DEFENDING A MOTION TO CHANGE CUSTODY/PARENTAL RIGHTS

If you receive a motion to change or modify custody and you disagree with the motion, you will need to go to Court to explain why a change is not needed.

It is important to understand what the other parent must prove in order to get a change.

The court must first decide if there has been a “change of circumstances” of the child or the custodial parent

o The change of circumstance must have occurred after the last custody decree. o The change of circumstances must have a direct, adverse impact on the child. o Ohio law creates a presumption in favor of retaining the present custodian;

however, sufficient evidence can rebut this presumption.

If the court finds that a “change of circumstances” has occurred, the court must determine if:

o the present custodian has agreed to the change of custody; o the child has been placed in the other parent’s home by the custodial parent and

is integrated into that home o the harm likely to be caused by such a change of environment is outweighed by

the benefit of placing the child in the other home.

If the court needs to decide whether the child should be placed with the other parent, the court will consider these factors when deciding what is in the child’s best interest

o the wishes of each parent; o the wishes and concerns of the child o the child’s interaction with the parents, siblings, and other people who impact the o child (neighbors, friends, teachers) o the child’s adjustment to the home, school and community o the mental and physical health of all persons involved o the parent most likely to honor and facilitate visitation o whether a parent has failed to make ongoing child support payments o whether the custodial parent has willfully denied visitation to the other parent o whether either parent is planning to establish a residence out of state o whether either parent has abused children or been a perpetrator of domestic

violence

Any child who is mature may state an opinion as to who should be the legal custodian. You can file a “Motion for In Camera Interview” to ask the court to listen to the child’s wishes.

You may ask the court to appoint a guardian ad litem (GAL). A GAL will investigate and report to the court. The GAL will talk with parents, teachers, counselors and others and review records. The GAL also will talk with the child. You should cooperate with the guardian ad litem who has been appointed on the case.

A CHILD CANNOT CHOOSE WHERE TO LIVE

In 1990, the Ohio legislature abolished a 12-year-old child’s ability to decidewhich parent should be his or her custodian. This was called “election.” Thechild’s preference is but one factor for a court to consider in an initial custodydetermination or when changing custody.

If custody has never been determined, the parents are on equal footing. Thecourt must decide what is in the child’s best interests by reviewing certain factors. Some of these factors are:

• the desires of the parents;

• the desire of the child;

• whether a parent is moving out-of-state; or

• which parent will allow and facilitate parenting time.

The court balances all of the factors to determine what is in the child’s bestinterests.

The law specifically prohibits any person from obtaining or attempting toobtain a child’s preference either in affidavit form or in a statement form. It is bestNOT to ask your child where she or he wants to live. If there is a hearing, thecourt may interview a child to determine his or her wishes.

This information prepared by and distributed by Southeastern Ohio Legal Services

This information is not intended to be a substitute for legal analysis.Please consult with an attorney.

To contact your local legal services office, call 1-866-LAW-OHIO

P:\Forms-Macros\Forms\Publications\Pamphlets\family\Zanes child choose.wpd

Representing

Yourself in Court?

How to Use Photographs,

Letters, Business Records,

and Other Evidence to Help

Prove Your Case

What is Evidence?

Evidence is anything you use to prove your claim. Evidence can be a photograph, a letter,

documents or records from a business, and a variety of other things. All evidence that is

properly admitted will be considered by the judge.

Your case probably will be decided by a judge. If there is a jury, it will look at admitted

exhibits during its deliberations.

For example:

• In a request for change of custody, the child’s school records could be introduced as

evidence that the child’s grades have dropped or he/she has missed a significant amount of

school while living with the other parent.

• In a domestic violence or stalking civil protection order case, a photograph of any

injury you suffered or a threatening letter written by your abuser may help your case.

• In a divorce case, a copy of tax return documents or documents showing who has title to

a car may be introduced as evidence.

Exhibit 1

Why Use Evidence?

Ø Evidence is more believable and trustworthy than what a person says. For example, in a

domestic violence case, if you say that your ex-boyfriend has left you threatening messages

but he testifies that this is an absolute lie, the judge may not know whom to believe.

However, if you submit a tape recording of one of these messages the judge will be more

likely to believe you.

Ù Evidence may make something easier to understand. “A picture is worth a thousand

words.” Some things are hard to explain in words, while a drawing or photograph is

descriptive and clear.

How Do I Present Evidence to the Court?

