will hold a hearing to determine if it is in the childís best interest for the birthparent to withdraw the consent to adopt.

Can an adoptive parent stop the adoption after a placement occurs?

Yes, with court approval, if a request is made before the adoption is final. The birthparents may find a new prospective adoptive family or keep the child.

What legal rights and responsibilities will I have if I adopt my husband's child from a previous marriage?

Step-child Adoption creates a relationship between the adopting step-parent and the child that is the same as if the child were born to the step-parent. The legal relationship between the child and the "other" natural parent (the one not married to the adopting step-parent) is terminated. A decree of adoption is permanent. In the event of a divorce, the adopting step-parent will be responsible for the child support and is qualified to seek custody and/or visitation. The child is also eligible to inherit through the adopting step-parent. In cases where the child is adopted by his or her step-father, the child's last name can be changed to the step-father's last name. Following an adoption, a new birth certificate is issued for the child, recording any change in last name and listing the adopting step-parent as the child's natural parent.

Where does the step-child adoption take place?

Step-child Adoptions take place in the court of common pleas in the county where: 1) the child resides; or 2) the person seeking the adoption (the step-parent) resides; or 3) the natural parent resides.

How do I proceed if I wish to adopt my step-child?

To start a step-child adoption, you (the "petitioner") would file a Petition for Adoption, which requires basic information about the identity and circumstances of the step-parent and the child to be adopted. In some Ohio counties, a Supplemental Petition containing additional information (such as information about employment, military service, previous marriages, and other children) also must be filed.

What happens after the Petition for Adoption is completed?

The Petition for Adoption must be served upon the step-child's "other" natural parent. Both natural parents must sign a written form consenting to the adoption. If the "other" natural parent does not consent to the adoption, the adoption cannot take place.

Are there any exceptions to the rule that the "other" parent must consent to the adoption?

Yes. There are two exceptions to this rule. If the "other" natural parent has failed, without justification, to 1) communicate with the child, or 2) financially support the child, for a period of one year before the filing of the adoption petition, that parent's consent is not required and the adoption can proceed. Other exceptions may apply to "putative fathers" and parents whose parental rights have been terminated by a juvenile court.

Are there any other requirements after the Petition for Adoption is signed?

Yes. These requirements are clearly spelled out by the probate court. An "assessor" assigned by the court will visit the home where the child will be living, then report to the court his or her opinion about the suitability of home for the child. Also, other documents are required, such as letters of reference from the petitioner's employer, friends, acquaintances and/or clergy. These are all sent directly to the probate court. In addition, the petitioner must obtain a medical report from a physician, and a criminal record check, including fingerprinting, must be performed. Finally, the court will conduct a hearing, where the child, the petitioner, and the petitioner's spouse will be interviewed. After the hearing, the court will issue a judgment entry (or decree) of adoption. The judgment entry may be "interlocutory," or temporary. A temporary decree will become final automatically after six months. In some cases, the court may simply issue a final decree at the conclusion of the hearing. Once an adoption becomes final, it is extremely difficult to overturn.

Does the "other" natural parent have any legal rights after the step-child adoption is finalized?

No. After an adoption the "other" natural parent has no legal right to visit the child. The child will no longer inherit through the "other" parent or his/her family. The "other" parent no longer has an obligation to support the child. Any and all legal rights or duties the "other" parent has regarding the child are terminated.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Child Custody

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How does a court decide whether to order shared parenting or order one parent to have custody of the children when a marriage ends?

To determine whether shared parenting is in the best interest of the children, the court considers many factors, including:

* the parentsí ability to cooperate and make joint parenting decisions;
* each parentís ability to encourage contact and the sharing of love with the other parent;
* any history of, or potential for, child or spousal abuse or other domestic violence, or parental kidnapping by either parent;
* where the parents live in proximity to each other (for practical shared parenting reasons); and
* the recommendation of the childís guardian ad litem, if applicable.

For cases in which shared parenting is not in the best interests of the children, the court will select a parent (the "residential parent") to have custody of the children. The court will grant parenting time rights to the other parent.

I am going through a divorce. At what age can my seven-year-old son choose whether he wants to live with me or with his mother?

Ohio law does not specify an age at which a child may choose his or her own living arrangements. Rather, the court looks at the custody issue on a case-by-case basis, and custody determination is based on a number of factors, including:

* the wishes of the childís parents;
* the wishes of the child;
* the childís relationship with parents, siblings, and any other person who may significantly affect the childís best interest;
* the childís adjustment to home, school and community;
* the mental and physical health of all those involved;
* the parentsí likelihood of honoring and facilitating court-approved parenting time rights or visitation and companionship rights;
* failure of either parent to make any past child support payments;
* either parentís previous conviction or guilty plea for a criminal offense involving an abused or neglected child or domestic violence, or evidence that either parent has acted in a way that resulted in a childís abuse or neglect;
* denial by either parent of the other parentís right to parenting time;
* either parentís establishment of a residence, or a plan to move, outside the state.

The court is not allowed to give a parent preference because of that parentís financial status.

How and under what circumstances may a child choose which parent will have custody?

As always with regard to children, the court must determine what is in the childís best interest. The childís living arrangement preference is only one of many factors that may be considered by the court in determining what is in the childís best interest. A parent may ask the court to interview the child to find out the childís preference, and the court may decide to permit such an interview. The interview is not done in open court, but rather, in the judgeís or magistrateís chambers. The child meets with the judge or magistrate and other court personnel as appropriate, but the childís parents are not present at the meeting.

What, if any, guidelines are followed during an interview with a child "in chambers"?

The court (judge or magistrate) will first determine the reasoning ability of the child. If the court determines the child does not have sufficient reasoning ability, then the child will not be asked his or her wishes with regard to custody. If the court decides the child does have sufficient reasoning ability, the court must then decide if there are any special circumstances that would suggest the childís wishes should not be considered. Assuming the child has sufficient reasoning ability and there are no special circumstances, the court will then ask the child about his or her own wishes regarding custody.

Does the court always follow the childís wishes?

Not necessarily. The court still must determine whether it is in that childís best interest for custody to be granted to the parent chosen. The court also must consider many other factors to determine what is in the childís best interest. The wishes of an older, more mature child are often weighed very heavily unless there is a negative reason why the child prefers one parent over the other (e.g., lax rules or supervision, substance abuse issues, etc.).

I am divorced and have custody of my children. What should I do if I want to move?

Ohio law requires you to file a notice of intent to relocate with the court that issued the custody order. The notice of intent to relocate must include your new address unless this is otherwise prohibited by a court order. The court will send a copy of the notice to relocate to the non-custodial parent.

My ex-spouse does not want me to move with our children. What should I do?

If a non-custodial parent objects to the relocation after receiving the notice of intent to relocate, the court in which the notice was filed will conduct a hearing to determine whether a modification of the parenting time schedule may be made to accommodate the relocation. For example, if an increased geographical distance between the parents makes weekly or bi-weekly parenting time impossible, then the court may allow the children to spend a long summer vacation and most school breaks with a non-custodial parent to compensate. Ohio law provides that a court may allow such a modification if it is determined to be in the childrenís best interest.

How does a court determine if a modification of the parenting time schedule to accommodate relocation is in the childrenís "best interest"?

Ohio law provides that a court must consider several factors to determine whether such a modification is in the childrenís best interest.

These factors include, but are not limited to:

1) the reason for the anticipated move, such as employment opportunities or remarriage;
2) the distance that a relocation will put between the children and the non-custodial parent;
3) the involvement of the childrenís extended family, such as grandparents, aunts, uncles and cousins;
4) the non-custodial parentís relationship with the children;
5) the parentsí ability to communicate and cooperate with each other about matters relating to the children; and
6) the financial, physical and emotional ability of the parents and the children to travel for parenting time purposes.

I am a divorced parent, and my ex-spouse, who has custody of our children, wants to move. What are my rights?

Once you receive the notice of intent to relocate from the court, you must request a court hearing to determine whether it is appropriate to modify the parenting time schedule to accommodate the relocation. If a court determines that it is appropriate to make such a modification, the court will then determine an appropriate parenting time schedule. If the court determines that it is not appropriate to modify the current schedule, then your spouse will not be able to move with the children to any location that will make it impossible to follow the current schedule.

Why would a court deny a parentís request to relocate?

