Local Rule 8
PRACTICE IN DIVORCE, DISSOLUTION AND LEGAL SEPARATION
8.01 COMMENCEMENT OF THE ACTION
(A) In every case of divorce, dissolution, annulment or legal separation, where there are no minor children, the Plaintiff shall file with the complaint or petition, the following affidavits: 1) Personal History of the Parties (DR1); 2) Affidavit of Income and Expenses (Affidavit 1); 3) Affidavit of Property (Affidavit 2); and 4) Health Insurance Affidavit (Affidavit 4). The Defendant shall also file the same affidavits with the answer or cross complaint. The Clerk of Courts shall not accept for filing any complaint, petition, answer or cross complaint in these actions which are not accompanied by the forms listed above. [The Clerk of Courts may accept the court’s previous DR forms for a period of 90 days following the effective date of these rules.]
(B) In every case of divorce, dissolution, annulment or legal separation, where there are minor children, in addition to the forms listed above, the Plaintiff shall file with the complaint or petition and the Defendant shall file with the answer or cross complaint the Parenting Proceeding Affidavit (Affidavit 3) and IV-D application. The Clerk of Courts shall not accept for filing any complaint, petition, answer or cross complaint in these actions where minor children are involved which is not accompanied by the affidavit and application listed above. [The Clerk of Courts may accept the court’s previous DR forms for a period of 90 days following the effective date of these rules.]
(C) All forms listed above are available through the Clerk of Courts. Affidavits 1 through 5 are also available through the Ohio Supreme Court website.
(D) The information contained in all required Domestic Relations forms and affidavits shall be treated in hearings and in consideration of the cause of action as though it were obtained in answer to questions propounded by the Court to the party filing said forms, and shall be subject to cross examination in all proper respects.
(E) The caption in every complaint, petition, motion and all orders shall state the name and address of all parties (which the Court deems as necessary to comply with State and Federal regulations and to properly identify the parties), and shall include a title of its content. If any information is not known, there shall be a certification that this information is unknown in its place.
(F) The caption of all subsequent pleadings, motions, briefs or other papers shall also state the case number assigned, the SEA number if assigned, and the name of the Judge and Magistrate to whom the case is assigned.
(G) All papers filed with the Clerk of Courts by an attorney shall bear the attorney's name, Ohio Supreme Court registration number, firm name (if any), office address, telephone number and a designation of which party they represent.
(H) The party filing a complaint for divorce; petition for dissolution, complaint for legal separation or complaint for annulment shall file, with the Clerk of Courts, the original with four (4) copies when there are children or the original and three (3) copies when there are no children.
8.02 PROCEDURE FOR SEEKING TEMPORARY ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES
(A) At any time during the pendency of an action of divorce or legal separation involving parental rights and responsibilities and support of minor children, either party may seek temporary allocation of parental rights and responsibilities by filing a Motion and Affidavit or Counter Affidavit for Temporary Orders Without Oral Hearing using Affidavit 5. The party that files the motion shall also present to the Magistrate’s office a proposed Magistrate’s Order temporarily allocating parental rights and responsibilities. Failure to submit a proposed Magistrate’s Order shall result in the dismissal of the motion. Unless otherwise ordered by the Court, said entry shall order as follows:
(1) Name which parent is temporary residential parent and legal custodian;
(2) Address parenting time for the noncustodial parent;
(3) Support for minor child(ren) and an effective date for the commencement of the obligation which shall be established as follows:
(a) Child support must be calculated and an order filed in accordance with the Ohio Revised Code. The calculation must be supported by a worksheet or summary.
(b) In addition to the monthly support payments, the temporary order shall also order payment of extraordinary medical, hospital, dental and optical expenses on an equal basis.
(c) All orders of support shall include a provision for processing charge and shall be payable through Ohio Child Support Payment Central.
(B) Where the parties are residing together, the order shall direct both parties to be responsible for the payment of all household expenses and to provide full and adequate support for the children to the extent of their financial abilities without any provision as to the allocation of parental rights and responsibilities. In the event the parties cease to reside together in the same residence, the residential parent may seek child support. If the children are living in the same house with both parents when the complaint for divorce is filed, neither parent shall remove the children from the marital residence without prior Court approval.
8.021 STANDARD PARENTING TIME SCHEDULE
(A) In accordance with R.C. 3109.051(F)(2), the Court adopts as its standard parenting time guidelines the schedule attached hereto as an Appendix for those cases where parents live within 90 miles of each other. Unless the parties agree otherwise or subject to a modifying order, the parenting time schedule shall be the temporary and permanent order of this Court relative to the rights and obligations of the residential and non-residential parents. The factors set forth in the Ohio Revised Code and the best interests of the child(ren) have been considered in establishing this order.
8.022 OUT-OF-STATE PARENTING TIME SCHEDULE
(A) In accordance with R.C. 3109.051(F)(2) and recognizing the needs of children and parents who live significant distances from each other, the Court adopts as its standard parenting time guidelines the schedule attached hereto as an Appendix for those cases where parents live more than 90 miles from each other. The factors set forth in the Ohio Revised Code and the best interests of the child(ren) have been considered in establishing this order.
8.03 PROCEDURE FOR SEEKING TEMPORARY SPOUSAL SUPPORT
(A) Either party may request a temporary order with regard to temporary spousal support and/or an allowance for expenses by filing a Motion and Affidavit or Counter Affidavit for Temporary Orders Without Oral Hearing using Affidavit 5. Copies of such motions, affidavits and counter-affidavits shall be served in accordance with the Civil Rules. The party that files the motion shall also present to the Magistrate’s office a proposed Magistrate’s Order granting the relief requested. Failure to submit a proposed Magistrate’s Order shall result in the dismissal of the motion.
