Custody When Ohio Parents Are Not Married
The default rule in R.C. 3109.042, establishing parentage, and asking the court for custody or parenting time
Researched by Dan Martin, Legal Researcher · Published by Onbello Legal
Quick answer
In Ohio, an unmarried woman who gives birth is the sole residential parent and legal custodian of the child until a court issues an order designating another person, and a court making that designation must treat the mother and father as standing upon an equality (R.C. 3109.042(A)). A parent can ask a court to establish parentage and allocate parental rights and parenting time with the uniform Form 23.
The default rule
Under R.C. 3109.042(A), an unmarried woman who gives birth to a child is the sole residential parent and legal custodian until a court of competent jurisdiction issues an order designating another person. When a court makes that designation, it must treat the mother and father as standing upon an equality. R.C. 3109.042(B) contains a narrow exception for a mother who has been convicted of or pleaded guilty to rape or sexual battery and declared under R.C. 3109.501 to be the parent of a child born as a result of that offense.
Establishing parentage
- An acknowledgment of paternity becomes final and enforceable without a court once it is filed with the office of child support, entered in the birth registry, and no longer subject to rescission (R.C. 3111.25). The child is then the child of the man who signed it as though born to him in lawful wedlock, and he assumes the duty of support (R.C. 3111.26).
- The juvenile court has original jurisdiction to determine the paternity of a child alleged to have been born out of wedlock, subject to county exceptions in R.C. 2301.03 (R.C. 2151.23(B)(2)).
- According to the Ohio Department of Job and Family Services, local child support enforcement agencies also provide services that include establishing parentage.
Asking for custody or parenting time
Form 23 (Juvenile Form 2), Complaint for Parentage, Allocation of Parental Rights and Responsibilities and Parenting Time (amended June 1, 2021) is used, its instructions say, to establish parentage, be designated the residential parent, or obtain parenting time. It asks where the children have lived, whether parentage has been established and how (acknowledgment, administrative order, or court order), and whether another court has a parenting or support order. Its instructions say a Request for Service (Form 31), a Parenting Proceeding Affidavit (Affidavit 3), and an Affidavit of Basic Information, Income and Expenses (Affidavit 1) must be filed with it.
The juvenile court has exclusive original jurisdiction to determine the custody of a child who is not a ward of another Ohio court (R.C. 2151.23(A)(2)), and it decides custody under R.C. 3109.04 (R.C. 2151.23(F)(1)). The best interest factors and shared parenting rules described in the other guides apply.
Parenting time for a father
If the father’s acknowledgment has become final, or he has been determined to be the father in a parentage action, he may file a complaint asking the court in the county where the child resides for reasonable parenting time (R.C. 3109.12(A)). The court may grant it if it is in the child’s best interest, considering the factors in R.C. 3109.051(D) (R.C. 3109.12(B)). Grandparents and relatives on either side may also ask for companionship or visitation under the same section.
While a case is pending, the court may make temporary orders on affidavit (R.C. 3109.043). If a parent and child relationship has not yet been established, the court may consider whether a putative father is named on the birth record, the child has his surname, or there is a clear pattern of a parent and child relationship.
Example
Primary sources
Rules and forms change. Check the current version at the source before you file.
- R.C. 3109.042, unmarried mother as residential parent
- R.C. 3111.25 and 3111.26, acknowledgments of paternity
- R.C. 3109.12, parenting time when the mother is unmarried
- R.C. 3109.043, temporary orders
- R.C. 2151.23, juvenile court jurisdiction
- ODJFS child support and parentage
- Uniform Domestic Relations Form 23 (Juvenile Form 2), Complaint for Parentage, Allocation of Parental Rights and Responsibilities and Parenting Time
Common questions
Who has custody when Ohio parents are not married?
Under R.C. 3109.042(A), an unmarried woman who gives birth to a child is the sole residential parent and legal custodian until a court issues an order designating another person, and a court making that designation must treat the mother and father as standing upon an equality. The uniform Form 23 (Juvenile Form 2) is a complaint to establish parentage and ask for an allocation of parental rights and responsibilities and parenting time.
Which Ohio court hears my custody case?
Custody is decided in the court of common pleas, but which division depends on your case. When custody was decided in a divorce or legal separation, later requests are made by motion filed in that original case, which invokes the court's continuing jurisdiction (Civ.R. 75(J)). The juvenile court has exclusive original jurisdiction to determine the custody of a child who is not a ward of another Ohio court (R.C. 2151.23(A)(2)) and original jurisdiction to determine the paternity of a child alleged to have been born out of wedlock (R.C. 2151.23(B)(2)), both subject to exceptions in R.C. 2301.03. That statute organizes the domestic relations division county by county and, in some counties, gives domestic relations judges juvenile court powers, so check how your county's court is organized.
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