Legal custody gives you rights and responsibility to care for a child. Legal custody requires you to:
- Provide emotional support
- Choose where the child lives and is enrolled in school
- Care for the child’s basic needs (like food, shelter, education, and healthcare)
- Make decisions for the child (like education and medical choices)
- Protect and discipline the child
When a child is born in Ohio, the mother has legal sole custody automatically. If the mother and father are married when the child is born, the mother and father are both equally legal custodians.
Parents have a legal right to keep custody of their children. If another adult wants custody to protect the child’s physical or emotional well-being, the adult must prove the parents are unsuitable. A parent is unsuitable when the child is unsafe, unsupported, or has been abandoned.
If a childrens services agency believes that a child is abused, neglected or dependent, they must go to court to remove a child from parent’s care. An abuse, neglect or dependency case is different from a “private custody” case. Learn more about abuse, neglect, and dependency cases and kinship care.
How to get legal custody
For non-parents, there are three ways to get legal custody of a child:
- A custody order. An adult can file a custody case in either the Domestic Relations or Juvenile Court in the county where the child lives. Then, the judge can decide to issue a custody order. The custody order allows the non-parent custodian to care for the child’s daily needs. The parents and child still have a legal relationship. The parents have the right to visit, unless the judge forbids visits. The parents may ask the judge to give custody back to them.
- Guardianship. An adult can receive guardianship when a child’s parents die or become incapacitated. Parents may choose a preferred guardian in their will. If the will does not name a guardian, the guardianship case is probated. Custody orders and guardianship give similar rights, but they come from different courts and have different rules. If the parent is alive, the parent keeps some rights. The parents may ask the court to end the guardianship.
- Adoption. Adoption gives complete, permanent, life-long legal parental rights to an adult after the court terminates the parents' parental rights or the biological parents waive their parental rights. The legal relationship between the child and their birth parents ends.
Getting custody is complicated. If you want custody of a child, you should talk to a lawyer.
Where to file for a non-parent custody order
The first step to file for non-parent custody is choosing the right court. In Ohio, cases can be filed in:
- Juvenile Court. The Juvenile Court is responsible for cases when a child is part of a Childrens Services case, or if the child’s parents were never married to each other.
- Domestic Relations Court. The Domestic Relations Court is responsible for cases where the child’s parents are married, separated, or divorced from each other.
In some cases, there may be an existing custody case or order about the child. If a court already created a custody order, file for custody in that court.
In Richland County and Summit County, custody cases are always filed in Domestic Relations Court, no matter the marital status of the parents.
If there is an undecided child custody case, you can file a motion to be added as a party to the case (sometimes called a “Motion to Intervene"). Check the court’s website or call the clerk’s office to find the Motion to Intervene. With the Motion to Intervene, include the court’s motion or application for custody.
Intervening in an existing case can be complicated. If you want to join an existing case, talk to a lawyer to understand your options and their legal consequences.
Find and complete the forms
Use the Non-Parent Custody Form Assistant to help you find the forms for the court where you are filing. If you're filing for custody of multiple children, your court may require you to file a separate "Complaint" form for each child.
On the form, you must identify the right people, whom the court calls the “necessary parties,” to sue for custody. In a private custody case, the necessary parties are usually the child’s biological parents. The court must give the biological parents an opportunity to participate in the case before making a custody decision.
In your custody forms, you must name these defendants:
- Parents. You must name all of the child’s living parents (even if one or both of them are unavailable). If paternity is legally undetermined, you should name the person whom the mother says is the father. If the mother says the father is unknown, you must name “John Doe,” which is a legal placeholder name when the real name is unknown. If one or both parents are dead, you must show evidence like a death certificate, funeral bill or obituary.
- Custodians. You must name any other person with legal custody of the child.
How to determine if paternity is established
Paternity means legal fatherhood. Biological and adoptive fathers may be eligible for paternity.
If a couple is married when their baby is born or is married any time in the 300 days before the birth, the man’s paternity is assumed automatically (unless paternity is established for another biological father). A birth certificate has a father’s name only if the parents were married at the time of the child's birth.
If the parents are not married, there are three ways they may have established paternity:
- Acknowledgement of Paternity Affidavit. If both parties agree that they are the child’s biological parents, they can voluntarily sign an Acknowledgement of Paternity Affidavit.
