Custody change because of death

[Chrisrain]

Can you clarify for me:

1) Is the mother of your son different from the mother of your daughters? I only ask, because if they all had the same mother, what you're asking (adoption) is rather callous.

2) Why was custody of your son changed 2 years ago? Was it by (then) mutual agreement? It kind of sounds like it wasn't your choice - so what caused the change? Again, I only ask, because depending on the reasons there could be more (or less ) hoops.

For now, try to be supportive of your son. He's going through a difficult time. And while you view your son's grandmother as an adversary, try to insert some compassion: her child is terminally ill. Try to imagine yourself in her shoes, and act with as much sensitivity as you can muster. Kindness may smooth things out. Or, if it doesn't, at least she won't have recent evidence of you being a thoughtless cad.

To start off, I absolutely will act kind and caring . Her health is number one thing here I want to be clear, I WANT her to beat this cancer . I unfortunately have to plan accordingly. I have helped her with her other children,(not mine) and also financially..Different mother's from my son. It was mutual agreement basically. I was in active addiction 3 years ago. I went to treatment. Since January 22, 2018 I have been in treatment. Since then I have had at least 400 clean urine screens consecutive with ZERO dirty screens. Since then I have been to court, with proof, and received full custody of my children. To this day I drop volunteerly and have never dropped dirty. Full time job, vehicles, house, everything is stable.

 

[Chrisrain]

Sometimes its better to actually know the law. If mother has not had more than de minimus contact in the last year and hasn't been prevented by the father saying no, then even if mom started visiting AFTER a stepparent adoption were filed, it doesn't matter. The law is very specific on that.

Thank you. I plan to file change of court motion and then proceed with step parent adoption. My question is, how do I prove she hasn't attempted to contact them but twice in an entire year?

 

[Chrisrain]

https://xxxxxxxxxxx. (Link removed)

 

[LdiJ]

Thank you. I plan to file change of court motion and then proceed with step parent adoption. My question is, how do I prove she hasn't attempted to contact them but twice in an entire year?

I don't think that you understand. Whether their mother has any custody or not, as long as she is alive, and objects, it is highly
unlikely that a judge would grant a stepparent adoption at this time. People have a constitutionally protected right to their children, and a judge cannot lightly overturn that right by terminating their parental rights. It has to be carefully and soberly decided, and most judges are going to err on the side of caution.

It would be a different story if she were completely out of their lives for 4 or 5 years (no contact at all, no child support, no phone calls etc.).

And yes, I am aware that generally the law allows for a one year period of time, but that doesn't mean that a judge would automatically grant an involuntary termination of a parent's constitutional rights in that short of a period of time. I told you before that I think it's too soon to poke the sleeping bear.

 

[Ohiogal]

Only one person has answered you who is an attorney in Ohio who knows the law and how it is applied. Hint ... not Ldij

 

[Ohiogal]

I don't think that you understand. Whether their mother has any custody or not, as long as she is alive, and objects, it is highly
unlikely that a judge would grant a stepparent adoption at this time. People have a constitutionally protected right to their children, and a judge cannot lightly overturn that right by terminating their parental rights. It has to be carefully and soberly decided, and most judges are going to err on the side of caution.

It would be a different story if she were completely out of their lives for 4 or 5 years (no contact at all, no child support, no phone calls etc.).

And yes, I am aware that generally the law allows for a one year period of time, but that doesn't mean that a judge would automatically grant an involuntary termination of a parent's constitutional rights in that short of a period of time. I told you before that I think it's too soon to poke the sleeping bear.

You are clueless to the law and your opinion matters not.

 

[Ohiogal]

Thank you. I plan to file change of court motion and then proceed with step parent adoption. My question is, how do I prove she hasn't attempted to contact them but twice in an entire year?

You need an attorney quite frankly to do this. That attorney is aware of the burden required. And why wasn’t she able to contact them? That matters.

 

[Taxing Matters]

I don't think that you understand. Whether their mother has any custody or not, as long as she is alive, and objects, it is highly
unlikely that a judge would grant a stepparent adoption at this time.