Ohio law provides that modification of a parenting time schedule to accommodate a relocation will not be allowed if the move would not be in the childrenís best interest. Relocation requests may be denied for many reasons including the following:

1) there is no legitimate reason for the move;
2) there is significant local involvement of the childrenís extended family; and
3) there is evidence that the relocating parent is unable or unwilling to cooperate with the parenting schedule.

What happens if a court denies a request to relocate?

If the custodial parent decides to move with the children despite the courtís denial of the request to relocate, then the custodial parent is in violation of the court order. The non-custodial parent may then ask the court to hold the custodial parent in contempt, order the return of the children, and grant custody to the non-custodial parent.

If the custodial parent decides to move anyway, but without the children, the court may issue an order granting custodial rights to the original non-custodial parent, and parenting time to the other parent. In either of these scenarios, the law requires the court to base its decision on the best interest of the children.

If the custodial parent decides not to relocate, the prior court order regarding parenting time will continue to be in force.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Child Support

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What can be done if child support payments are not made?

All support orders must be secured in one of three ways. Most common is the wage-order (garnishment of the payor's income source or bank account). Self-employed persons have bond orders (a requirement to post a cash bond, which is used if the payor misses a payment. The payee is paid from the bond, and the payor is then called in to reimburse the bond fund). A "reporting" order is used for unemployed parents. If a parent is not working at the time the child support order is issued by the court, then that parent is required to report regularly to state what he or she is doing to find work, and to report any income received or job obtained.

Any person involved in a support order has a support officer at the Child Support Enforcement Agency (CSEA). Without cost, the CSEA officer will attempt to enforce a support order by filing contempt motions on behalf of the payee and by garnishing wages or bank accounts.

Certain sources of income can be usurped by the CSEA agency to meet past due support. For example, any tax refund, company bonus or similar lump sum of money received by a delinquent payor can be taken to pay overdue child support.

There are now "teeth" in the law which prohibit renewal of certain licenses for those who are delinquent in paying their child support obligations. For instance, recreational, professional and drivers' licences cannot be renewed if a license-holder owes delinquent child support.

May one parent prevent a child from seeing a parent who doesn't pay child support?

No. A parent who deliberately denies court-ordered parenting time rights may be considered in contempt of court, which is punishable by a jail sentence, a fine, attorney fees, and court costs. Also, if the parent who is denied parenting time seeks a change of custody, the custodial parent's deliberate withholding of parenting time rights may be an important factor to the court in deciding who will receive custody. Depriving a parent of time with a child is not one of the ways to get legal help in collecting child support.

May a parent whose rights of parenting time are denied withhold child support from the custodial parent?

No. In the same way that a custodial parent may not deliberately disobey court-ordered parenting time rights in order to attempt to collect child support from a non-paying parent, the non-custodial parent also may not willfully disobey a child support order. Withholding support payments may be considered contempt of court, which is punishable by a jail sentence, fines, attorney fees, and court costs. Also, if the parent who withholds child support seeks custody, the deliberate non-payment of support may become an important factor in deciding that issue. The law provides remedies for denial or interference with parenting time. Depriving a child of support is not one of them.

How do I locate an absent parent?

Federal law provides that the local child support enforcement agency may use the federal parent locator service, and state laws may allow the use of certain state agency records.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Divorce, Dissolution, and Annulments

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What is the difference between a divorce and a dissolution?

"Divorce" and "dissolution" are two different legal actions used to terminate a marriage. In a dissolution, the spouses must agree that the marriage is over and should be terminated. The couple also must agree to divide their assets and agree on such issues as child custody, child support, spousal support, and parenting time. A dissolution will not be granted when the parties cannot agree on all the issues. When spouses cannot agree, the marriage must be terminated by divorce.

Divorce is based on the concept of a fault and is considered an adversary proceeding. A spouse must allege one of the eleven grounds for divorce. That is, one spouse asks for a divorce from the other based on a wrong committed against the first; this wrong becomes grounds for divorce. Having said this, at least two of the grounds for divorce are considered to be "no-fault" provisions. These are "living separate and apart without cohabitation and without interruption for one year" and "incompatibility, unless denied by either party."

Are the child support guidelines just guidelines?

The term "guidelines" may be misleading. The Ohio Child Support Guidelines are more than just "guidelines" to be used in determining a child support obligation. They are the very means by which a child support obligation is calculated in Ohio. Ohio law further provides that the amount of child support calculated using the guidelines is presumed to be the correct amount of child support due. However, courts are allowed to deviate from the calculated amount if that amount would be unjust or inappropriate and not in the best interest of the child.

Can a parent collect unpaid child support after the child turns 18 and the support order has expired?

Yes. The fact that a parent's obligation to pay support has terminated does not prevent the other parent from trying to collect past unpaid support. Also, it does not prevent the court from holding any person in contempt for failing to pay any previous support order.

Can my ex-wife's new husband adopt my child without my permission?

If a parent has maintained communication with the child and has kept up-to-date with child support payments, it is unlikely that a step-parent adoption will be allowed. However, if a parent fails to provide support or fails to communicate with the child without a valid reason for more than a year, the court might consider that adoption by a step-parent is in the best interest of the child. Even in this case, though, the adoption cannot proceed unless the natural parent is notified and given a chance to object and explain why there had been a failure to communicate or provide support.

If an adoption occurs, it will terminate all legal relationships between the adopted person and his or her biological parent and relatives. Also, the natural father would no longer have the duty to support his child; the adopting step-parent would become responsible for the care and support of the child.

My fiancť and I plan to get married in a few months. Can we put together an agreement before the wedding that will protect the money and property each of us will bring into the marriage?

Yes. Agreements of this nature are called "prenuptial agreements." In addition to protecting your separate pre-marital assets, a prenuptial agreement outlines what the terms will be your marriage should end in divorce or dissolution.

What are the advantages and disadvantages of having a prenuptial agreement?

The agreement will provide specific terms that will govern the relationship as well as a possible future breakup. If only one of the parties favors creating a prenuptial agreement, or if parties disagree about what the terms should be, discussions about the terms of a prenuptial agreement may cause conflict before a marriage. However, such discussions may bring to light issues that likely would surface later, and having an agreement in place may help prevent future disagreements about each partyís rights and duties.

How far in advance of our wedding should we sign a prenuptial agreement?

The greater the time between the signing of the contract and the wedding date, the stronger the agreement. It is wise not to present an agreement for signature on the eve of the wedding, when your attention will be focused elsewhere and you have little time to thoroughly consider the agreement.

Can the same attorney represent both of us?

No. An attorney is required by ethical guidelines to represent only one of you. Also, each of you should have individual counsel so that your interests will be equally protected.

What type of information must we disclose to each other in order to make the agreement enforceable?

In order for a prenuptial agreement to be enforceable, each of you must fully and accurately disclose your pre-marital assets and liabilities. It is wise to provide each other with a copy of your income tax returns and a balance sheet very early in the process. These documents also should be attached to the agreement as exhibits.

How are prenuptial agreements enforced?

The domestic relations division of a common pleas court generally enforces such agreements. In the event of a divorce or dissolution of marriage, either party may ask the court to enforce the agreement as part of the divorce or dissolution filing. However, the court will enforce a prenuptial agreement only in the context of a divorce or dissolution. If there are provisions of a prenuptial agreement that have to do with matters other than a marital breakup, it might be wise to include within the prenuptial agreement itself a procedure for resolving any conflicts over these matters (through mediation or arbitration, for example).

What type of agreements will most likely not be enforced?

Courts are not likely to enforce agreements where there is not a full and accurate disclosure, where there is fraud, misrepresentation, undue influence, duress, fraud and/or terms of the agreement are either contrary to law or against public policy. In addition, agreements that are presented on the eve of the marriage are likely not to be enforced.

May we include terms about how our marital assets and liabilities might be divided if the marriage doesnít last, and about spousal support, child custody and support?

Yes. There is no limitation on what you may include in your agreement. However, not all terms may be enforceable. It is a good idea to include a "severance clause," a statement saying that, even if one or more provisions are determined to be unenforceable, the remainder of the terms should be found to be enforceable.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Emancipation

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What is a "minor"?