(B) The Court may upon review of the affidavits submitted grant the request, refuse to issue a Civ. R. 75 order or may set the matter for an evidentiary hearing.
8.04 PRACTICE ON TEMPORARY ORDERS
(A) All temporary orders may be executed by a Judge or Magistrate.
(B) Upon the issuance of a temporary order upon affidavit, either party may request an evidentiary hearing to have the Magistrate consider modification of said Order. A request for an evidentiary hearing must be filed in the Clerk of Courts’ office within twenty-eight (28) days of the issuance of the Order accompanied by an entry setting hearing with service of a copy on opposing party or counsel. Such matters shall be set for hearing by Magistrate’s Order, within twenty eight days with notice according to Civil Rules. Said request does not stay the temporary orders.
(C) Any modification of a temporary child support order shall be consistent with R. C. Chapter 3119.
8.05 TEMPORARY RESTRAINING ORDERS
(A) Motions for restraining orders as provided by the Ohio Rules of Civil Procedure relating to domestic cases shall be accompanied by affidavits sworn to absolutely, setting forth the specific basis of the required relief. These motions and orders shall be filed separate from the complaint or other pleadings.
(B) Further all entries ordering temporary restraining orders shall be filed separate from the motion.
(C) If considered meritorious, these restraining orders may be granted ex parte by the Judge or Magistrate. After journalization the Clerk of Courts shall serve a certified copy of the order on the affected party at the address in the complaint, counsel of record for the affected party, if any, and any other individual or institution affected by the order. All service shall be by regular mail unless otherwise requested.
8.06 SEMINAR FOR PARENTS
(A) This rule applies to all parents in all original divorce, dissolution and paternity actions and (other domestic relations actions as ordered by the Court) filed after March 1, 1995, where the interests of children under 18 years of age are involved.
(B) All parents shall successfully complete the educational seminar entitled “Helping Children Succeed After Divorce.”
(C) The program shall be successfully completed prior to the filing of the decree of dissolution or within forty-five days of the service of the original complaint upon the parent Defendant.
(D) Upon a party’s failure to successfully complete the seminar pursuant to this rule, the assigned Judge may take any appropriate action, including but not limited to actions for contempt and/or denial of parenting time.
(E) For good cause shown, the assigned Judge may waive the requirement of completion of this seminar in individual cases.
(F) The attorney for the moving party shall complete and file a Magistrate’s Order (Parenting Seminar Pre-Registration) form along with the Complaint for Divorce to be served on opposing party. (See DR Form 21).
(G) For good cause shown upon written application the Administrative Judge may permit attendance with completion of the Seminar by persons who are not parties in divorce, dissolution, or paternity actions originating in Miami County Common Pleas Court General Division. Each written application shall include:
(1) A true copy of a Court Order which compels the applicant’s attendance and completion of a similar seminar in conjunction with a pending domestic relations proceeding.
(2) A certification from the Assignment Commissioner of the Magistrate’s Office verifying there is availability for the attendance of the applicant on the date requested.
(3) Payment in the amount of $50.00 per applicant payable in advance to the Clerk of Courts at the time the application is made for cases not originating in Miami County Common Pleas Court General Division or Juvenile Division. Payment in the amount of $10.00 per application payable in advance to the Clerk of Courts at the time payment is made for cases originating in the Juvenile Division of Miami County Common Pleas Court.
(4) The Application shall be submitted to the Administrative Judge who shall indicate whether approval is granted on the application prior to the filing of the application with the Clerk of Courts.
8.07 CONTESTED DIVORCE ACTIONS
A divorce action shall be considered contested when the Defendant files an answer or counter-claim within 42 days following service of the divorce complaint.
8.08 UNCONTESTED DIVORCE ACTIONS
(A) An uncontested divorce action is defined as an action for divorce where no answer or other responsive pleading has been filed by the Defendant within forty-two (42) days of service of the complaint.
(B) Temporary issues in these actions shall be subject to the same rules as provided for in contested actions.
(C) In uncontested actions where the parties have entered into a written separation agreement there shall be submitted to the court a written statement by any party not represented by counsel that they waive advice of counsel.
(D) In all uncontested divorce actions where the Defendant is not represented by counsel the Clerk of Court shall forward a copy of all court orders, temporary or final, to the Defendant at their last known address and charge the costs to the case.
8.09 DESIGNATION OF MIAMI COUNTY LOCATIONS FOR THE POSTING OF NOTICE OF SERVICE OF PROCESS IN DIVORCE, ANNULMENT AND LEGAL SEPARATION ACTIONS
(A) The following locations are hereby designated as locations for posting of notices for service by publication in divorce, annulment and legal separation actions, pursuant to Ohio Rule of Civil Procedure 4.4.
(1) Miami County Safety Building 201 N. Main Street, Troy, OH 45373
(2) Department of Jobs and Family Services 2040 N. Co. Rd. 25-A, Troy, OH 45373
(3) Miami County Municipal Building (Piqua Office) 1105 Wayne Street, Piqua, OH 45356
8.10 PRETRIAL AND PREHEARING CONFERENCES
(A) A pretrial conference will be held in all cases involving divorce, legal separation, annulment and modification of parental rights and responsibilities. The attorneys and the parties shall be present for the pretrial conference unless other arrangements are made with the Court prior to the conference.
