Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, September 20, 2005

Case Law Development: Due Process prhibits "change of circumstance" standard for change of custody from nonparents to parents

When grandparents have temporary custody of a child, what is the standard to be applied if the child’s parents request a modification of that custody arrangement?  The Ohio Court of Appeals has held that requiring proof of a change in circumstances, the test used for modification of custody in most instances, would be unconstitutional when applied in this case.  The court affirmed the trial court’s use of the best-interest-of-the-child standard to return a boy to his parents.

The court distinguished those cases where a non-parent has been granted permanent custody, as that order cuts off parental rights.  A temporary order of legal custody, however, leaves residual parental rights that are protected by due process.

In re Brayden James, 2005 Ohio 4847; 2005 Ohio App. LEXIS 4394 (September 16, 2005)

Opinion on the web at (last visited September 20, 2005 bgf).

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