Your purported standard — that as long as the mother is alive and objects it is "highly unlikely" a judge would grant the adoption — doesn't hold up here. Consider a case decided by the Ohio Supreme Court just earlier this year. In that case, the father objected to the step parent adoption. The parents were divorced in 2013. The father was court ordered to make child support payments of $85/week. Shortly afterwards, the father moved back to his native country of Kosovo. The mother remarried and in 2015, just two years after the divorce, the stepfather filed a petition for adoption. The step father and mother asked the father for consent to the adoption. The father refused. The step father moved for the adoption citing the Ohio statute that provides that consent is not required in the following circumstance:

(A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.​

Ohio Rev. Code Ann. § 3107.07 (West). That's the one year statute that Ohiogal referenced. The father had not had contact with the child but argued that while he did not pay the child support in full he had made one payment of $200 during that year and that should suffice to meet the statute. He admitted in the course of litigation that he could have paid more, but chose not to do so. The trial court and court of appeals held that the single payment of $200 was not good enough. And the Supreme Court agreed:

The starting point—and because the language is clear, the ending point—for our analysis is the text of the statute. The plain text of R.C. 3107.07(A) instructs a trial court to determine whether a natural parent provided maintenance and support “as required by law or judicial decree” for a period of at least one year immediately preceding the filing of the adoption petition. Here, the judicial decree sets forth precisely what father was required to pay: $85 per week, for a total of $4,420 over the course of a year. Father did not pay what the judicial decree required. He paid only $200 for the entire year before stepfather filed the adoption petition. Thus, under the plain language of the statute, father did not “provide for the maintenance and support” of A.C.B. “as required by law or judicial decree” for the requisite one-year period.​

​

In re Adoption of A.C.B., 2020-Ohio-629, 159 Ohio St. 3d 256, 259, 150 N.E.3d 82, 85.

The Court went on to say, however, that this is just the first step of the analysis. There is another part:

Of course, not every failure to provide maintenance and support as required by law or judicial decree will mean that a parent's consent to an adoption is not required. Assessing whether a parent has failed to provide support as required by law or judicial decree is just one step in the analysis. In this step, the statute instructs a probate court to review a biological parent's child-support payments for a period of at least one year preceding the filing of the adoption petition.​

​

The next step requires that the adoptive parent prove by clear and convincing evidence that the parent's failure to provide maintenance and support as required by law or judicial decree was without justifiable cause. R.C. 3107.07(A); In re Adoption of Bovett, 33 Ohio St.3d at 104, 515 N.E.2d 919. This ordinarily will not be an easy showing to make. The clear-and-convincing standard is the highest degree of proof available in civil cases. Stark Cty. Milk Producers' Assn. v. Tabeling, 129 Ohio St. 159, 171, 194 N.E. 16 (1934). It requires evidence that is sufficient to “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. If the adoptive parent cannot show by clear and convincing evidence that the biological parent's failure to provide support as required by law or judicial decree was without justifiable cause, the parent's consent to the adoption is still required.​

Id at 262, 87. In this case, though, the father did not have justifiable cause for not paying. Thus, the court concluded:

Here, application of the statute is straightforward. The Indiana court order required father to pay support of $85 per week, for a total of $4,420 over the course of a year. Father did not even come close to doing what was required by the judicial decree. He paid only $200 in the relevant one-year period (less than 5 percent of his annual obligation) and had an arrearage of over $17,000. Thus, he did not provide maintenance and support as required by law or judicial decree. Further, the probate court found that he lacked justifiable cause for not complying with the decree, and he did not challenge that finding below. Therefore, father's consent is not required for the adoption of A.C.B.​

Id at 262–63, 88.

Thus, the father's consent was not required for the adoption even though at the time of the petition the parents had been divorced just two years. The father's failure to have meaningful contact and to pay the support without any just cause for the failures meant his consent was not required. There are, of course, more proceedings needed to determine if the adoption is in the best interests of the child, but a significant hurdle is cleared when the respondent parent's consent is no longer needed.

People have a constitutionally protected right to their children, and a judge cannot lightly overturn that right by terminating their parental rights.

While I agree that parents do have constitutional rights, those rights are also not absolute.

And yes, I am aware that generally the law allows for a one year period of time, but that doesn't mean that a judge would automatically grant an involuntary termination of a parent's constitutional rights in that short of a period of time.

Not automatically, no. But it is a possibility. After all, the above case suggests that it can be done just two years after the divorce. If that was too soon, the petitioning step parent would presumably have already lost on that basis.

I strongly recommend the OP consult a family law attorney in Ohio for advice based on all the details of her situation. The details matter, and we don't have all those here.