In Ohio, a minor is someone who has not yet reached the age of 18, and, as such, is supported by a parent or guardian who is responsible for his or her actions. A minor has neither the rights nor the responsibilities of an adult. For example, a minor cannot vote, serve on a jury, or get credit in his or her own name. Someone who is 18 years old, but continues to be a full-time student at a recognized high school, is no longer a minor and has the legal rights and responsibilities of an adult, but the responsibility for his or her support usually remains the duty of a parent or guardian until graduation.

Iím 17 years old and I still live with my parents, but Iíve dropped out of school, and I make enough money at my job to be able to support myself now. Am I emancipated?

No. If you are still a minor or have not yet finished high school, your parents have a duty to support you and can be held responsible for your actions (such as your failure to attend school, or for contracts you might make such as for telephone service or an apartment). If a juvenile or domestic relations court has previously issued a child support order for your financial support (as part of a divorce or similar proceeding), your parents may file a motion asking the court to relieve them of their duty to support you financially. However, even if the court agrees, the courtís order only relates to your parents' duty to support you financially, and does not address other ways in which your parents still may be responsible for you. For instance, they may be found liable if you are not enrolled in school, a GED program or a job, and they still must give their consent before you can receive most kinds of medical treatment. If you marry or join the military service while still a minor, however, you would be considered emancipated. In such a case, your parents would no longer be responsible for supporting you financially; nor would they be liable for your actions.

Does becoming pregnant or having a child mean a minor is automatically emancipated?

No. While getting married generally constitutes emancipation, becoming pregnant and having a child does not. The difference is that a person who marries generally intends to substitute the parentsí support and responsibility with the spouseís support and responsibility. However, if a minor becomes pregnant and has a child but does not marry, her parents continue to be responsible for her and she may continue to rely on their support. Please note that the babyís father also may have support obligations in such a situation.

When is a court likely to become involved in an emancipation issue, and how does this happen?

A person who wishes to "become emancipated" cannot do so by petitioning the court, as there is no provision for such a petition in Ohio. If a court has previously issued a child support order, parents may ask the court to relieve them of their duty to support a minor child financially, but this does not constitute that childís emancipation.As explained above, the parents still may be held responsible for the childís actions even though they no longer support the child financially.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Grandparent's Rights

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My son has two children with his soon-to-be ex-wife. A friend said I might be able to get court-ordered visitation with my grandchildren, but another friend said that I couldn't. Can I ask the court for visitation?

Yes. In Ohio, grandparents can see court-ordered visitation if the child's parents are unmarried, if the child's parents file for a divorce or dissolution or legal separation, or if one of the child's parents has died. Ohio courts must consider a parent's wishes when deciding whether to award visitation, and the court must also consider whether grandparent visitation would be in the child's best interest.

I have court-ordered visitation with my five-year-old granddaughter. Can this visitation be taken from me?

Under certain circumstances, your grandparent visitation can be terminated. Visitation rights can always be modified or terminated by the court. You may lose court-ordered visitation if one of the parents establishes that there has been a change in circumstances and that the best interests of the child make it necessary to terminate those previously granted visitation orders. Or (assuming your sonís ex-wife has custody of your granddaughter), if your granddaughterís mother remarries, her new husband may wish to legally adopt your granddaughter. If this step-parent adoption is granted, your right to visitation is terminated and the child becomes a "legal stranger" to you because under current law, there is no difference between stranger adoptions and step-parent adoptions when it comes to the rights of relatives to maintain familial ties. However, House Bill 144 of the 125th General Assembly has been pending for a couple of years; if approved, it would allow grandparents to seek court-ordered visitation after a step-parent adoption.

My daughterís two minor children were adopted by their step-mother because my daughter had not paid child support for more than a year. I had visitation with them before the adoption, and my ex-son-in-law promised nothing would change, but I havenít seen them since. Is there anything I can do to formally re-establish my visitation with my grandchildren?

Not at this time. Some grandparents have tried to re-establish visitation after adoption, but Ohio courts have found that they do not have the authority to grant post-adoption visitation. Above-mentioned House Bill 144, which is now pending in the Ohio Senate, would allow grandparents and possibly other relatives to seek court-ordered visitation after a step-parent adoption.

How long does a stepparent adoption take?

A parent and step-parent must first file a petition for adoption. The court generally will not issue an adoption decree until 30 days after the adoption is finalized, assuming the child has lived in the home for at least six months. Also, the adoption becomes finalized, in many Ohio courts, only after the parent and step-parent have been married for at least one year.

My grandchild's step-father has filed to adopt my grandchild. He told me there was nothing I could do to stop him. Is this true?

He is probably right. In Ohio, grandparents who only have visitation rights do not have standing to protest their grandchild adoption. However, you should consult an attorney to discuss possible options. Not all step-parents terminate a grandparent's ability to see their grandchildren after an adoption.

My attorney says there is nothing I can do to protect my grandparent visitation rights from a possible step-parent adoption. After it took so long to establish, how can my visitation rights be taken away from me and my grandchild?

Currently in Ohio, what your attorney says is correct. Courts have continued to ask the legislature to address the issue of preserving grandparents' rights to visitation in step-parent adoptions. Some states have created laws that allow post-adoption visitation to continue, but Ohio courts cannot force the Ohio legislature to act. You can write to your legislator, asking that a statute be passed that helps protect grandparent visitation.

My daughter had a child when she was 15. We have basically raised this grandson, while our daughter has finished school and gone to work. Now our daughter lives with her boyfriend, who is not the father of our grandson, and we are still raising the child, who is now five. My husband and I are both retired, and our income is limited to Social Security and my husbandís retirement. Our grandsonís father has never seen him or paid us any support. Our daughter gives us a small amount of money occasionally, and she comes over to visit with her son almost every weekend. Weíve been thinking about adopting our grandson so we can receive benefits for him. Does Ohio law allow us to adopt him?

Yes. Grandparents can adopt their grandchildren in Ohio. A home-study must be conducted, a petition for adoption must be filed, proper notice must be given, and the adoption must be in the childís best interest. Once the adoption is completed, the childís birth certificate will be changed to show you and your husband as the childís parents.

Must my daughter and our grandsonís father file so we can adopt?

No. Only the people adopting the child, in this case you and your husband, can file the petition to adopt. Generally, if the mother or father have not visited, talked with, or sent any mail (including e-mail) for at least one year, then you do not need their consentóor, if they have visited or communicated, but have not given you any money or items for the child, then you do not need their consent. In your case, since the father has neither communicated nor paid support for more than one year, you most likely will not need his consent. In your daughterís case, the amount of money she provides in support may determine whether or not you need her consent. Some courts say that any support payment, no matter how small, means the parentís consent is necessary. Other courts say that a small amount of money cannot be considered support, and consent is not necessary in cases such as yours. Ask your lawyer how the courts in your area treat such cases.

Can the biological father or his parents get visitation once weíve adopted our grandson?

No. Once youíve adopted your grandson, you, rather than your daughter or the childís biological father, are his legal parents. The biological father and his parents are no longer considered related to the child, so they cannot get court-ordered visitation. Depending on the circumstances, though, you may choose to allow visitation.

What is the effect of our adopting our grandson?

Once you have adopted your grandson, you are his parents. This means that he will inherit from you, not as a grandchild but as your son. Further, you are now the persons ultimately responsible for raising and caring for him.

Can our grandson receive benefits through us?

Yes. Your grandson can receive any benefits that a naturally born child would have through you. This means he may qualify for social security and health care benefits, depending upon your individual situation.

What is a caretaker power of attorney and a caretaker authorization affidavit?

A caretaker power of attorney (POA) and a caretaker authorization affidavit (CAA) are both documents that allow grandparents to exercise parental authority over their grandchildren who live with them. However, neither a POA nor a CAA changes legal custody or child support. These can be changed only by a court order after certain legal requirements have been met. Also, the law creating the POA and the CAA does not address health insurance coverage for children. Rather, coverage is determined by the policy of the particular insurance company.

What parental authority is given in a POA or CAA?

Grandparents are authorized to provide care, physical custody, and control of the child, including the ability to enroll the child in school, obtain school information, and consent to school-related matters. They also may consent to medical, psychological, and dental treatment. Neither the POA nor the CAA gives grandparents the authority to consent to the marriage or adoption of the child.

What is the difference between a POA and a CAA?