(B) The purpose of the pretrial conference includes:
(1) Narrow the legal issues;
(2) Admit to facts not in dispute;
(3) Exchange records;
(4) Discuss discovery and appointment of needed experts.
(C) Failure of the parties to appear, or failure of the attorneys to be prepared, or to appear, or to cooperate in good faith in conducting the pretrial conference may subject the attorney or party to sanctions pursuant to the Ohio Rules of Civil Procedure.
8.11 DISSOLUTION OF MARRIAGE ACTIONS
In all dissolution of marriage actions where only one party is represented by counsel, it must be affirmatively stated in writing by the unrepresented party and filed with the Clerk of Courts that said party waives representation by counsel and is proceeding without advice of counsel on the form approved by the Miami County Common Pleas Court designated as Form DR 4.
8.12 CHILD SUPPORT CALCULATION
Prior to any hearing on the merits, an uncontested divorce, dissolution or legal separation involving minor children, the movant shall submit to the court a completed child support computation worksheet and a proposed Form DR 16.
8.13 FINAL ORDERS
(A) General Decrees and agreed orders shall have titled paragraphs identifying the content of each paragraph, e.g., Spousal Support, Allocation of Parental Rights and Responsibilities, Health Insurance Coverage, Child Support, Parenting Time Schedule, Real Estate, Pension/Retirement, Debt Allocation, Personal Property, etc.
(B) Child support provisions, including the payment of health care expenses and provision of health insurance shall be established utilizing Form DR 16. The Decree of Divorce or Legal Separation shall include a provision protecting any arrearage due to public assistance reimbursement.
(C) Spousal support provisions shall provide the following: monthly amount; effective date; duration of the obligation; grounds for termination; e.g., death, remarriage; whether continuing jurisdiction is retained and under what conditions; and if arrearages are present, monthly payment on arrearage. Payments shall be made through the Office of Child Support, Ohio Child Support Payment Central (OCSPC) by certified check, or money order, plus the two percent (2%) processing charge until such time as said amounts are withheld by the withholding notice.
(D) In a case in which spousal support is the only support ordered, the parties may by agreement, with the Court’s permission, waive payment of the spousal support through the Ohio Support Payment Central (OCSPC). The parties must provide an independent record of payments, such as electronic transfers, automatic bank withdrawals or other method approved by the court.
(E) If the issue of a child’s parentage has been raised by either party or the court, then the decree shall make the appropriate finding of paternity or non-paternity. The decree should identify the child by name and date of birth and should indicate whether the child was born during or prior to the marriage and how parentage has been determined, e.g. genetic testing, agreement, acknowledgment, adoption, prior marriage. It should also direct the Ohio Department of Health to create a corrected birth record.
(F) The following language shall be included in all parenting time orders:
(1) Out-of-state relocation: Neither party shall relocate the children out of state without first obtaining a modified parenting time order and approval of the court. The parties may submit an agreed order modifying parenting time, with a provision for allocation of transportation expense, to the court. If the parents are unable to agree, the relocating parent shall, prior to relocation, (a) file a motion to modify the parenting time schedule, (b) set a hearing, and (c) obtain a modified parenting time order.
(2) Access to records: The non-residential parent shall have access to the same records, school activities and any day-care center which the children attend on the same basis that access is available to the residential parent, unless a restrictive order has been obtained from the court.
(3) Notice of change of address: Both parents shall give written notice to the other parent immediately upon any change of address or change of phone number, unless a restrictive order has been obtained. A copy of the notice, including the parties’ names and case number shall be filed with the Miami County Clerk of Courts.
(G) A party requesting restoration of a former name may submit within a reasonable time after the final hearing a separate proposed entry setting forth the party’s complete name before and after the requested change and current address.
(H) Decrees and agreed entries (except temporary or interim orders) shall designate which party shall pay court costs. In the event costs are to be shared, percentages are to be identified with each named party. If court costs are not addressed, the costs shall be paid by the Plaintiff in an original action and the movant in a post-decree action.
(I) Any decree or post-decree agreed order shall be denoted as a Final Appealable Order directly beneath signatures.
(J) The party submitting the decree or agreed entry shall file with the Clerk of Courts the original with four (4) copies when there are children or the original and three (3) copies when there are no children.
(K) In all actions, original or post decree, final orders shall carry a “prepared by:” signature line.
8.14 POST JUDGMENT RELIEF – PARENTING TIME, CHILD SUPPORT, MODIFICATION OF PARENTAL RIGHTS AND RESPONSIBILITIES, SPOUSAL SUPPORT, LUMP SUM JUDGMENT
(A) Any motion requesting modification of parental rights and responsibilities and/or modification of parenting time, child support, spousal support, and/or lump sum judgment shall contain a brief statement by the moving party setting forth the modification requested and the legal and factual basis supporting the relief and the following forms:
(1) Modification of parental rights and responsibilities and/or modification of parenting time – Affidavits 1,3, and 4;
(2) Child Support – Affidavits 1, 3, and 4;
(3) Spousal support – Affidavit 1.
(B) All motions will be set for hearing or pretrial conference at the time they are filed. The attorney shall submit a “Magistrate’s Order Setting Hearing” along with the motion to the Magistrate’s assignment commissioner for scheduling before filing the pleadings. Failure to comply will result in the motion not being set for hearing and dismissal of the motion.
(C) Where public assistance funds have been provided to the client, all motions for lump sum judgment shall contain a statement of the amount of public assistance funds due. The Child Support Enforcement Agency shall be joined as a party to the motion when public assistance funds are due unless it files a disclaimer as to any interest in these arrearages.
