"NOT THE MAMA!"

Many Vidovich Law clients are completely unaware of the laws concerning parental rights in Ohio. Vidovich Law would like to provide some clarification:

In Ohio, if a child is born during a marriage the husband is presumed to be the father of the child. Although Ohio law presumes the husband to be the father of the child, either parent and/or the actual biological father can challenge this presumption in court.

On the other hand, if a child is born to an unmarried woman in the State of Ohio, she is considered the sole residential parent and legal custodian of the child under the laws of Ohio (Ohio Revised Code §3109.042).  After the birth of the child, the mother does not have to file any documents with the court in order to legally establish the custody of the child. The father of the child, however, has no legal rights until he establishes paternity and obtains a court order granting him custody, shared parenting, parenting time, and/or visitation.

Paternity can be established by signing an Acknowledgment of Paternity at the time of the child’s birth or at a later date through DNA testing. It is extremely important to establish paternity as soon as possible after birth as the father will not be legally recognized until this is completed. Once paternity is established, unmarried fathers have an equal claim to custody under Ohio custody laws. This means that fathers have just as much right to take custody of the child as the mother.

Many fathers of children born to unmarried women believe that establishing paternity automatically provides the father with custody, parenting, or visitation rights with the child. This is not accurate. Fathers who establish paternity and fathers who are ordered to pay child support through the Child Support Enforcement Agency are required to petition the appropriate court for custody, shared parenting, and/or parenting time.

Gila River Tribe v. State of Ohio?

This past Tuesday, the appellate court in Franklin County, Ohio, ruled that a juvenile court that granted jurisdiction and custody of a five year old boy in Coshocton County to the Gila River Indian Community did not conduct a full evidentiary hearing considering the best interests of the child prior to making the aforementioned decision. Such a ruling indicates that the Indian Child Welfare Act of 1978 does not supersede a child’s best interest in custody or adoption cases and, therefore, a child’s best interests should be given full consideration in custody or adoption hearings conducted by the court.

After reading about this case, many people have asked: What exactly is the Indian Child Welfare Act of 1978 and how did it come to affect the custody of this five year old boy?

The Indian Child Welfare Act (“ICWA”) was enacted in 1978 after studies revealed that many native children were being separated from their families by state welfare agencies and private adoption agencies. The ICWA was created to “protect the best interests of Indian Children and to promote the stability and security of Indian tribes and families.” 25 U.S.C. §1902. ICWA established federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe. Many tribal governments use blood quantum or ancestral descent to determine a child’s membership in a specific tribe. Pursuant to ICWA, in cases involving native children caseworkers must, among various other requirements, identify a child placement that fits under the ICWA preference provisions; notify the child’s tribe and the child’s parents of any custody proceedings; and work to actively involve the child’s tribe and parents in the proceedings.

 In the case of this five year old boy, the child’s father is a member of the Gila River Tribe and resided on the reservation during his childhood. The tribe has argued that Ohio caseworkers did not properly notify the tribe when the child was placed in foster care in 2015. The tribe argues that the child should have been placed with relatives of the tribe and not a foster family in Coshocton County. After the Gila River Tribe became involved in the case, the child’s attorney, court appointed guardian, and biological mother pleaded with the juvenile court to allow the child to remain in Ohio instead of being placed with the Gila River Indian Community in Arizona.  As stated above, the juvenile court granted custody to the Gila River Tribe before that decision was overturned this week by the appellate court. The Gila River Tribe has stated that they will continue to fight for the best interests of the child as they believe he belongs with the Gila River Tribe in Arizona.

Compared to the western half of the nation, there are relatively few custody or adoption cases in Ohio that involve ICWA. Therefore, it will be quite interesting to see how this case continues to play out in the Ohio court system.

"Can I Write My Own Estate Plan?"

       Many people are intimidated by the anticipated costs and complexities of preparing an estate plan with the help of an attorney. Due to these concerns, some individuals choose to prepare and draft their own estate plan using online documents and software or, in some cases, fill-in-the-blank forms purchased at a store. While drafting your own estate plan may seem like a convenient and affordable idea, estate planning mistakes can lead to complicated and costly legal problems.   

         For example, Vidovich Law worked on a case where the decedent (i.e.: the individual who passed away) drafted his own Last Will and Testament without consulting an attorney.  After writing his initial Will, the decedent proceeded to draft three more Wills. To complicate matters further, each Will gave the decedent’s assets to different family members or beneficiaries. The decedent failed to revoke (or cancel) any of the Wills prior to his death and, therefore, four Wills were in existence when he passed away. Unfortunately, a legal fight ensued after the Estate was opened as various family members argued over which Will should be considered the decedent’s true and proper Last Will and Testament.  This legal battle lasted for months and cost the decedent’s Estate quite a bit of time and money.  

         We promise that the estate planning process is not as overwhelming and confusing as you may believe. It is important to have a proper estate plan in place and therefore we encourage everyone to consult with an estate planning attorney to create an appropriate estate plan for your needs. While we don’t advise drafting your own estate plan using online documents or programs, these online services can assist you while you are preparing to meet with the attorney to discuss your case. 

Kate O. Vidovich is an attorney located in Columbus, Ohio

"My Wife's Ex Tried to Evict Me"

Vidovich Law consistently reminds ours clients to maintain an updated estate plan. However, clients must also remember to comply with any orders in a divorce decree before creating or updating the estate plan.

Recently, Vidovich Law handled an estate in Franklin County involving the death of a client’s spouse. This was a second marriage for the spouse who had been legally divorced for approximately five years when she died unexpectedly. Although the spouse was remarried, she did not have an updated estate plan and had not complied with a divorce decree requiring her to re-finance the home and remove her ex-husband from all financial documents and deeds. At the time of her death, the home (where the spouse and our client currently resided) was still jointly held by the spouse and her ex-husband.

After the death of the spouse, the ex-husband drafted, signed, and filed a Survivorship Affidavit to transfer the home into his own name. The ex-husband submitted a fraudulent affidavit, but was still able to transfer the home and file an eviction action against our client.  

Although Vidovich Law was able to fully correct these actions, the spouse’s failure to follow the orders in the divorce decree and to update her estate plan caused her current husband to deal with unnecessary legal actions and her estate to incur further court time and legal fees.

This case is certainly a reminder that it is absolutely necessary to comply with the orders of a divorce decree and to prepare an updated estate plan after any divorce action. Following these steps may help your family and friends avoid unwanted legal action and unnecessary stress after your death.

About the Author

Kate O. Vidovich is an attorney located in Columbus, Ohio practicing in the areas of estate administration, probate law, adoption and surrogacy, probate and trust litigation, estate planning, wills and trusts, guardianships, and real estate law.