A POA is signed by the parent, guardian, or custodian, who transfers authority to the grandparent. A POA can only be created in certain circumstances, including when the parent, guardian, or custodian is: incarcerated, physically or mentally ill, or homeless; being treated for substance abuse; or when the parent, guardian, or custodian believes that that the POA is in the child's best interest. By contrast, a CAA is not signed by the parent, guardian, or custodian, but, rather, by the grandparent, who assumes authority when the parent, guardian, or custodian is absent after efforts to locate have been unsuccessful.

What is required for a POA or CAA?

The POA or CAA must include particular language and be completed on a specific form as provided in the statute. The required signatures must be notarized by an Ohio notary. The POA or CAA must then be filed, within five days after it is notarized, in the juvenile court of the county where the grandparent lives or in another court that has authority over a child, such as a domestic relations or probate court. Certain other information about the grandparent and the childís custodial history ("child custody affidavit") must be filed along with the POA or CAA. Either the POA or CAA can be sent to the court. A filing fee is not required. Once the POA or CAA is filed, no hearing or court approval is necessary. The court may, however, report to child welfare authorities any information that indicates the grandparent has been convicted of or is responsible for child abuse or neglect, or that the POA or CAA is not otherwise in the childís best interest.

How long does a POA or a CAA last?

Either a POA or a CAA can be terminated at any time by a parent, guardian, or custodian. The POA or CAA also ends when the child moves from the grandparent's home, when a court orders termination, or when one year has passed. When a POA or CAA ends, the grandparent must give written notice to the court, the child's school, medical providers, and certain other persons that the POA or CAA is no longer in effect. After a termination, a second or subsequent POA or CAA can be filed, but a court hearing and approval are necessary to make the documents effective.

Can a POA or CAA be created so a child can go to a school in the grandparentís district?

Although grandparents can use both a POA and a CAA to handle many school matters, neither document can be created simply to take advantage of athletic or academic programs that are available in the grandparentís school district. If a POA or CAA is created for this purpose and not for the purposes outlined in the law, the POA or CAA is void from the start. Also, a grandparent who creates a POA or CAA for an invalid purpose can be subject to prosecution for falsification, a first-degree misdemeanor.

I have custody of my six-year-old grandson. What should I do to make sure he would be provided for if I can no longer care for him?

If you have responsibility for your minor grandchild, you must plan carefully so that he is taken care of if something happens to you. Because grandparents are older during the grandchildís minority years, planning becomes all the more important. Basic planning includes:

* a Will that designates who should care for your grandson in the event of your death;
* a general durable power of attorney designating someone to make financial decisions for you if you are unable to do so;
* a health care power of attorney designating someone to make health care decisions if you are unable to do so;
* a "HIPAA" authorization form that allows the release of medical information for you and your grandson;
* "Medicaid triggers" in your documents to allow Medicaid planning so that your assets can be arranged to enable you to qualify for Medicaid for yourself, your spouse, and your grandson.

I received a sizeable inheritance a few years ago. Should I do any planning to make sure that, when I die, my grandsonís inheritance from me wonít be swallowed up by taxes?

If you have considerable assets, additional advanced planning may be necessary. For example, grandparents must be aware of the generation-skipping transfer (GST) tax, a federal tax that is in addition to the usual estate tax. The GST tax applies whenever anyone gives assets to someone who is two or more generations younger. Currently, the GST tax rate is between 45 percent and 46 percent, depending upon the year of the transfer. You may pass down as much as $2.0 million without paying the GST tax. There are several techniques you can use to pass down assets for the benefit of your grandson without paying the GST tax. For example, you may wish to do the following:

* Arrange to have your grandsonís tuition and medical expenses paid for directly. As long as the payment is directly to the educational or medical provider, no GST or gift tax is triggered.
* Set up a "grandchildís trust." A grandchildís trust is irrevocable and must be used for the benefit of a particular grandchild. At the grandchildís death, the assets are included in the grandchildís estate for estate tax purposes. Transfers of up to $12,000 each year for the grandchild may be free from tax. If you are married, this amount may be doubled.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Guardian Ad Litem (GAL) in Juvenile & Domestic Relations cases

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What is the difference between a "guardian" and a "guardian ad litem"?

For example, parents are the natural guardians of their minor children, an aunt may be appointed guardian of a minor child who has lost both parents, or a friend may serve as guardian for the property of a temporarily disabled person. A guardian is appointed by the court, and must follow certain procedures, such as providing the court with regular reports, but is not required to have specific training to carry out this role. The guardianship may last for a short time or indefinitely.

The role of a guardian ad litem (sometimes called a "next friend," or "GAL") is more specialized than that of a "regular" guardian. A GAL is specifically responsible for protecting the interests of a minor who is in some way involved in a lawsuit, generally only until the legal proceedings are completed. All GALs must have training specific to their role in representing a childís best interests, though they come from all walks of life (e.g., attorneys, social workers, teachers, business professionals, etc.).

Who appoints a GAL?

Usually the judge or magistrate will appoint a GAL to serve on a case. In domestic relations cases, where custody of a minor child or children is an issue, the attorneys often will agree that a GAL should be appointed, and will ask the court to appoint one. Similarly, probate and civil division courts will appoint a GAL where the childís interests in the litigation are potentially contrary to his or her parentsí interests in the matter. When there are several children whose interests need to be protected in a particular case, usually only one GAL is appointed to represent all of the childrenís interests. If a conflict arises, then additional GALs may be appointed.

What kinds of cases utilize GALs?

Any cases involving a child who has been neglected or abused, or is considered dependent (e.g., one whose parents are unable to provide care due to mental or physical illness) will likely result in the appointment of a GAL. Also, GALs may be appointed in cases involving custody disputes between parents or other family members, or in cases involving visitation problems or reunification of parents and children after a long absence.

What is the role of a GAL?

A GAL is an independent advocate for the child, and must make recommendations about what is in the childís best interest.In a custody dispute, the GAL should meet with the child alone in a comfortable setting and also observe the childís interactions with each parent and any siblings. Also, the GAL should obtain the childís school records and any pertinent medical or counseling records, and may wish to speak with other parties or professionals who have been involved with the child.

In cases involving allegations of dependency, neglect or abuse of a child, a GAL will review the records and reports surrounding the allegations, meet with the child and parents separately and attend all court hearings. In all cases, GALs must submit written reports to the court regarding their investigation and recommendations. They also may arrange for home visits to any past and possible future residences of the child. They will also accompany the child to speak with a judge or magistrate if an interview is necessary.

Who may serve as a GAL?

In many jurisdictions, laypersons (sometimes called "court-appointed special advocates," or "CASAs") may serve as GALs in dependency, neglect or abuse cases. Attorneys also may serve as GALs on these cases as well as in private custody disputes.

Can a GAL gain custody of my child?

No.

Who pays for the GALís services?

Most laypersons serving as GALs are volunteers and donate their time to the cases. Attorneys also often agree to serve on a pro bono basis. Some courts have funding that pays for the non-volunteer GALs in dependency, neglect and abuse cases or on cases where the parents are indigent.In private custody disputes, the attorney GAL is paid by the parents in a pro-rated share determined by the court.

How long does a GAL serve on a case?

For most cases, the GAL serves only a few months until the investigation and legal proceedings have been completed. For other cases, the GAL could serve for a period of years until the child reaches the age of majority. If a case is resolved and reopened at a later time, the same GAL may be reappointed to serve on the new matter.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Spousal Support

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Iím starting divorce proceedings against my husband. How much spousal support am I eligible to receive?

It depends. Since there is no "black letter law" on spousal support, it must be determined on a case-by-case basis.

How does that work?

Under Ohio law, the court must consider 14 factors when determining how much monthly spousal support, if any, will be awarded. In most cases, the two most important factors are the length of the marriage and the income of each party.

What factors does the court consider in setting the amount of support a spouse should receive after a divorce is finalized?

In determining whether spousal support is appropriate and reasonable, and in determining the amount, terms of payment, and duration of spousal support, the court, by law, must consider a number of factors. These include the income and relative earning abilities of the parties; the ages and physical, mental, and emotional conditions of the parties; the retirement benefits of the parties; the length of the marriage; the standard of living which was established during the marriage; the extent to which it would be inappropriate for the custodian of a child to seek work outside the home; the educational background of the parties; the property and debts of the parties, including any court-ordered payments; the contribution of each party to the education, training, or earning ability of the other; the time and expense necessary for the person seeking spousal support to acquire education, training, or job experience; the lost income production capacity of either party resulting from that party's marriage responsibilities; and the tax consequences for each party of an award of spousal support. The court may also consider any other factor that it finds to be relevant and fair. The law does not require the court to consider who is at fault, or who filed the divorce.

