Change of Custody versus Change of Visitation- Different Standards and Why You Should Know the Difference

It is an often misunderstood nuance in Ohio family law.

In 1999, the Ohio Supreme Court held in Braatz v. Braatz, that whereas one is required to show a change of circumstances in order to modify a custody determination, a chance of circumstances need not be shown to modify visitation.

Let’s break this down.  Involvement in a child’s life can be divided into two parts, decision making and time. Custody is a term that refers to who is legally entitled to make decisions regarding the care of a child.  When parents are married, both parents are considered custodians of minor children of the marriage and are equally entitled to make decisions regarding the children.  When a child is born to an unwed mother, the mother is the sole custodian until a Court orders otherwise.

Courts can make determinations of custody in the event that married parents are separated, married parents are seeking a divorce, or an unmarried parent is seeking an order.  When making a determination of custody, the court ordinarily makes one of two chooses.  Name one parent custodian or both parents custodians.  If one parent has custody, she is referred to as the legal custodian or residential parent.  If both parents have custody, this is called Shared Parenting.  When one parent is named custodian, the other parent is typically given visitation rights. Visitation rights allow the parent to have time with the minor child.

If a person with visitation rights is seeking a modification of a court order, to have more time with his child for instance, he does not need to show a change of
circumstances. Instead, the court must consider a number of factors set forth in Ohio law and ultimately determine that it is in the best interest of the child.

Alternately, if a parent wishes to have a different parent named custodian or have a Shared Parenting Plan modified, he must show a change of circumstances with the minor child or custodian parent or either parent subject to a Shared Parenting Plan, and that the benefit of making the change outweighs the harm and it is in the best interest of the minor child. The Court must consider a number of factors set forth by Ohio law when determining the best interest of the minor child.

Hence, the hurdles to having a change of custodian or Shared Parenting Plan are much greater than a change in visitation. This nuance in the law is often misunderstood by attorneys and court personnel alike and can make all the difference in the success of your visitation modification.