Each court is different, but in most courts, you can’t just walk into court with a photograph or

document and show it to the judge or jury. There are many things you must do before the court

will even look at the evidence you have. Further, there are many different types of evidence, and

the rules for using each type of evidence are different. Once you follow these rules, your

evidence will be “admitted”.

Steps to Follow to Admit Evidence

º Before you ever go to court, think about the evidence you want to use to

prove your case. Mark each piece of evidence with an exhibit number

(attach a sticker labeled “Exhibit 1,” “Exhibit 2,” etc.)

º Bring these marked Exhibits with you to court. When you want to show

the court one of the exhibits, do the following things:

ì Show the exhibit to the other party or the other party’s attorney.

í Then “lay the foundation” for the evidence. To do this, you must show that the

evidence is relevant to your case and authentic (not a forgery). Depending upon

what you want the court to consider, follow the rules listed in this pamphlet for

“laying the foundation” - explaining why and how the exhibit is connected to your

case.

Ú Either you or your witness must testify about the exhibit.

Û Ask the court to admit the exhibit into evidence. The other party or attorney may

object to the exhibit for some reason. Try to answer these objections as best you

can. If you can’t, let the judge decide.

Ü If there are no objections from the other party, or the judge has ruled in your favor,

ask the court to “admit the Exhibit into evidence.”

Laying the Foundation for Photographs

1. Explain why a photo is connected to your case. For example:

“This photo shows the injury I suffered after my ex-boyfriend punched andkicked me.”

2. Explain how you know about what is in the photo. For example:

“I had my sister take this photograph within 2 hours after theincident occurred and went to get the film developed myselfthe following day.”

3. Explain that the photo is timely. For example:

“At the bottom right-hand corner of the photo is the date on which it was taken. As you can see, the photo was taken on the sameday that the incident occurred, which is also thesame day the police arrested my ex-boyfriend.”

4. Explain that the photo “fairly and accurately” shows what

is depicted in the photo as it appeared on the date relevant

to your case. For example:

“This photo is a fair and accurate depiction ofhow my face and side looked two hours afterthe incident and for the next two weeks.”

Foundation for Letters

1. Explain why the letter is connected to your case. For example:

“This is the letter that I received from my ex-boyfriend shortlybefore he beat me up."

2. Explain when and how you got the letter. For example:

“This letter was shoved under the door to my apartmentsome time before 6 p.m. on Wednesday, January 2, 2001. I found it on the floor when I came home from work thatday.”

3. Prove that the signature is that of a party to the case. Ways to prove this:

• Explain to the court: that you are familiar with the other party’s signature, how

you came to know that person’s signature, and that it is your opinion that the

signature on the letter is the other party’s signature.

TIPWhen using photographs, it is

best to use color photos and

enlarge them, if possible.

• Call a witness who is familiar with the party’s signature, and ask the witness:

“Do you know the other party in this case? Are you familiar with the party’ssignature? How?”

Then show them the letter and ask “Is thisthe other party’s signature?”

• Call the person who signed the letter.

Show the witness the document, and ask

the witness if that is his or her signature.

(Only do this if you think they will admit to

it).

4. Explain that the letter is in the same condition

now as when you received it. (“The letter waskept in a safe place and nothing has been changed since I received it.”)

Laying the Foundation for Documents and Records

From Businesses

1. Explain how the document or record is related to your case.

2. Call a witness from the business/agency that produced the record, ask

the witness what his or her responsibilities are at the business/agency

and how he or she is involved in record keeping.

3. Show the witness the record and ask him/her if it is a record from the business/agency.

4. Ask the witness:

• Was the record made by a person with

knowledge of the acts or events appearing on

it.

• Was the record made at or near the time of the

acts or events appearing on it.

• Is it the regular practice of the business/agency

to make such a record, and

• Was the record kept in the course of a

regularly conducted business activity.

Created by: NAPIL Equal Justice Fellow, Ohio State Legal Services Association®

© 1/2001 OSLSA

TIPSDo not read anything from the letter

until the court has admitted it into

evidence.

If the other party objects to the letter

saying that it is hearsay, respond by

saying: “The letter shows the letter

writer’s state of mind.”

TIPIf the record is certified (a statement is

attached to the record stating that it is

in fact a record from a public agency

or it has an agency seal on it) you do

not need to do anything before you

show it to the judge. Just let the judge

know it is certified.