Does the court follow any general guidelines in making spousal support awards?

Some magistrates and judges use a general rule of thumb that allows one yearís worth of spousal support for every three or every five years of the marriageís length. It is not uncommon for the court to include, in the spousal support award, provisions stating that the spousal support will stop if the former spouse remarries or cohabits with another person. There is no general rule used when determining the amount of spousal support that should be awarded. The award amount is determined on a case-by-case basis and largely depends upon each partyís wages, the discrepancy between the wage amounts, and each personís monthly necessary expenses. Other factors also are considered, including the education, earning capacity and health of each spouse.

Does the court always find that spousal support must be paid?

No. If the parties were not married for a long time and their incomes are fairly equal, it is entirely possible that the court will award no spousal support to either party. And, of course, the parties can always agree that neither one will receive any spousal support.

Is it always the wife that is entitled to spousal support?

No. If the marriage lasted a long time and the wife has historically earned a higher income than the husband, the husband may be eligible to receive spousal support for a period of time.

How can a spouse obtain financial support and protection from harassment while divorce/dissolution proceedings are still going on?

A court may award either party temporary spousal support and allocate the responsibility to pay debts before a divorce becomes final. While a divorce action is pending, a court may also issue restraining orders prohibiting harassment by a party. Since a dissolution of marriage proceeding can only be initiated upon the full agreement of both parties, matters involving support and the conduct of each party before the final court hearing would need to be worked out by the parties.

A court must issue a temporary protective order the same day as requested if a spouse has committed acts of domestic violence, whether or not a divorce is filed.

What can be done if spousal support payments are not made?

Anyone failing to comply with court-ordered spousal support payments may be subject to being brought before the court at a contempt-of-court proceeding and asked to present evidence concerning the allegations of nonpayment. If found in contempt of court, a person ordered to pay spousal support must pay court costs, reasonable attorney fees, and may be sentenced to a jail term.

Can spousal support continue after one or both parties is remarried?

Generally, spousal support will end upon the death or the remarriage of the person receiving the support. It is possible under certain circumstances, however, that the obligation to pay spousal support may continue beyond either of these events. Spousal support is sometimes guaranteed by life insurance should the payor die before support is terminated. It is also possible for a court to retain the ability to modify a spousal support award upon a showing of a substantial change in the circumstances of either or both parties. It is very important that an attorney familiar with Domestic Relations Law be consulted concerning these matters in drafting the divorce orders.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Visitation Rights

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What can I do if I am being prevented from spending parenting time with my children, even though the court ordered the parenting time?

Enforcement of parenting time is often a more complicated process because it may involve not only the relationship between parents but also between parents and children. Parents who feel that a current parenting order is no longer in the best interest of a child should ask the court to modify the order and not simply refuse to comply with it. If you are the parent who has been prevented from exercising parenting time with your children, you may file a motion which would require the other parent to show cause as to why the court-ordered parenting schedule is not being followed. If a non-residential parent later seeks to change a prior parenting order, one of the factors the court must consider is whether the residential parent has continuously and willfully denied the non-residential parent court-ordered parenting time.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Criminal Law FAQs

DUI/DWI

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What is the difference between DUI, DWI, OMVI, and OVI?

The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs.

The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired. However, Ohio law no longer uses the DUI and DWI acronyms because, in 1982, Ohio enacted a law that refers to driving under the influence of alcohol or drugs as "OMVI," an acronym for Operating a Motor Vehicle Impaired.

Because a more recent change in Ohio law removed the requirement that a vehicle must be "motorized," the current acronym that refers to driving under the influence is "OVI" for Operating a Vehicle Impaired. It is now a crime in Ohio to operate almost any vehicle while impaired. This includes not only motorized "vehicles," but also, bicycles, horse-drawn carriages and several other types of "vehicles."

How much alcohol can I consume before driving without risking an OVI conviction?

If you are over 21 years of age and your Blood Alcohol Content (BAC) and breath alcohol content (BrAC) is .08 or greater, you are considered to be "operating a vehicle impaired." The .08 figure refers to the concentration of alcohol in your breath or in your blood.

The fact that the legal limit for breath and whole blood are the same is not a coincidence. The breath machine equates the amount of alcohol in your breath to the probable amount of alcohol in your blood. Although state legislatures have generally accepted this principle, many toxicologists and other scientists do not necessarily accept it as scientifically sound.

Is the .08 limit the only one I have to worry about?

No. There are also "legal limits" for the concentration of alcohol in a personís blood serum or plasma and urine. For a urine sample, you will be over the "legal limit" if the alcohol concentration in your urine sample is .11 or greater. While Ohio still considers this a valid way to determine alcohol content, many states have done away with urine testing because handling and testing procedures have produced errors.

If a blood serum or plasma sample is taken, the legal limit is .096. A test of blood, whether whole blood, serum or plasma, is the most accurate, but such tests must be completed according to Department of Health rules to be admissible in a court proceeding. Also, improper blood testing procedures still may yield inaccurate results.

What happens if I test well over the legal limit for alcohol?

Ohio currently has enhanced minimum penalties for so called "high tier" test results (alcohol levels that are considerably higher than the legal limits). The high tier test results are .17 for breath and blood, .204 for blood serum or plasma, and .238 for urine. The enhanced penalties for "high tier" offenders double the minimum jail time requirement.

If Iím under age 21, are the legal limits different?

Yes. If you are under 21, the legal limit is much lower: .02 for breath or blood, .03 for blood serum or plasma, and .028 for urine. This means that even the slightest amount of consumption of alcohol can place you over the legal limit.

Can I be convicted of OVI if I refuse to take a test of my breath, blood or urine?

Absolutely! The law presumes that, if you operate a vehicle and are found to be at or over the "legal limit," you are guilty of OVI. However, Ohio law allows you to argue against this presumption of guilt, within limits, in court. If it is proven that the alcohol level in your system is at or over the legal limit, you can be convicted of OVI even if you show no other signs of being under the influence.

If you refuse to allow law enforcement to measure the amount of alcohol in your breath, blood or urine, you still may be convicted of OVI based upon evidence of impairment such as poor driving performance, alcohol odor, slurred speech, red and glassy eyes, and staggering and poor performance on field sobriety tests. Further, Ohio law has made it a criminal offense to refuse to submit to testing once you have been arrested for OVI.

If I am stopped by the police after Iíve had a few drinks, what should I do?

First, pull to the right side of the roadway as soon as you can do so safely. Keep your hands on the steering wheel. Do not begin to search for paperwork until the officer asks you to. After providing your identifying information, you have a right to politely inform the officer that you will not answer any further questions without first speaking to an attorney.

What are police trained to look for when enforcing OVI (drunk driving) laws?

An officer on OVI enforcement is trained to look for various signs of drunk driving, including:

1) signs of impairment exhibited by a person while driving a vehicle (called the "vehicle in motion" phase of enforcement);
2) signs of impairment upon the initial "personal contact" with the driver;
3) signs of impairment noticeable during the "pre-arrest screening" phase, which encompasses standardized field sobriety testing and preliminary breath testing.

What are " signs of impairment?"

During the "vehicle in motion" phase, the officer looks for signs of impairment such as reckless driving, weaving, going left of center, driving too slowly, braking erratically, or stopping for no apparent reason, although almost any traffic violation may alert an officer to look for signs of impairment. In addition, an automobile accident that occurs during the late night or early morning hours will raise suspicion of impairment.

If I am stopped for a suspected drunk driving offense, what will an officer be looking for?

Once you are pulled over, the officer will look for signs of impairment based on his or her observation, including sight, hearing and smell. The officer may look for bloodshot eyes, soiled clothing, fumbling fingers, alcohol containers in your car, or any other unusual actions. Slurred speech, admission to drinking, inability to answer a question while performing a physical task, inconsistent responses and unusual statements also will alert an officer. The odor of alcoholic beverages, cover-up odors, or any other unusual odors may raise the officerís suspicion.

Am I under arrest if the officer asks me to exit my car?

No. The officer will be watching for a driverís difficulty in opening the car door, using the door for balance, leaning against the vehicle and swaying or staggering.

