Who Gets The Children
ORC 3109.04 — the best interest of the child, and no head start for either parent
In a divorce, a legal separation, or any case about the care of a child, the court allocates what Ohio calls parental rights and responsibilities. It does that one of two ways. It names one parent the residential parent and legal custodian and divides the other rights and responsibilities between the parents, including support and the other parent's right to continuing contact. Or, where a parent has filed a shared parenting plan and the court approves it as being in the child's best interest, it issues a shared parenting order and the parents share some or all of the physical and legal care of the child under that plan.
Mother and father start level. When parents are living apart or are divorced and custody comes before a court, the section says they stand upon an equality as to the parental rights and responsibilities for the care of their children, and as to where the children live and who is their legal custodian, so far as parenthood is involved. Neither one begins ahead for being the mother or the father.
And money is not a reason either. When it allocates parental rights and responsibilities, the court shall not give preference to a parent because of that parent's financial status or condition. That sentence is in the section itself.
The test for all of it is the best interest of the child. The court considers every relevant factor, and the section names these as ones it must include:
- What each parent wishes for the child's care.
- The child's own wishes and concerns, where the judge has interviewed the child in chambers.
- How the child gets on with each parent, with brothers and sisters, and with anyone else who may significantly affect the child's best interest.
- How well the child is adjusted to home, school and community.
- The mental and physical health of everyone involved.
- Which parent is more likely to honour and make possible the other parent's court approved parenting time.
- Whether either parent has failed to make child support payments, arrearages included, under a support order.
- Convictions or findings involving an abused or neglected child, domestic violence, or harm to a member of the family or household, for either parent or anyone living in either household.
- Whether a residential parent has continuously and willfully denied the other parent's court ordered parenting time.
- Whether either parent has moved, or plans to move, out of Ohio.
For shared parenting in particular, the court also weighs whether the parents can cooperate and make decisions together, whether each encourages the child's love, affection and contact with the other, any history of or potential for child abuse, spouse abuse, other domestic violence or parental kidnapping, how close the two homes are, and the guardian ad litem's recommendation where the child has one.
Changing an order is harder than making one. A court shall not modify a prior custody decree unless it finds, from facts that arose after it or were unknown to the court at the time, that the circumstances of the child, the residential parent, or either parent under a shared parenting decree have changed, and that the change of order is necessary to serve the child's best interest. Even then the section keeps the residential parent already named, unless the modification is in the child's best interest and one of three things is true: the residential parent agrees; the child has been integrated into the other family with the residential parent's consent; or the harm a change of environment is likely to cause is outweighed by its advantages to the child.
Which court hears a case, and whether Ohio is the child's home state at all, runs under the uniform child custody jurisdiction sections the allocation section names. Mediation, the investigations and evaluations a court may order, how a shared parenting plan has to be written, support, and parenting time schedules each have their own divisions and sections. How a court weighs these factors on one family's facts is not something the statute answers, and a licensed Ohio attorney, or legal aid where it is available, is who reads a specific case.
Sources for this section (2)
- ORC 3109.04 — Allocating parental rights and responsibilities, and the best interest of the child
- ORC 3109.03 — Parents stand upon an equality as to custody
Legal information, not legal advice. Verified as of September 2026. Talk to a licensed Ohio attorney about your situation.