NOTE: IT IS NOT REQUIRED THAT YOU FILE AN ANSWER BUT IF YOU WANT TO LET THE COURT KNOW THAT YOU DISAGREE – YOU CAN USE THIS

IN THE Fill in the name of the Court-Common Pleas or Juvenile COURT

Fill in the name of the County where the Court is COUNTY, OHIO

Fill in the name as it appears on your papers

Plaintiff,/Petitioner Case No. Fill in # from papers

Vs. Judge Write name of Judge if you know it

Fill in the name as it appears on your papers

Defendant/Petitioner. ANSWER OF Write your name

Now comes Write your name and for an Answer states as follows:

1. I am the fill in what your relationship is to the child of the minor child in this action.

2. I do not believe the write the name of the person who filed against you should be granted

custody of the minor child(ren).

3. The child(ren)’s best interest would be served if I were granted/maintained

custody.

_Sign your name ONLY in front of a notary____ Print your name underneath your signature Fill in your street address____________________

Fill in your city, state and zipcode__________

Sworn to and subscribed before me this ____ day of ____________, 20___.

__Leave blank for notary to fill out and sign_________ NOTARY

PROOF OF SERVICE

I certify that I mailed a copy of this answer to __Write name and address of opposing party or attorney

by ordinary US Mail this ________ day of _Fill in date of mailing a copy_, 20____.

___Sign your name here_____________________ BE SURE AND MAKE SEVERAL COPIES AND FILE THE ORIGINAL WITH THE COURT AFTER YOU SEND A COPY TO THE OTHER SIDE

IN THE __________________________ COURT

_______________________ COUNTY, OHIO

___________________________________

Plaintiff,/Petitioner Case No. ____________

Vs. Judge _______________

___________________________________

Defendant/Petitioner. ANSWER OF _________________

Now comes _____________________________ and for an Answer states as follows:

1. I am the ______________________ of the minor child in this action.

2. I do not believe the __________________________ should be granted custody

of the minor child(ren).

3. The child(ren)’s best interest would be served if I were granted/maintained

custody.

________________________________________ ________________________________________

________________________________________

Sworn to and subscribed before me this ____ day of ____________, 20___.

________________________________________ NOTARY

PROOF OF SERVICE

I certify that I mailed a copy of this answer to __________________________________

by ordinary US Mail this ________ day of ________________, 20____. __________________________________________

IN THE (fill in the name of the county) COUNTY COMMON PLEAS COURT (type of court – GENERAL, DOMESTIC RELATIONS, OR JUVENILE) DIVISION

(fill in the name of the county) COUNTY, OHIO In the Matter of: (write in the name of the child(ren))_______

Minor Child (Write in the name as it appears on your paperwork)

Plaintiff/Petitioner, Case No. _(put in case number from your papers)__ vs. MOTION FOR THE COURT TO INTERVIEW THE MINOR (Write in the name as it appears on your paperwork) CHILDREN Defendant/Petitioner. Now comes _(write in your name)_ and moves this Court and requests that the minor

children be interviewed by the Judge in chambers pursuant to statute and rules.

______(Sign your name)_______ MEMORANDUM ORC §3109.04 requires that the minor children shall be interviewed upon the

request of a party. The undersigned is a party and with this motion is requesting that the minor

children be interviewed.

For these reasons, the undersigned requests that the Court interview the minor

children. _______________(Sign your name)__________

PROOF OF SERVICE I hereby certify that I mailed a copy of the foregoing Motion to Interview by ordinary US Mail to _(write in the name of the other party or, if they have an attorney, the attorney’s name_ at _(write in the other person or attorney’s address) _, this (date you mail this) day of (month you mail it), 20(year). ________________(Sign your name)__________

IN THE _____________ COUNTY COMMON PLEAS COURT ____________________________ DIVISION

_________________ COUNTY, OHIO In the Matter of: ____________________________ Minor Child __________________________

Plaintiff/Petitioner, Case No. _______________ vs. MOTION FOR THE COURT TO INTERVIEW THE MINOR __________________________ CHILDREN Defendant/Petitioner. Now comes _______________________ and moves this Court and requests that

the minor children be interviewed by the Judge in chambers pursuant to statute and rules.

__________________________________

MEMORANDUM ORC §3109.04 requires that the minor children shall be interviewed upon the

request of a party. The undersigned is a party and with this motion is requesting that the minor

children be interviewed.

For these reasons, the undersigned requests that the Court interview the minor

children.