Once you are out of the car, the officer may ask you to take field sobriety tests. If you opt to take the tests, your performance on the tests can be used in the officerís determination to arrest you.

The officer may offer you a preliminary breath test (PBT). A PBT is a breath test performed with an instrument that approximates your blood alcohol content (BAC). While you are not required to submit to this test and a PBT result generally is not admissible at trial, your refusal to submit to a PBT may be used as evidence of your guilt.

If Iíve said I wonít answer further questions without an attorney, and the officer tells me to get out of the car, do I have to comply?

Yes. You must get out of the car if ordered to do so. If you do not, you could be charged with a crime.

What should I do if the officer wants to give me a sobriety test?

Once you are out of your car, you have the right to politely refuse all roadside sobriety tests. You are not required to perform roadside sobriety tests and it is not a crime to refuse to perform the roadside sobriety tests.

What happens if the officer arrests me?

If you are arrested, you will be asked to submit to one or more chemical tests (breath, blood and/or urine) to measure your BAC. You can choose whether or not to submit to a chemical test, but you should be aware that, under certain circumstances, refusing the test itself may be a crime. Also, if you refuse to submit to a chemical test, you face the possibility of a longer administrative license suspension (ALS). Further, if you have been convicted of another drunk driving offense within the last 20 years, the mandatory minimum jail sentence may be doubled.

On the other hand, if you submit to a chemical test and test results show you were over the legal limit, you are more likely to be convicted of an OVI than if you refuse to take the test. In most cases, the test results will be used as evidence of your guilt. Also, if you take the test and you have a BAC of more than .17, the mandatory minimum jail sentence will be doubled.

Iíve heard that some cities in Ohio are tougher on OVI offenses than others. Is that true?

Yes; it is true that the codes of some Ohio municipalities are stricter than the State Code. When that is the case, the municipalityís code takes precedence over the stateís code. For example, the Columbus City Code has what is called a "lifetime lookback" period. This means that, in Columbus, any prior OVI, no matter how many years ago it was, will be considered when deciding penalties.

Iíve heard that I can be charged with DUI even if I am sitting in my driveway listening to the radio with the keys in the ignition, whether or not the car is running.

It is true that, under the old Ohio traffic law, you could be arrested for DUI ("Driving Under the Influence"). The current law (effective Jan. 1, 2004) refers to DUI as OVI ("Operating a Vehicle under the Influence"). Under current law, you cannot be arrested for OVI unless you cause or have caused your vehicle to move while you were intoxicated. If you came out of your house and hadnít driven the vehicle, but were just listening to the radio, you would not be guilty of OVI. Rather, you would be guilty of "physical control," a charge that has different, much less severe, penalties than an OVI charge.

What can happen to me if Iím convicted of an OVI?

It depends on whether this is your first, second, or third offense (or more) within a six-year period. If it is your first offense, you will lose your license for a minimum of 180 days, and you will have to spend at least three days in jail or in a 72-hour Driver Intervention Program (DIP). Some first offenders are required to go to jail in addition to the intervention program. Also, you can be fined up to $1000. There may be other penalties as well. The penalties become much greater for second and third offenses. If you get a fourth OVI within six years, it becomes a felony and your case will be heard in a common pleas court rather than in a municipal court.

If I plead guilty or am found guilty of an "OVI"under current law, can I get occupational driving privileges?

Yes. You actually can get more than occupational driving privileges. Under current law the term occupational driving privileges is replaced with limited driving privileges. Limited driving privileges under the new law may be given for employment, educational (to and from school), medical, alcohol treatment, and other court-ordered purposes.

What if I canít afford auto insurance?

If you canít afford auto insurance, then you canít drive. Ohio law says that, in order to drive a vehicle in Ohio, you must have liability insurance. If you receive a traffic ticket, you must show proof of insurance to either the police officer or the court. If you donít show proof of insurance, your license will be suspended by the Bureau of Motor Vehicles (BMV).

What does it mean to have your license suspended, cancelled, forfeited, and revoked?

All of these terms were used under the old law. Under current law, only the terms "suspended" and "cancelled" are used. Your license may be suspended, or taken away, for a short time or for the rest of your life, depending upon the nature of the offense and the "class" of the suspension. A license also may be cancelled if you fail to comply with the law (if, for example, you do not pay traffic tickets). Unlike a suspension, your license can be cancelled by the court without warning. The cancellation lasts only until you comply (pay your traffic tickets).

How do I know what type of suspension goes with each kind of traffic offense?

Under current law, there are two main types of suspensions: court suspensions and BMV suspensions. Numbers are used to identify court suspensions, and letters are used to identify BMV suspensions. Each number or letter represents a different length of suspension. For example, a BMV "Class F" suspension lasts only until you have met certain conditions (e.g., you can show proof of insurance), whereas a "Class A" suspension (e.g., for refusing, in three separate incidents, to take a chemical test to determine if you were driving while intoxicated) will last three years. A "Class 7" court suspension may last no more than one year, whereas if the court imposes a "Class 1" suspension (such as aggravated vehicular homicide committed while under the influence), you will lose driving privileges for the rest of your life. If you have an issue or question concerning a suspension, it may be wise to contact an attorney.

I was arrested for drunk driving for the first time last night, and the officer took my license. When can I get my license back?

It depends. If you submitted to a test to determine your Blood Alcohol Content (BAC) and your BAC was under the legal limit, the officer should not have taken your license, and it should be returned to you immediately. If the officer did not ask you to take a BAC test (if, for example, the test could not be administered), the law requires the officer to turn your license over to the court for disposition at your initial appearance. Your license may be returned to you at the initial appearance or, in some cases, the court may impose a suspension of your driving privileges under a "public safety" suspension.

If your BAC was at or above the legal limit, you have been placed under an Administrative License Suspension (ALS) for 90 days. The duration of the suspension will be lengthened if you are convicted of OVI (drunk driving). If you refused to submit to a BAC test, the ALS will be extended to one year, but if you are convicted of OVI, the length of this "refusal" suspension may be shortened. If you are convicted of OVI, the court must suspend your license for a minimum of six months and may suspend it for a maximum of three years.

When can I drive again?

If you did not refuse to submit to a BAC test, and your BAC was not at or above the legal limit, you most likely were not placed under an ALS and you should be able to drive immediately. If, however, you submitted to a test and your BAC was at or above the legal limit, you will not be eligible for even limited driving privileges for 15 days from the date of arrest.

If you refused to submit to a BAC test, you are not eligible for driving privileges for 30 days from the date of arrest. The time during which the court cannot grant driving privileges is commonly referred to as a "hard" suspension. In many courts, the judge will not grant privileges at any time before the case ends if you refused to submit to a BAC test.

If granted, the limited privileges are valid for the remainder of the suspension.

What kind of privileges can I get after my "hard" suspension is over?

Under Ohio law, the judge has broad discretion in determining whether or not to grant privileges, but the scope of the privileges is usually limited to occupational, educational, vocational and medical purposes, or for taking a driverís license examination and attending court-ordered treatment.

Can I get privileges that go beyond work and work-related trips?

It is possible, depending upon the judgeís interpretation of the law. A liberal reading of the law permits the court to grant limited privileges for a variety of reasons, while a strict reading does not.

I need to drive to and during work tomorrow. Can I get the court to take away the "hard" suspension?

A judge cannot grant privileges before the end of the "hard" suspension, but an ALS can be "stayed" (put on hold) by the court until the final disposition of the case. This would allow you to drive while the suspension is on hold. If you are subsequently convicted of OVI, the judge must impose the full suspension including the "hard suspension," and must give you credit for all of the days you have already spent under suspension, including credit for the "hard" suspension.

I refused to take the chemical test when I was stopped, but I was obviously drunk. Now I wish Iíd taken the test, since I know the penalty will be less severe. Can I somehow undo my refusal and the one-year suspension that goes with it?

Possibly. If you plead "guilty" or "no contest" to the OVI charge, then your refusal to submit to the chemical test is set aside ("vacated"). The judge, by law, must impose a court suspension for a period between six months and three years on a first OVI conviction. In most cases, the judge will impose the lesser six-month suspension and will grant credit for any time already served under the initial ALS suspension. This may shorten the suspension, but you will have an OVI conviction on your record. The length of the suspension should not be the sole factor in deciding whether or not to plead guilty. In most cases, having an OVI conviction on your record is much worse than having your license suspended.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Drug Crimes

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How does a drug court work?