(D) A motion to modify a prior order should include a reference to the date and language of the prior order, the reasons for requesting a modification, and the change requested.
(E) An Agreed Entry to modify a prior order related to the allocation of parental rights and responsibilities may be submitted as a consent judgment entry signed by both parties. No motion is required to be filed.
(F) All motions for lump sum judgment or to show cause shall contain a reference to the date and language of former orders on which the motions are based and the facts constituting the violation.
(G) Failure to abide by these rules may result in the dismissal of the motion.
8.15 POST JUDGMENT RELIEF ACCOMPANIED BY CITATION FOR CONTEMPT
(A) Specifically state the basis for the contempt citation.
(B) Contain notice of hearing and before filing shall be submitted to the Magistrate’s assignment commissioner for scheduling.
(C) Notice of hearing shall be served with the motion and citation pursuant to the Civil Rules.
(D) Motions requesting sanctions provided by the Ohio Revised Code shall be served with a Notice and Summons to Appear.
8.16 MODIFICATION OF PARENTAL RIGHTS AND RESPONSIBILITIES (POST-DECREE CHANGE OF CUSTODY)
(A) When a post-decree modification of parental rights and responsibilities is sought, the party so moving shall comply with Loc. R. 8.14. The motion will be set for a Pre-Hearing Conference/Non-Contested Hearing before a Magistrate, at which time further hearings, referrals, investigations, assessments, etc. will be discussed and scheduled. If service on the other party is valid and there is a failure by that party or counsel to appear, an uncontested custody hearing shall take place.
(B) The Magistrate’s Order Setting Hearing for a modification of parental rights and responsibilities shall include the following language:
“This motion has been scheduled for a pretrial conference and uncontested hearing on ________________, at ___________ .m. before Magistrate _______________. The parties, with or without counsel, shall be present on the above date at the Third Floor, Safety Building, 201 West Main Street, Troy, Ohio.
Failure to appear may result in dismissal of the motion or an uncontested hearing on the motion.”
(A) In addition to Local Rule 4.03, all requested for continuances shall be by written motion on a form prescribed by the Court. The movant shall first attempt to secure consent of the opposing party; set forth in the motion whether consent was obtained or denied; the reason for the continuance and shall state the number of prior continuances. The party seeking the continuance shall immediately notify the opposing party or counsel of the Court’s ruling on the continuance. (See DR Form 19-20).
(B) If a continuance is requested due to a scheduling conflict a copy of the hearing notice shall be submitted with the motion for continuance. Also, the party seeking the continuance shall submit self-addressed stamped envelopes with the motion and hearing notice.
(C) The party seeking the continuance shall submit an entry granting/denying the motion and self-addressed stamped envelopes with the motion and entry.
8.18 SETTLED JUDGMENT ENTRIES
(A) In cases where contested actions have been settled and the attorney has been required to submit a judgment entry, the judgment entry shall be submitted to the Magistrate assigned to the case within twenty (20) days of the trial date, unless an extension of time is granted. Failure to comply with this rule shall result in the automatic dismissal of the motion by the Court.
(B) The Court may order either counsel to prepare the judgment entry setting forth the agreement of the parties. Unless otherwise designated, the movant is required to prepare the judgment entry. Said judgment entry shall be submitted to the opposing counsel prior to the submission to the Court. If counsel is unable to agree upon the judgment entry, the opposing counsel shall notify in writing, within five (5) days, the counsel who prepared the entry. Both counsels may thereafter submit an entry to the Court within ten (10) days of the written notice, and the Court shall direct which entry shall be filed. A judgment entry sent for signature which is not returned or rejected by opposing counsel within five (5) days, may be submitted to the Court without the signature of the opposing counsel or party, if the agreement was read on the record. All judgment entries not signed by both parties or legal counsel shall be accompanied by a copy of the transmittal letter indicating the date sent to the opposing counsel or party.
(C) If the agreement was not read on the record and a consent judgment entry cannot be agreed upon, Counsel should timely seek a new trial date.
8.19 DISMISSAL OF CASES
(A) The Magistrate shall review or cause to be reviewed quarterly all assigned cases. Cases which have been on the docket for six (6) months without any proceedings taken therein, except cases awaiting trial assignments, may be dismissed for want of prosecution, unless good cause is shown to the contrary.
(B) Upon failure to comply with any local rule, statute, order, civil rule, or failure to timely journalize, the Magistrates may, after notice to counsel or a party (if they are unrepresented), exercise any sanction provided by the Civil Rules including dismissal.
(C) If the movant fails to obtain service upon their complaint or motion within 90 days of filing, the Court may dismiss same for want of prosecution.
(D) Once a case and/or motion has been dismissed other than upon its merits, it will not be reinstated unless a motion is filed within a reasonable time stating the reason for the request, and serving the same upon opposing counsel, or if there is no opposing counsel, upon the other party or parties. Said case may immediately be scheduled for pre-trial and trial upon being reinstated.
(E) The unexcused failure of an attorney and/or party to appear for a hearing at the scheduled time, may result, within the discretion of the Court, in subjecting the offending person to any or all of the sanctions provided by Civil Rule 37, including dismissal.
(F) The Court may dismiss an action upon the showing that either party has failed to comply with all pre-trial orders.
8.20 ATTORNEY FEES
(A) Any request for attorney fees shall contain the following:
(1) The request shall be in writing;
(2) It shall be itemized as to services rendered;
(3) It shall contain the number of hours and the hourly rate for each service rendered.