 

[Ohiogal]

Your purported standard — that as long as the mother is alive and objects it is "highly unlikely" a judge would grant the adoption — doesn't hold up here. Consider a case decided by the Ohio Supreme Court just earlier this year. In that case, the father objected to the step parent adoption. The parents were divorced in 2013. The father was court ordered to make child support payments of $85/week. Shortly afterwards, the father moved back to his native country of Kosovo. The mother remarried and in 2015, just two years after the divorce, the stepfather filed a petition for adoption. The step father and mother asked the father for consent to the adoption. The father refused. The step father moved for the adoption citing the Ohio statute that provides that consent is not required in the following circumstance:

(A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.​

Ohio Rev. Code Ann. § 3107.07 (West). That's the one year statute that Ohiogal referenced. The father had not had contact with the child but argued that while he did not pay the child support in full he had made one payment of $200 during that year and that should suffice to meet the statute. He admitted in the course of litigation that he could have paid more, but chose not to do so. The trial court and court of appeals held that the single payment of $200 was not good enough. And the Supreme Court agreed:

The starting point—and because the language is clear, the ending point—for our analysis is the text of the statute. The plain text of R.C. 3107.07(A) instructs a trial court to determine whether a natural parent provided maintenance and support “as required by law or judicial decree” for a period of at least one year immediately preceding the filing of the adoption petition. Here, the judicial decree sets forth precisely what father was required to pay: $85 per week, for a total of $4,420 over the course of a year. Father did not pay what the judicial decree required. He paid only $200 for the entire year before stepfather filed the adoption petition. Thus, under the plain language of the statute, father did not “provide for the maintenance and support” of A.C.B. “as required by law or judicial decree” for the requisite one-year period.​

​

In re Adoption of A.C.B., 2020-Ohio-629, 159 Ohio St. 3d 256, 259, 150 N.E.3d 82, 85.

The Court went on to say, however, that this is just the first step of the analysis. There is another part:

Of course, not every failure to provide maintenance and support as required by law or judicial decree will mean that a parent's consent to an adoption is not required. Assessing whether a parent has failed to provide support as required by law or judicial decree is just one step in the analysis. In this step, the statute instructs a probate court to review a biological parent's child-support payments for a period of at least one year preceding the filing of the adoption petition.​

​

The next step requires that the adoptive parent prove by clear and convincing evidence that the parent's failure to provide maintenance and support as required by law or judicial decree was without justifiable cause. R.C. 3107.07(A); In re Adoption of Bovett, 33 Ohio St.3d at 104, 515 N.E.2d 919. This ordinarily will not be an easy showing to make. The clear-and-convincing standard is the highest degree of proof available in civil cases. Stark Cty. Milk Producers' Assn. v. Tabeling, 129 Ohio St. 159, 171, 194 N.E. 16 (1934). It requires evidence that is sufficient to “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. If the adoptive parent cannot show by clear and convincing evidence that the biological parent's failure to provide support as required by law or judicial decree was without justifiable cause, the parent's consent to the adoption is still required.​

Id at 262, 87. In this case, though, the father did not have justifiable cause for not paying. Thus, the court concluded:

Here, application of the statute is straightforward. The Indiana court order required father to pay support of $85 per week, for a total of $4,420 over the course of a year. Father did not even come close to doing what was required by the judicial decree. He paid only $200 in the relevant one-year period (less than 5 percent of his annual obligation) and had an arrearage of over $17,000. Thus, he did not provide maintenance and support as required by law or judicial decree. Further, the probate court found that he lacked justifiable cause for not complying with the decree, and he did not challenge that finding below. Therefore, father's consent is not required for the adoption of A.C.B.​

Id at 262–63, 88.

Thus, the father's consent was not required for the adoption even though at the time of the petition the parents had been divorced just two years. The father's failure to have meaningful contact and to pay the support without any just cause for the failures meant his consent was not required. There are, of course, more proceedings needed to determine if the adoption is in the best interests of the child, but a significant hurdle is cleared when the respondent parent's consent is no longer needed.



While I agree that parents do have constitutional rights, those rights are also not absolute.



Not automatically, no. But it is a possibility. After all, the above case suggests that it can be done just two years after the divorce. If that was too soon, the petitioning step parent would presumably have already lost on that basis.

I strongly recommend the OP consult a family law attorney in Ohio for advice based on all the details of her situation. The details matter, and we don't have all those here.

Thank you. I have won appeals based upon notice for adoption and comprehend the law and appreciate the backup since I am posting from my phone while on vacation....