A "drug court" is a program administered through a traditional court to manage cases involving certain types of drug-related crime. Those who are arrested for possession of drugs, and who otherwise meet the criteria, are screened for eligibility and enter the drug court program within a short time after arrest. If appropriate, they begin treatment within two weeks of arrest. While they live in the community, they must comply with intensive probation requirements. They meet frequently with case managers, must prove sobriety through urine testing, and must comply with all requirements set by the managers.

During the program, offenders must complete the case management plan and remain drug-free. They may obtain GEDs and/or employment, work with Children's Services to be reunited with any children, perform volunteer work, attend AA (Alcoholics Anonymous) and NA (Narcotics Anonymous) meetings, and do whatever is necessary to re-enter society as a sober, responsible person. While it would be legal to do so, program participants are not permitted to drink alcohol.

Offenders must appear in Court on a regular basis. If they fail to comply with the program (for example, by missing a meeting or testing positive for drugs), a series of graduated sanctions is invoked. For example, for the first sanction, they may sit in court for one day. Two days of community service are required for the second sanction, three days of jail time are required for the third sanction, and so on. As long as the offender is willing to try, he or she will not be removed from the program. Only those who leave the program voluntarily are considered failures. Some have asked to be sentenced to the six-month jail term in lieu of the program because they feel it is too difficult.

What are the main reasons for using a drug court instead of simply sending users to jail?

Jail and prison are costly punishments. Taxpayers spend upwards of $120 per day to incarcerate offenders. Punishing non-violent offenders in other ways helps to reduce taxpayers' spending for prison beds, and ensures that there is space in existing prisons for violent offenders.

Because incarceration alone has been shown to have little effect on drug addicts, other forms of punishment may be more beneficial. Without drug treatment, more than 70 percent of drug addicts will commit new crimes. Addicts who complete a drug court program are much less likely to commit new crimes. In fact, in most drug courts, the recidivism rate for drug court graduates is less than 10 percent.

Are there rewards for offenders who successfully complete a drug court program?

Yes. Participants appear in court to receive commendations for sobriety or other achievements. Also, the amount of their fines may be reduced. At the end of the program, there is a formal graduation ceremony acknowledging their successful completion of the program, at which time their respective cases are dismissed.

Isn't a drug court expensive?

A drug court is less expensive than traditional approaches in both the short and long term. There are immediate savings to the taxpayer in reduced police overtime for court appearances, lawyers fees for defendants who are unable to pay for their own attorneys, and in jail beds (which can be reserved for other offenders). In addition, prosecutors are able to devote more time to other cases, which frees the court dockets.

More importantly, long-term savings are realized through the rehabilitation of the offenders. Seventy-five percent of those who enter a drug court program graduate with sober lifestyles and are able to take care of themselves and their families. They are employed, paying taxes and participating in the community, and are caring for their children rather than neglecting them or leaving them to the care of the state. An offender who successfully completes a drug court program is not likely to be a repeat offender. Furthermore, the offender's children also are much less likely to become offenders, thereby ending the cycle of crime for many people.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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General

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I recently heard the U.S. Supreme Court had considered overruling the so-called "Miranda" warnings police give to suspects telling them about their Constitutional rights. Is that true?

Contrary to the predictions of many legal scholars, the U.S. Supreme Court reaffirmed its decision in Miranda v. Arizona in Dickerson v. United States. In this case, the Court recognized that "Miranda" warnings have become such a routine police practice that they have become part of our national culture.

Therefore, any statement given by a suspect during police questioning continues to depend on whether the police told the suspect that:

the suspect has the right to remain silent;
anything the suspect says can be used against him or her in a court of law;
the suspect has the right to the presence of an attorney; and
if the suspect cannot afford an attorney, he or she has the right to consult with a court-appointed attorney before answering any questions.

Does a suspect have to be at the police station before being warned about Miranda rights?

Police officers are required to give suspects Miranda warnings only when the suspects are being formally arrested and questioned at the same time. At a "formal" arrest and questioning, a suspect is not free to leave, but is held in police custody, and questioning is done in such a way that a reasonable person would have no choice but to submit to the officer's will.

Police do not have to give Miranda warnings to a suspect who is being questioned informally and is in police custody. For example, Miranda warnings are not triggered in the following situations:
roadside questioning of a motorist following a routine traffic stop;
a probationer's responses to questions from his or her probation officer;
information requested on tax or other government forms not obtained in the custodial setting.

If a suspect makes a statement that is not in answer to a direct question by police, is that suspect entitled to Miranda warnings?

According to the U.S. Supreme Court, "custodial interrogation" is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." In another case, the U.S. Supreme Court said that deciding whether a suspect has been "interrogated" depends upon whether the police have coerced or forced the suspect to speak.

However, police are not held accountable for "offhand remarks" that produce unexpected results. As long as the suspect isn't interrogated or coerced into speaking by some other method, any statement the suspect makes will be considered voluntary, even if it's an admission of guilt. Such a freely given statement can be used in court against the suspect.

What if a suspect gives up (or waives) the Miranda rights, not realizing what he or she is doing?

A suspect who waives the Miranda rights must understand those rights and must not be forced into giving them up. To decide whether a suspect's waiver of Miranda rights is valid, courts study the facts and circumstances of the case, including the suspect's background, experience and conduct. Confessions that are not provided voluntarily by suspects cannot be used in court.

If a suspect decides to start talking to police officers and then changes his or her mind, what must that suspect do or say in order to halt the interrogation?

A suspect must clearly declare that he or she no longer wishes to speak without an attorney present. Some courts have found that statements such as "maybe I should get a lawyer" are not usually enough to stop an interrogation. Nevertheless, most courts require that police officers must at least stop and clarify a suspect's intentions when the suspect responds in this fashion. It is always best to seek the advice of a qualified lawyer before being questioned by the police, regardless of your knowledge or involvement.

If one bit of evidence was collected illegally, does that mean an entire case must be thrown out?

No. Even if some unlawfully uncovered evidence is excluded, the defendant may still be convicted based on other evidence. And there are exceptions to the rule. For example, when unlawfully seized evidence would have been obtained anyway, that evidence may be used. Nevertheless, in some cases, a guilty defendant will go free. For example, a drug user will go free when the drugs found on his person (the only evidence against him) were found as the result of an unlawful search.

Why did the U.S. Supreme Court make the "exclusionary rule" decision in 1961?

To see the rationale for this rule, we can look at the situation before 1961. Earlier, the Supreme Court recognized that the Fourth Amendment did apply to states, but allowed each state to impose its own consequences for violations, through "private action" or through internal police discipline as monitored by public opinion.

Consider the shortcomings of "private action" (lawsuits) against the police. On one hand, if the unlawfully searched individual were innocent, how often would he or she want to sue the police and thereby publicize that he was the subject of suspicion? On the other hand, if the unlawful search turned up incriminating evidence against a disreputable individual, how likely is it that a jury would award him or her substantial damages for the unlawful search? How many attorneys are likely to want to take such a case? In a nutshell: innocent individuals are unlikely to sue, and disreputable ones may sue but are unlikely to win. Consequently, the prospect of such lawsuits will not do much to deter unlawful searches.

Then consider another possible remedy, the internal discipline of the police. Fellow police officers are only too aware that it is both very important and very difficult to obtain evidence, and they are often frustrated by the fact that they "know" someone is guilty, but cannot get the evidence necessary for a conviction. How effective is the police department likely to be in disciplining officers who break the rules to get evidence that might be used to take a "known" criminal out of circulation?

In contrast, with the exclusionary rule, police officers know that unlawfully obtained evidence will be useless, and that, if they break the rules, they may contribute to letting a criminal go free. As a result, they have a strong incentive to search for evidence within the limits of the law.

Are there any other rules similar to the exclusionary rule?

Yes. One is Ohioís statutory speedy trial rule. Under it, the state has a certain amount of time, depending upon the seriousness of the charge, to bring a criminal defendant to trial. If the rule is violated, the defendant is entitled to be discharged. It doesnít matter if the proof of the defendantís guilt is clear; if the defendant isnít brought to trial within time, he or she walks.

This rule is rarely applied, however, because criminal defendants are almost always brought to trial within time, unless they themselves waive their speedy trial rights.