(4) Failure to comply with the foregoing may result in the denial of the request of fees.
(B) The Court shall retain the right to award attorney fees to opposing counsel, without the filing of a written motion, upon a finding that the motion was spurious; that there was undue delay in proceeding with the case; or that there was an unexcused absence.
8.21 PSYCHOLOGICAL EVALUATIONS/GUARDIAN AD LITEM REPORTS
(A) Reports of psychological evaluations and guardian ad litem shall be submitted to the Magistrate’s office.
(1) The guardian ad litem report shall be available for review by counsel and the parties at the office of the assigned Magistrate. It is strongly recommended that counsel and/or the parties call the Magistrate’s office to schedule a time to review the report to ensure that personnel are available to assist them.
(2) The report may not be taken from the third floor of the Safety Building without approval from the assigned Magistrate or Judge.
(3) The report may not be copied or recorded by any means.
(4) The parties shall cooperate with psychological evaluation, including, but not limited to, making the minor children available to the psychologist.
(B) The Administrative Judge is hereby designated as the contact person to accept and consider written comments and complaints regarding the performance of guardians ad litem. The Administrative Judge may designate a court staff person to complete any investigations required and maintain the appropriate records for approved guardians ad litem consistent with the Court’s local rules and Rule 48 of the Rules of Superintendence. The Chief Magistrate shall maintain files for all applicants and for individual’s approved for appointment of guardians ad litem with the court. The files shall contain all records and information required by Rule 48 of the Rules of Superintendence, and by local rules, for the selection and service of guardians ad litem including a certificate or other satisfactory proof of compliance with training requirements.
(C) Prior to the guardian ad litem being placed on the approved guardian ad litem list, he or she shall submit to a civil background check, and criminal background check through the Miami County Sheriff’s Department on an annual basis.
(D) The procedure for appointing/removing a Guardian Ad Litem shall be as follows:
(1) If a motion for Guardian Ad Litem is filed, it will be set for hearing before a Magistrate.
(2) If the parties request a Guardian Ad Litem for the first time during a pretrial conference, the Court will appoint a Guardian Ad Litem that is agreed upon by the parties.
(a) If there is an agreement, one of the attorneys will prepare a motion for Guardian Ad Litem requesting the agreed upon Guardian Ad Litem and a Magistrate’s Order appointing the agreed upon Guardian Ad Litem.
(b) If the parties cannot agree on a Guardian Ad Litem, a motion for Guardian Ad Litem must be filed and the request will be set for hearing.
(c) The Court will appoint a Guardian Ad Litem from the court’s approved guardian ad litem list and said appointment will be on a rotating basis when the parties do not agree.
(3) For good cause shown, a Guardian Ad Litem may be removed from their services. To remove the Guardian Ad Litem, the party must file a motion with the Court which will be heard by a Magistrate.
(4) The Court may remove a Guardian Ad Litem from the list of approved Guardians Ad Litem for a failure to abide by this rule or other just cause as deemed appropriate by the court. The final decision will be made by the administrative Judge after consultation with the other Judge.
(5) Whenever feasible, the same Guardian Ad Litem shall be reappointed for a specific child in any subsequent case in any court relating to the best interest of the child.
(E) Responsibilities of a Guardian Ad Litem:
(1) In order to provide the Court with relevant information and an informed recommendation regarding the child’s best interest, a Guardian Ad Litem shall perform, at a minimum, the responsibilities stated in this division, unless impracticable or inadvisable to do so.
(2) A Guardian Ad Litem shall represent the best interest of the child for whom the Guardian Ad Litem is appointed. Representation of best interest may be inconsistent with the wishes of the child whose interest the Guardian Ad Litem represents.
(3) A Guardian Ad Litem shall maintain independence, objectivity and fairness as well as the appearance of fairness in dealings with parties and professionals, both in and out of the courtroom and shall have no ex parte communications with the Court regarding the merits of the case.
(4) A Guardian Ad Litem is an officer of the Court and shall act with respect and courtesy to the parties at all times.
(5) A Guardian Ad Litem shall appear and participate in any hearing for which the duties of a Guardian Ad Litem or any issues substantially within a guardian’s ad litem duties and scope of appointment are to be addressed.
(6) A non-attorney Guardian Ad Litem must avoid engaging in conduct that constitutes the unauthorized practice of law, be vigilant in performing the guardian’s ad litem duties and request that the Court appoint legal counsel, or otherwise employ the services of an attorney, to undertake appropriate legal actions on behalf of the guardian ad litem in the case.
(7) A Guardian Ad Litem who is an attorney may file pleadings, motions, and other documents as appropriate under the applicable rules of procedure.
(8) When a Court appoints an attorney to serve as both the Guardian Ad Litem and attorney for a child, the attorney shall advocate for the child’s best interest and the child’s wishes in accord with the Rules of Professional Conduct. Attorneys who are to serve as both Guardian Ad Litem and attorney should be aware of ethical conflicts and act accordingly.
(9) When a Guardian Ad Litem determines that a conflict exists between the child’s best interest and the child’s wishes, the Guardian Ad Litem shall, at the earliest practical time, request in writing that the court promptly resolve the conflict by entering appropriate orders.
(10) A Guardian Ad Litem shall avoid any actual or apparent conflict of interest arising from any relationship or activity including, but not limited to, those of employment or business or from professional or personal contacts with parties or others involved in the case. A Guardian Ad Litem shall avoid self-dealing or associations from which the Guardian Ad Litem might benefit, directly or indirectly, except from compensation for services as a Guardian Ad Litem.