__________________________________

PROOF OF SERVICE I hereby certify that I mailed a copy of the foregoing Motion to Interview by ordinary US Mail to ______________________________________ at ________________ _________________________________________, this _____ day of _______________, 20___. ______________________________________

IN THE COURT OF COMMON PLEAS ___________________________________COUNTY, OHIO

DOMESTIC RELATIONS DIVISION

____________________________ Case No. _________________________

Plaintiff

JUDGE ____________________________ vs. MAGISTRATE _____________________

____________ MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM

Defendant

1. I am the of the minor child(ren),______________________

__________________, born .

2. I am a party to this action.

3. I request the appointment of a Guardian ad Litem pursuant to Ohio Rule of Civil

Procedure 75(B)(2), because it is essential to protect the interest of the child(ren).

Respectfully submitted,

____________________________________ (Your Signature)

____________________________________ Print Name

____________________________________ Street Address

____________________________________ City, State, Zip

____________________________________ Telephone

PROOF OF SERVICE

I certify that a copy of the foregoing was served upon ____________________, (Name of other party’s Attorney of other party if not represented)

at _______________________________________________________________, by regular U.S. Mail (Address of other party’s Attorney or other party if not represented)

this _______ day of ______________________, 20___.

(Date) (Month)

________________________________________ (Your Signature)

 

 

IN THE COURT OF COMMON PLEAS

-Fill in Juvenile or General or Domestic- DIVISION

__-Fill in Name of County-___ COUNTY, OHIO In the Matter of: (if Juvenile, fill in name of children_______ Minor child(ren)

(Fill in name of Plaintiff/Petitioner as on your papers), Case No. (Fill in Case #)

Plaintiff/Petitioner, Judge ______________ vs. (Fill in name of Defendant/Respondent as on your papers, ENTRY ON MOTION

Defendant/Petitioner.

This matter came on to be heard on ___(Fill in your name)___’s Motion for __(You

can fill in the name of your motion if you want to or you can leave this blank)___.

Upon consideration of the record and the motion, the Court HEREBY ORDERS:

_______(LEAVE THIS BLANK!!!!!!!!!!!!!!!!!!)_____________________________

________________________________________________________________

________________________________________________________________

_____________________________________ JUDGE

SUBMITTED BY: (SIGN YOUR NAME HERE)___ 

IN THE COURT OF COMMON PLEAS

____________________ DIVISION

__________________________ COUNTY, OHIO In the Matter of: ______________________________ Minor child(ren)

______________________________, Case No. ___________

Plaintiff/Petitioner, Judge ______________ vs. _______________________________, ENTRY ON MOTION

Defendant/Petitioner.

This matter came on to be heard on __________________’s Motion for

___________________________________________.

Upon consideration of the record and the motion, the Court HEREBY ORDERS:

________________________________________________________________

________________________________________________________________

________________________________________________________________

_____________________________________ JUDGE

SUBMITTED BY: _____________________________ 

Subpoenaing a Witness to Court

Civil Case – domestic or juvenile

Sometimes you will need to force a witness to appear in Court because the witness has information that you believe the Court should hear but the witness will not come to court without a subpoena. If you want to make sure the person comes to Court, you should file your subpoena request as early as possible, at least 5 days before the hearing, so there is enough time for the subpoena to be served. To issue a subpoena in a civil matter, you will need to use a form called a Subpoena. Attached to this sheet is a sample subpoena which shows you how to fill it out and a blank form you can use to fill in the names and dates and all of the required information you need to have the witness subpoenaed to Court. Once you have completed the subpoena, you should first make 3 copies of the subpoena form and the back side form. Take these Subpoena forms to the Clerk of Courts office where the court case is. You should have a money order or cash to give the Clerk for the witness fee - $6.00 if your case is scheduled for a half day, $12 if the case is scheduled for more than a half day. The clerk will keep the original and one copy and you should be given a copy back. Save your copy in case the person does not come to Court so you have proof that you requested the person to appear. The clerk will send the subpoena to the sheriff’s office who will serve the original and return the copy to the clerk for filing.

Domestic Relations/Juvenile Division

In addition to the forms in this packet, you may find additional forms and informational pamphlets to help you on the internet at the

following website:

www.ohiolegalhelp.org

Click on “Statewide Forms & Information”

Locate and click on the legal area that you would like to review – use the search box if

you are not sure which area to review

You can also search this website to learn how to access the local legal services

program for your area