MOUNT VERNON — When a family breaks apart and parents go their separate ways, the issue of who will retain custody of the children can become a heated battle.
Editor’s note: This is the first in a series of articles examining the different roles the court, mediators, and law enforcement can have in settling child custody disputes. Thursday, the News examines the role of the court in such matters. In Friday’s edition, a court mediator explains the role of her office. Saturday’s edition will look at the role law enforcement can and cannot play in custody issues.
With emotions running high and deep between the parents involved, the courts must sometimes make the decisions for parties who cannot agree, about how much time the child will spend with each parent.
According to Knox County Common Pleas Judge Otho Eyster and Magistrate Linda Cohen, one of the most important, and difficult tasks, they face from the bench, is deciding custody matters involving minor children.
“Parental rights — we take that more seriously than anything we do up here,” Eyster, a judge with 28 years of judicial experience, said.
Cohen explained that some people come to court not understanding that Ohio law gives both parents equal consideration for custody, regardless of gender.
“Each party has an equal right to possession of that child under the statute — moms, dads — doesn’t matter,” added Cohen, who has been a magistrate for 15 years.
The two jurists sat down with the News to explain the complicated and sometimes lengthy process which parents must submit to in court when seeking custody of their children in a divorce action.
All divorce custody matters in Knox County are heard in Common Pleas Court in front of Cohen or Eyster. If the parents are not married to each other when a custody dispute is brought to court, the matter is heard in juvenile court, according to Eyster.
He said the number of custody cases heard in Knox County varies from year to year, but currently averages well over 600 cases a year.
While an Ohio Supreme Court Rule of Superintendence mandates custody matters be settled within 18 months, Cohen said in Knox County, the court tries to keep the time frame to within a year.
Cohen, who used to work in Franklin County, said the local process is more personal and less bureaucratic and standardized.
“We are able to think outside the box and be pretty innovative,” she said.
“You get a lot more attention and better service here than in Franklin County,” agreed Eyster.
Cohen said the court encourages parties to work with their attorneys to settle custody issues without bringing the matter in front of the court.
While the matter is working its way through the process, temporary orders are issued to both parties, specifying how much time the child will spend with each parent.
A court mediation service is offered to all couples going through a divorce. And parties must participate in a mandated mediation assessment, according to Eyster.
“It’s an opportunity for the parties to work out the issues without court intervention which is better for everyone,” the judge explained.
He said custody agreements reached in mediation work better in the long run, because couples are more motivated to follow a plan they help develop, than when a plan is forced upon them by the court.
“At least one of the parties, and often both parties, goes away unhappy when it appears before the judge,” Eyster said.
Every parent granted a divorce in Knox County must attend a parenting seminar called “Children First” which Cohen and Eyster credit with pushing some parents to reflect on how their actions in a custody battle are affecting their children.
“It can cause people to stop and think about putting the petty stuff behind you; it stresses to people that it’s about the children,” Eyster said.
The large volumes of information the judge and magistrate may consult before making a decision regarding custody can be varied.
“We’re allowed to consider anything that comes across our desk,” Eyster said.
“People may not realize how much information the court has,” Cohen added.
While one parent or the other may have served as primary caregiver for younger children, Cohen said in recent years parents have increasingly divided parenting duties more evenly.
Consequently, it is no longer considered routine for mothers to predominantly be awarded primary residential custody.
“Sometimes we grant primary custody to both parents,” Cohen said.
The courts consider the best interest of the child above all else, according to Eyster, with custody orders designed to reflect what the child has experienced before the separation and divorce.
The court considers the family’s history before dividing the parenting time. If one parent has done most of the childrearing, or both have done so equally, the custody order will reflect those facts by dividing parenting time to maintain a similar routine for the child.
“The closer we are to keeping the status quo, the better for the children,” Eyster explained.
While the process may be slow and deliberate, it works, according to Eyster and Cohen.
“Divorce is a process and it’s hard for people to be patient,” Cohen said. “But I have a process I have to follow.”
While both sides are normally given an opportunity to be heard equally, in some more serious situations, emergency orders may be sought by one of the parties.
“Ex parte relief is when the court only hears one side of the story without giving the other side a chance to be heard,” Cohen explained.
In the rare instances when an order is granted, it is temporary, with a hearing granted within a few weeks to allow both sides to make their case.
“The court is extremely circumspect in granting those types of orders because due process is affected,” Cohen said.
Eyster said some of the reasons parties may give for seeking immediate, emergency sole custody may not rise to the court’s standard for granting such an order, without allowing for due process.
“To take away one side’s rights — that’s a very serious request,” Cohen said.
Such orders are usually only granted if the court believes a child’s safety may be in immediate jeopardy, and when granting ex parte relief, a hearing is scheduled, and other parties such as children’s services and law enforcement are immediately brought into the matter.
Cohen said while many cases can be quite heated in the beginning, they work themselves out over time, as the process works.
She estimated that only about 5 percent of the custody cases that she hears continue to develop problems in the long term.
Some parents continue to experience problems dealing with their custody matters and each other, months and years after the case has been “settled.”
“Those are my ‘boomerang’ cases, the ones which return to court, return to court, and return to court, and it’s unfortunate,” Cohen said.
“Some people are incapable of processing the emotions that come with divorce,” Eyster said.
Both Eyster and Cohen said the heated nature of the cases indicated high emotion on the part of both parties.
“I can’t remember the last time I saw someone who didn’t genuinely care about their children,” Eyster said.
Each case is important, both agreed, and they know the decisions they render deeply impact the lives of many.
“We’re trying to do the best that we can,” Cohen said. “It’s not easy, but we take it seriously.”