(11) Upon becoming aware of any actual or apparent conflict of interest, a Guardian Ad Litem shall immediately take action to resolve the conflict, and shall advise the court and the parties of the action taken and may resign from the matter with leave of Court, or seek court direction as necessary. Because a conflict of interest may arise at any time, a Guardian Ad Litem has an ongoing duty to comply with this division.
(12) Unless excepted by statute, by court rule consistent with this rule, or by order of court pursuant to this rule, a Guardian Ad Litem shall meet the qualifications and satisfy all training and continuing education requirements under this rule and under any local court rules governing Guardians Ad Litem. A Guardian Ad Litem shall meet the qualifications for Guardian Ad Litem for each county where the Guardian Ad Litem serves and shall promptly advise each court of any grounds for disqualification or unavailability to serve.
(13) A Guardian Ad Litem shall be responsible for providing the Court or its designee with a statement indicating compliance with all initial and continuing educational and training requirements so the Court may maintain the files. The compliance statement shall include information detailing the date, location, contents, and credit hours received for any relevant training course.
(14) A Guardian Ad Litem shall make reasonable efforts to become informed about the facts of the case and to contact all parties. In order to provide the Court with relevant information and an informed recommendation as to the child’s best interest, a Guardian Ad Litem shall, at a minimum, do the following, unless impracticable or inadvisable because of the age of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with each parent, foster parent, guardian or physical custodian and conduct at least one interview with the child where none of these individuals are present;
(b) Visit the child at his or her residence in accordance with any standards established by the Court in which the Guardian Ad Litem is appointed;
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents, and other significant individuals who may have relevant knowledge regarding the issues of the case;
(e) Review pleadings and other relevant court documents in the case in which the Guardian Ad Litem is appointed;
(f) Review criminal, civil, educational, and administrative records pertaining to the child and, if appropriate, to the child’s family or to other parties in the case;
(g) Interview school personnel, medical and medical health providers, child protective services workers and relevant court personnel and obtain copies of relevant records;
(h) Recommend that the Court order psychological evaluation, mental health and/or substance abuse assessments, or other evaluations or tests of the parties as the Guardian Ad Litem deems necessary or helpful to the Court; and
(i) Perform any other investigation necessary to make an informed recommendation regarding the best interest of the child.
(I) A Guardian Ad Litem shall immediately identify himself or herself as a Guardian Ad Litem when contacting individuals in the course of a particular case and shall inform these individuals about the Guardian’s Ad Litem role and that documents and information obtained may become part of court proceedings.
(II) As an officer of the court, a Guardian Ad Litem shall make no disclosures about the case or the investigation except in reports to the court or as necessary to perform the duties of a guardian ad litem. A Guardian Ad Litem shall maintain the confidential nature of personal identifiers, as defined in Rule 44 of the Rules of Superintendence, or addresses where there are allegations of domestic violence or risk to a party’s or child’s safety. A Guardian Ad Litem may recommend that the Court restrict access to the report or a portion of the report, after trial, to preserve the privacy, confidentiality, or safety of the parties or the person for whom the Guardian Ad Litem was appointed in accordance with Rule 45 of the Rules of Superintendence. The Court may, upon application, and under such conditions as may be necessary to protect the witnesses from potential harm, order disclosure of or access to the information that addresses the need to challenge the truth of the information received from the confidential agencies.
(15) A Guardian Ad Litem shall perform responsibilities in a prompt and timely manner, and, if necessary, an attorney Guardian Ad Litem may request timely court reviews and judicial intervention in writing with notice to parties or affected agencies.
(16) A Guardian Ad Litem who is to be paid by the Court or a party, shall keep accurate records of the time spent, services rendered, and expenses incurred in each case and file an itemized statement and accounting with the Court and provide a copy to each party or other entity responsible for payment.
(F) Training Requirements
(1) In order to serve as a Guardian Ad Litem, an applicant shall have, at a minimum, the following training:
(a) Successful completion of a pre-service training course to qualify for appointment and thereafter, successful completion of continuing education training in each succeeding calendar year to qualify for continued appointment.
(b) The pre-service training course must be the six hour guardian ad litem pre-service course provided by the Supreme Court of Ohio, the Ohio CASA/GAL Association’s pre-service training program, or with prior approval of the appointing court, be a course at least six hours in length that covers the appropriate topics.
(c) To meet the requirements of this rule, the pre-service course shall include training on all the following topics:
(I) Human needs and child development including, but not limited to, stages of child development;
(II) Communication and diversity including, but not limited to, communication skills with children and adults, interviewing skills, methods of critical questioning, use of open-ended questions, understanding the perspective of the child, sensitivity, building trust, multicultural awareness, and confidentiality;
(III) Preventing child abuse and neglect including, but not limited to, assessing risk and safety;
(IV) Family and child issues including, but not limited to, family dynamics, substance abuse and its effects, basic psychopathology for adults and children, domestic violence and its effects;
(V) Legal framework including, but not limited to, records checks, accessing, assessing and appropriate protocol, a guardian’s ad litem role in court, local resources and service practice, report content, medication and other types of dispute resolution.
(2) The continuing education course must be at least three hours in length and be provided by the Supreme Court of Ohio or by the Ohio CASA/GAL Association, or with prior approval of the appointing court, be a training that complies with this rule.
(3) To meet the requirements of this rule, the three hour continuing education course shall:
(a) Be specifically designated for continuing education of Guardians Ad Litem and not pre-service education; and
(b) Consist of advanced education related to topics identified in this rule.