The exclusionary rule and Ohioís speedy trial rule can be called "prophylactic" rules: because they impose harsh and certain consequences on violations, the police and other government agencies work hard to stay within the rules.

What, exactly, is expungement?

First-time offenders convicted of certain types of crimes can have their records "expunged" or sealed after their cases have been resolved. This means that these prior convictions are no longer in the public record. Records are expunged so that those who have not previously been in trouble with the law and have paid their debt for particular crimes can go on with their lives as though the convictions had never occurred.

If the records are only sealed, does this mean they can still be accessed?

Yes. The records are not destroyed and can be used by a limited number of persons and for a limited number of reasons. For example, if an employer asks if you have been convicted of a certain crime (say, theft) that might have a bearing on the position you are seeking (say, as a real estate office manager with access to clientsí house keys), then you would have to acknowledge the expunged conviction. Sentencing courts and law enforcement officials investigating later crimes also may use expunged records.

What kinds of criminal convictions generally can be expunged?

Felonies and misdemeanors other than motor vehicle violations or minor misdemeanors that do not fall into certain categories can generally be expunged, unless a criminal statute specifically states that a particular crime is not expungeable. Expungeable offenses include most types of theft and shoplifting, vandalism, trespass, criminal mischief, disorderly conduct and similar non-violent crimes.

What kinds of criminal convictions cannot be expunged?

Any offense requiring a mandatory prison sentence cannot be expunged. Such crimes include rape, sexual battery, corruption of a minor, sexual imposition, or obscenity or pornography involving a minor. Violent felonies and first-degree misdemeanors or those in which the victim is a child (under 18) likewise are not eligible for expungement. In addition, no driverís license and motor vehicle violations, nor bail forfeitures in traffic cases can be expunged. Since minor misdemeanors, such as possession of less than 100 grams of marijuana or certain disorderly conduct are not considered crimes, they also cannot be expunged.

Who qualifies for expungement?

First-time offenders who have committed crimes not falling in the "non-expungeable" category qualify. A first-time offender has had only one conviction. Most traffic and driverís license convictions are not considered previous convictions. Therefore, if you have had seven speeding tickets and one theft conviction, only the theft conviction counts and you would be eligible for expungement of the theft conviction.

How soon after an offense might I be able to apply for expungement?

If you qualify as a first-time offender for a misdemeanor offense such as shoplifing, you may apply for an expungement if one year has passed since the termination of your sentence. For example, if you were sentenced to two years of probation, you could file for an expungement one year after your last day of probation. If you were convicted of a felony like grand theft, you would have to wait three years after the termination of your sentence.

Assuming Iím a first-time offender and my offense is expungeable, how do I file for an expungement?

Generally, you may apply for expungement in the court in which you were sentenced, or, if you were convicted in another state or in a federal court, you may apply to a court of common pleas. Once you apply for an expungement, the court will set a hearing date. You usually will work with the probation department to prepare a report for the court to use in determining whether or not to grant the expungement. The prosecutor may challenge the expungement by filing an objection before the hearing date.

How does the court decide whether or not to grant me an expungement?

The court will perform a test to weigh your interest in clearing your name against the governmentís need to allow public access to your records. The court will review the probation report to see how you have behaved since the conviction. If the report shows that your crime was an isolated incident and that you have since shown a desire to get on with your life in a positive way, then the court will probably grant the expungement.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Juvenile Law

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At what age can a child be tried as an adult in Ohio and what is the process?

A child, defined as a person under age 18, can be tried as an adult only if the child was age 14 or older at the time of the offense. Nearly all such cases begin in juvenile court with a felony charge. The court must conduct hearings and make certain determinations before the child can be transferred to another court for trial. The process is sometimes referred to as bindover, transfer, waiver, or relinquishment proceedings. In some cases, the child must be tried as an adult. In others, the child can be tried as an adult only if the court orders it.

When is trial as an adult required?

Trial as an adult is mandatory in certain very serious cases: (1) when the charge is aggravated murder or murder, and the child is 16 or 17 and has been committed to an Ohio Department of Youth Services (DYS) facility; and (2) when the charge is a certain serious felony offense, and the child is age 16 or 17 and either has previously been committed to a DYS facility or used a firearm while committing the offense. If the court finds that these conditions exist and that there is probable cause to believe that the child committed the offense, the child must stand trial as an adult. There are also other limited circumstances in which the child must stand trial as an adult.

When can a court decide whether or not to try a child as an adult?

When the law does not require transfer, the court has a choice whether to try a child as an adult, but may do so only if the child was 14 years or older at the time of a felony offense. First, the court conducts a hearing to determine if there is probable cause that the child committed the offense. Next, the court orders an investigation, including a mental examination, and conducts another hearing, often called an "amenability" hearing, to decide whether or not the child is likely to be rehabilitated within the juvenile system, and whether or not the communityís safety requires that the child be subject to adult penalties. Some of the factors the court considers are age, physical and mental maturity, past attempts and future potential for rehabilitation, harm suffered by the victim, use of a firearm, and public safety.

What happens after a juvenile court orders the child to stand trial as an adult?

After the transfer is ordered, the court will set the terms of bail and order custody of the child to be transferred to the custody of the appropriate authority. The juvenile courtís authority over that case is then terminated. Once tried and if convicted, any sentence of incarceration is to an adult facility. Likewise, any probation is supervised by probation officers who supervise adult offenders.

Can other measures be taken when a youth commits a serious or violent offense?

If a childís case remains in juvenile court, there are other alternatives. When there are multiple charges, the court may impose consecutive sentences in a secure DYS facility. If a firearm was used in the offense and specified in the complaint, the child must be committed to DYS and must serve additional time, ranging from one to five years, for using the firearm. Lastly, in certain circumstances, the court may impose a "serious youthful offender" (SYO) sentence in which a child is given a traditional juvenile sentence as well as an "adult" sentence that is "stayed" or delayed. The child may not have to serve the adult portion of the sentence at all if he or she successfully completes the juvenile portion of the sentence. If the child is older than age 14 and commits certain conduct or offenses while serving the juvenile portion of the SYO sentence (indicating that rehabilitation in the juvenile system is not likely), the child can be sentenced to an adult correctional facility or to adult probation.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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Traffic Violations

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I know that I can get points for speeding. How does the state determine how many points I get?

Before January, 2004, when major changes in the traffic law became effective, some points were assessed based on a complicated formula. Now, points for speeding are based on how fast you were traveling.

What is the maximum number of points I can get for speeding?

Under the old law, if you were going 86 miles per hour (MPH) on a freeway and had three prior offenses, you would be assessed 12 points. Current law says that if you are driving 30 MPH or more over the speed limit, you will be assessed four points, regardless of any prior offenses. That also would apply if, for example, you were going 50 MPH in a school zone.

Do you always get points for speeding?

No. In order to get two points for speeding under current law, you must be going more than 10 MPH over the speed limit in a 55 MPH zone and more than five MPH in any other speed zone. For example, going 65 in a 55 MPH zone is speeding, and you may receive a ticket, but no points will be assessed against you.

What other offenses result in points?

There are other moving violations, such as failing to stop at a stop sign, going through a red light or making an illegal turn, that will result in two points being assessed against you. Offenses such as willful fleeing or eluding of a law enforcement officer, failing to stop and disclose identity at the scene of an accident, drag racing, driving under license suspension and driving under the influence of alcohol and or drugs are among the violations that will result in six points being assessed against you. There are other offenses in which four points may be assessed, such as underage drinking and driving, and operating a motor vehicle with willful or wanton disregard of property or person.

How long do the points stay on my record?

Any points assessed will stay on your record for a period of two years. If you accumulate a total of 12 points in a two-year period beginning on the date of the first conviction, your driverís license will be suspended for a period of six months. This is called a "Class D" suspension.

When I went to court for a speeding ticket once, the judge told me that I could take a course and have two points taken off my record, but that I could only do that once in my life. Is that true under current law?

Under current law, you can enroll in a remedial driving instruction course and have two points removed from your driving record, and you may take the course as many as five times in your life (although not more than once in any three-year period).

When can I take the remedial driving course to get two points off my record?

You may enroll in the course as soon as you get two points, and you must enroll before you have accumulated 12 points. If you wait until you get 12 points, you will be ineligible to take the remedial course.

Provided by the Ohio State Bar Association's "Law You Can Use" (www.ohiobar.org/pub/lycu)

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