- Genetic testing through CSEA. The mother, any alleged father or the child’s guardian may ask the CSEA to do genetic testing. If the test shows at least a 99% probability of fatherhood, the CSEA issues an Administrative Order of Paternity and schedules a support hearing.
- A court order of paternity. During a divorce, a Juvenile Court or Domestic Relations Court may issue a court order of paternity. Paternity may also be established during a court case filed between unmarried parents in Juvenile Court.
Paternity can be established any time before the child turns 23 years old.
If you are unsure if a child’s paternity is established, you can contact the Ohio Central Paternity Registry (CPR). The CPR is a statewide database of paternity establishment of children born to unmarried parents in Ohio. The CPR collects paternity documents from CSEAs, hospitals, departments of health, bureaus of vital statistics and courts. You can contact the CPR call center at 1 (888) 810-6446.
If paternity is not established and you are aware of the identity of a potential father or fathers, you must list them by name.
If you are unable to identify the father, you must name “John Doe” as the father in your custody complaint.
Filing & Service
After you complete the forms, you must file the forms and pay the filing fee. Each court sets its own fees. Check the court's website or call to ask about fees before you file.
If you have a low income and can’t afford the filing fee, you can include a Poverty Affidavit or Indigient Fee Waiver. This form asks that you be allowed to file without paying a fee upfront. You may still be responsible for paying the fee at the end of the case. You will have the option to add the Poverty Affidavit to the packet when you complete the Non-Parent Custody Form Assistant.
One of the forms in the packet will be a Request for Service, where you name all the necessary parties and their addresses where they can be served. You are responsible for letting the court know how you’d like the other party served.
- Certified mail. Certified mail is the most common and least expensive option.
- Service by the sheriff or bailiff. Service by the sheriff or bailiff costs money. Depending on where you live, it may be expensive. This type of service can be helpful in some cases, like if the other party is abusive or threatening you.
- Service by publication is the most expensive way to serve someone, but it’s the only option if the other party’s location is unknown, or if the father is unknown and “John Doe” is listed as the father on your custody filing. For service by publication, you pay to publish your filing notice in a local paper.
If you file with a Fee Waiver or Poverty Affidavit because you cannot afford the filing fee, you may be eligible to serve “John Doe” or parties with unknown addresses through “service by posting.”
Check your court’s local rules about the cost and length of time required for service by publication and posting. You can find your court's local rules on the Supreme Court of Ohio’s website, or look for them on the court's website.
About 2 weeks after you file, check to see if service was successful by:
- Contacting the clerk of court’s office. Ask the clerk of court’s office if service succeeded.
- Checking the clerk’s online docket. Check if service succeeded for every party. Look for words like “failed service” in your case’s docket.
If service failed for any of the parties, you must complete another Request for Service form. On that form, check “Other” and select “Certified mail, return receipt requested.”
If the mail is returned as “Addressee Unknown” or “Insufficient Address,” try to find the other party's address using every resource that you can, including Google and social media. Then you should file a new "Request for Service" form and request service to the new address. On the Request for Service form, check “Other” and specify “Certified mail, return receipt requested.”
If certified mail service is refused or unclaimed, you should go to the Clerk’s office again and fill out another "Request for Service" form. This time, request service by regular mail instead of certified mail to the same address.
Wait another two weeks. Then call the Clerk to make sure the papers were sent out. If they were, your service is complete and you should prepare for your hearing. If the papers are unsent, ask the Clerk why and request that they send it again.
Sometimes, there may be problems completing service for practical reasons like the other party doesn't have a good mailing address or is moving around a lot. In a situation like this, you can ask the other party to complete a "Waiver of Service" form. This form allows the other party to tell the Court that they have received a copy of your court filing and are waiving the requirement that service be completed. If the other party completes this form and you file it with the Court, service does not need to be completed for the case to move forward. Check your Court's website or call the Clerk's office to see if they offer a Waiver of Service form.
At the hearing
After you file the case, the court schedules a hearing. If service is unsuccessful, the Court may reschedule the hearing. If service is unsuccessful, contact the court to see if the hearing must be rescheduled.
Learn how to prepare for your hearing.
Custody cases can be complicated, especially when multiple people want custody. Speaking with a lawyer can help you understand all of your options and their legal consequences.