(4) If a Guardian Ad Litem fails to complete a three hour continuing education course within any calendar year, that person shall not be eligible to serve as a guardian ad litem until this continuing education requirement is satisfied. If the person’s gap in continuing education is three calendar years or less, the person shall qualify to serve after completing a three hour continuing education course offered under this rule. If the gap in continuing education is more than three calendar years that person must complete a six hour pre-service education course to qualify to serve.
(5) An individual who is currently serving as a Guardian Ad Litem on the effective date of this rule, or who has served during the five years immediately preceding the effective date, shall have one year from the effective date to obtain the required six hour pre-service training in order to avoid removal from the court’s list of approved Guardian Ad Litem.
(6) Attendance at an Ohio Guardian Ad Litem Training Program approved by the Supreme Court of Ohio or at an Ohio CASA/GAL Association pre-service training program at any time prior to the effective date of this rule shall be deemed compliance with the pre-service training requirement.
(G) Reports of Guardians Ad Litem
(1) A Guardian Ad Litem shall prepare a written final report, including recommendations to the court, within the times set forth in this division. The report shall detail the activities performed, hearings attended, persons interviewed, documents reviewed, experts consulted and all other relevant information considered by the Guardian Ad Litem in reaching the Guardian’s Ad Litem recommendation and in accomplishing the duties required by statute, by court rule, and in the Court’s Order of Appointment. In addition, the final report shall be submitted to the Court and made available to the parties for inspection no less than seven days before the final hearing unless the due date is extended by the Court. Written reports may be accessed in person by the parties or their legal representatives. The Court shall consider the recommendation of the Guardian Ad Litem in determining the best interest of the child only when the report or a portion of the report has been admitted as an exhibit.
8.22 MEDIATION-DOMESTIC RELATIONS ACTIONS
(A) Through Local Rule 8.22 the Miami County Court of Common Pleas, General Division incorporates by reference the R.C. 2170 “Uniform Mediation Act” (UMA), R.C. 3109.052 Mediation of Differences as to Allocation of Parental Rights and Responsibilities and Rule 16 of the Supreme Court of Ohio Rules of Superintendence.
(B) All definitions found in the “Uniform Mediation Act” (UMA) R.C. 2710.01 are adopted by this Court through this local rule including, but not limited to the following:
(1) “Mediation” means any process in which a mediator facilitates communication and negotiation between the parties to assist them in reaching a voluntary agreement regarding their dispute.
(2) “Mediator” means an individual who conducts a mediation.
(3) “Mediation Communication” means a statement, whether oral, in a record, verbal or non verbal, that occurs during a medication or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.
(4) “Proceeding” means either of the following:
(a) Judicial, administrative, arbitral or other adjudicative process, including related pre-hearing and post-hearing motion, conferences, and discovery.
(b) A legislative hearing or similar process.
(C) To promote greater efficiency and public satisfaction through the facilitation of the earliest possible resolution of domestic relations cases the Court has adopted this local mediation rule.
(D) At any time any action under the jurisdiction of this Court may be referred to mediation by the referring party(ies).
(E) The court, on its own motion, or the motion of any of the parties may refer disputed issues to mediation in whole or in part by “Notice of Scheduled Mediation” which shall, at a minimum indicate the date, time, place and contact information of the mediation. All parties and counsel shall advise the assigned Judge or Magistrate of any domestic violence allegations known to them to exist or to have existed in the past, or which become known to them following entry of the order but before conclusion of all mediation proceedings, which allegations involve any two or more persons whose attendance is required by the referral order.
(F) The Judge or Magistrate will determine the eligibility and appropriateness of each referral prior to the commencement of the mediation process and may decline any referral(s) deemed inappropriate.
(G) The following methods may be used to determine the mediator for the case:
(1) The court mediator may facilitate the mediation.
(2) The court randomly assigns a mediator to the case from the Court’s roster of approved mediators.
(3) Specific appointments may be made by the Court taking into consideration the qualifications, skills, expertise, and caseload of the mediator in addition to the type, complexity, and requirements of the case.
(4) Parties may select a mediator from the court roster.
(H) In accordance with all applicable provisions of this rule, if a case is deemed appropriate by the Judge or Magistrate, mediation will be scheduled. A mediator may meet with the parties individually prior to bringing the parties together for any reason including, but not limited to further screening. A mediator may schedule multiple mediation sessions, if necessary and mutually acceptable for the resolution of the issues in party or in their entirety. The case will proceed as follows:
(1) The Court shall utilize procedures for all cases that will:
(a) Ensure that parties are allowed to participate in mediation, and if the parties wish, that their attorneys and other individuals they designate are allowed to accompany them and participate in mediation.
(b) Screen for domestic violence both before and during mediation.
(c) Encourage appropriate referrals to legal counsel and other support services for all parties, including victims of and suspected victims of domestic violence.
(d) Prohibit the use of mediation in any of the following:
(I) As an alternative to the prosecution or adjudication of domestic violence;
(II) In determining whether to grant, modify or terminate a protection order;
(III) In determining the terms and conditions of a protection order; and
(IV) In determining the penalty for violation of a protection order.
(2) Nothing in this division of this rule shall prohibit the use of mediation in a subsequent divorce or custody case even though that case may result in the termination of the provisions of a protection order.
(3) Mediation of allocation of parental rights and responsibilities or the case of, or parenting time with, minor children or delinquency of status offense cases shall abide by all provisions of this rule, mediation may then proceed, when violence or fear of violence is alleged, suspected, or present, only if the mediator has specialized training set forth in “Qualifications” section of this rule and all of the following conditions are satisfied:
(a) The person who is or may be the victim of domestic violence is fully informed, both orally and in writing, about the mediation process, his or her right to decline participation in the mediation process, and his or her option to have a support person present at mediation sessions.
(b) The parties have the capacity to mediate without fear of coercion or control.
(c) Appropriate procedures are in place to provide for the safety of the person who is or may be the victim of domestic violence and all other persons present at the mediation.
d) Procedures are in place for the mediator to terminate mediation if he or she believes there is continued threat of domestic violence or coercion between the parties.
(e) Procedures are in place for issuing written finding of fact, as required by R.C. 3109.052, to refer certain cases involving domestic violence to mediation.
(I) All mediation communications related to or made during the mediation process are subject to the governed by the “Uniformed Mediation Act” (UMA) R.C. 2710.01 to 2710.10, R.C. 3109.052, the Rules of Evidence and any other pertinent judicial rule(s).
(J) In accordance with R.C. 2710.08(A) and (B), the Mediator assigned by the Court to conduct a mediation shall disclose to the mediation parties, counsel, if applicable, and any nonparty participants any known possible conflicts that may affect the Mediator’s impartiality as soon as such conflict(s) become known to the Mediator. If counsel or a mediation party requests that the assigned Mediator withdraw because of the facts so disclosed, the assigned Mediator should withdraw and request that he assigned Judge or Magistrate appoint another Mediator from the list of qualified Mediators that is maintained by the Court. The parties shall be free to retain the mediator by an informed, written waiver of the conflict of interest(s).
(K) If the assigned Mediator determines that further mediation efforts would be of no benefit to the parities, he or she should inform all interested parties and the Court that the mediation is terminated using the procedure required by this Court.
(L) All remaining court orders shall continue in effect. No order is stayed or suspended during the mediation process except by written court order. Mediation shall not stay discovery, which may continue through the mediation process in accordance with applicable rules, unless agreed upon by the parties and approved by the Judge or Magistrate assigned to the case.
(M) The assigned mediator, parties or counsel, if applicable, as agreed by the parties, may immediately prepare a written memorandum memorializing the agreement reached by the parties. The “Mediation Memorandum” may be signed by the parties and counsel (if the “Mediation Memorandum” is signed it will not be privileged pursuant to R.C. 2710.05(A)(1)). The written “Mediation Memorandum of Understanding” may become an order of the court after review and approval by the parties and their attorney, if applicable. No oral agreement by counsel or with parties or an officer of the court will be regarded unless made in open court.
(N) At the conclusion of the mediation and in compliance with R.C. 2710.06 the court shall be informed of the status of the mediation including all of the following:
(1) Whether the mediation occurred or was terminated;
(2) Whether a settlement was reached on some, all of none of the issues;
(3) Attendance of the parties; and
(4) Future mediation session(s), including date and time.
(O) To be a court approved mediator the following qualifications apply:
(1) A mediator employed by the division or to whom the division makes referrals for mediation of allocation of parental rights and responsibilities, the care of, or parenting time with, minor children, abuse, neglect, and dependency, or juvenile perpetrated domestic violence cases shall satisfy all of the following:
(2) Possess a bachelor’s degree, or equivalent education or experience as is satisfactory to the division, and at least two years of professional experience with families. “Professional experience with families” includes mediation, counseling, casework, legal representation in family law matters, or such other equivalent experience satisfactory to the division.
(3) Complete at least twelve hours of basic mediation training or equivalent experience as a mediator that is satisfactory to the division.
(4) After completing the above training, complete at least forty hours of specialized family or divorce mediation training which has been approved by the Dispute Resolution Section of the Supreme Court.
(P) A mediator employed by the division or to whom the division makes referrals for mediation of any case shall complete at least fourteen hours of specialized training in domestic abuse and mediation through a training program approved by the Ohio Supreme Court Dispute Resolution Section. A mediator who has not completed this specialized training may mediate these cases only if he/she co-mediates with a mediator who has completed the specialized training.
(Q) All costs shall be determined by the court, if applicable. The parties may agree between themselves to apportion the costs of the mediation. Unless otherwise agreed by the parties, the mediation costs shall be shared equally. In the event that the parties cannot agree, the Court shall determine the apportionment of the mediation costs to the parties. The Court may waive costs for the parties who are unable to pay. Mediation shall not be ordered where a party is indigent unless the mediation is available at no cost to the party.
(R) If any individual ordered by the court to attend mediation fails to attend mediation without good cause, the Court may impose sanctions which may include, but are not limited to, the award of attorney’s fees and other costs, contempt or other appropriate sanctions at the discretion of the assigned Judge or Magistrate.
(S) Mediators providing services for the Court shall comply with the Model Standards of Practice for Family and Divorce Mediation, and the Special Policy Considerations for the State Regulation of Family Mediators and Court Affiliated Programs as set for in Rule 16 of the Supreme Court of Ohio Rules Superintendence for the Courts of Ohio.
8.23 TIME LIMITS
(A) All actions to establish a support requirement or to modify a previously issued support order are to be completed with the following time limits.
(1) Seventy-five percent of all of the actions shall be completed within six (6) months after the date of the initial filing;
(2) Ninety percent all of the actions shall be completed within twelve (12) months after the date of the initial filing.
(3) Loc. R. 8 is adopted to ensure compliance with the above stated time fame. The above time limits are subject to and superseded by any time limits set forth in the Ohio Revised Code and Ohio Rules of Superintendence.