Like other states, Oklahoma courts use the "best interests of the child" standard to decide child custody and visitation issues. This article answers some common questions about Oklahoma custody and visitation rules. For more information on Oklahoma family law, see our Oklahoma page. You can find all of our articles on custody and visitation in our Child Custody area.
What is child custody?
Child custody refers to all parental rights in the rearing of the child, including the right to direct a child's activities and to make decisions regarding the child's care and control, education, health, and religion. Visitation or time-sharing is a form of custody. Fathers and mothers have the same legal right to seek custody of or visitation with their minor children. This is true in both dissolution of marriage and paternity actions.
What custody options are there?
There are several forms of custody available under Oklahoma law.
- Joint custody. Parents with joint custody share in all or some of the aspects of physical and legal care, custody, and control of their children. Parents apply to the court for a joint child custody plan. The plan sets forth which decisions concerning the children's upbringing will be shared (and which, if any, will not be shared), and plans for time-sharing. The time-sharing schedule will vary with each family's circumstance. It may look like a standard visitation schedule, share the children's time approximately equally between the parents, or follow an entirely different pattern.
- Sole custody. In this arrangement, one of the parties is awarded exclusive control of decisions regarding the children's welfare. This is usually accompanied by the right of reasonable visitation with the non-custodial parent. The term "reasonable" is obviously broad, and the court will interpret it according to the unique facts of the case.
- Split custody. Under the Oklahoma Child Support Guidelines, split custody happens when each parent is awarded custody of one or more of the couple's children.
- Birdnesting. This is a form of divided custody. The children stay in place, and the parents rotate in and out of the children's home on a schedule. The parents may or may not share the alternate living quarters. It requires substantial cooperation between parents and is rarely successful over the long term.
How are custody decisions made?
The court must award custody "in the best interests of the children." Obviously, the best interests of the child will differ from case to case. Here are a few situations courts have considered:
- Domestic abuse. Domestic violence or abuse is a mandatory consideration, which means the court may not disregard it. There is a rebuttable presumption against awarding custody, legal guardianship, or unsupervised visitation to registered sex offenders, anyone living with a registered sex offender, convicted child abusers, persons living with a convicted child abuser, alcohol or drug-dependent persons, domestic abusers, or persons living with a domestic abuser.
- Relationship history. For an initial award of sole custody, the court looks at the relative capacities of the parties to meet the parenting needs of the child. The parent who proves superior skills in meeting the needs of the children will be most likely to prevail. Parents putting together a joint child custody plan must show that they will work together to meet the needs of the child. Each can play to the other's strengths, and shore up the other's weaknesses as part of co-parenting.
- Moral issues. Proof of one parent's immoral behavior is relevant in a custody proceeding only if it is connected to the possibility of harm to the child; this connection is called a "nexus." Exposing the child to improper intimate sexual contact with a lover would provide such a nexus. Exposing the child to drug users in the home would also provide such a nexus.
- Race, gender, and education. Race may not be considered in establishing custody. Oklahoma law specifies that there shall be no gender-based custody preference, and no preference for or against private school, public school, or home schooling in awarding custody.
- Visitation and relationship with the other parent. When it is in the best interests of a child, the court is to ensure "frequent and continuing contact" with both parents. The court should consider, among other factors, which parent is more likely to allow frequent and continuing contact with the other parent.
Does the child have a say in custody?
Historically, the courts looked more to the best interests of a child than to a child's whims, wants and desires. In 2002, the Oklahoma legislature passed a law to provide some deference to the wishes of children age 12 or older. The statute still provides a gatekeeper role for the court. A judge has discretion to determine whether the best interests of a child would be served by the child expressing a preference. Assuming the child's best interests would be served, the court must then consider whether the child is expressing an "intelligent preference." There is a presumption in favor of the choice of a child of age 12 or older. If the court does not abide by the "intelligent preference" of a child of sufficient age, the court must set forth findings of fact supporting the court's decision. The child's testimony may be taken in the judge's office, not in the courtroom.
Do I have to go to a seminar on parenting and divorce, even if I'm a good parent?
You may be a good parent, but separating from the other parent or taking legal action changes your relationship with the other parent drastically. It is important to minimize the effect of those changes on the children. Oklahoma law and local court rules require parents involved in a custody proceeding to attend a divorce education seminar. The seminar will discuss, among other things, the impact of separate parenting and co-parenting on children, visitation and conflict management, stages of child development, and financial responsibility for children. The seminar is not designed for individual therapy.
Tulsa county and all surrounding counties require attendance at the "Helping Children Cope With Divorce" seminar presented regularly throughout northeastern Oklahoma by Family & Children's Services, Inc., a United Way agency. The seminar receives high praise in participant surveys. Please attend with an open mind. If you learn one thing at the seminar that helps you or your children, it will be time well spent.
How do we decide visitation or time-sharing?
Oklahoma law sets forth a policy that supports children having frequent and continuing contact with both parents. It is always in a child's best interests when parents who live separately can agree on how to share physical time with the children. Emotions can cloud a good parent's judgment in this circumstance. When parents cannot agree, the court will impose a specified minimum amount of visitation between the non-custodial parent and the children. The order will encourage additional visitations and encourage liberal telephone communications between the non-custodial parent and the child.
In January 2005, the Administrative Director of the Courts in Oklahoma put forth standard visitation schedules and advisory guidelines for their use. There is no proposed schedule for children through age five. The guidelines suggest that the focus be on the developmental stage of the child, and the involvement of each parent in meeting the routine and developmental needs of the child. For older children, the recommendations become a bit more specific.
The advisory guidelines discuss weekend time (limited or extended), mid-week time sharing (just an evening or overnight), ways to alternate holidays, summer vacation, the mechanics of time-sharing (notice, transportation, etc.), and other special circumstances.
The visitation guidelines provide a frame of reference for someone who has trouble comprehending how parents living in different homes will share time with a child. More or less time for the non-custodian may be appropriate for a given family. The guideline schedules may or may not work for parties crafting a joint child custody plan.
How do I change a custody order if we already have one?
The parent asking that custody be changed must be able to prove that: (1) since the entry of the most recent custody order, there has been a permanent, substantial and material change of conditions, as a result of which (2) the minor child would be substantially better off if the modification were granted.
The change of conditions referred to above concerns the status of the custodial parent's household. Changes in the life of the non-custodial parent are irrelevant in assessing proof of permanent, substantial and material change sufficient to warrant modification. Changes in the non-custodian's life may apply only in deciding whether a child would be substantially better off if custody were changed.
- Sexual relationships. A parent's sexual behavior must relate directly (have a nexus) to the child's welfare to warrant a modification of custody. Where the nexus can be proven, a modification may be in order. A parent's involvement in a same-sex relationship is not sufficient, absent evidence of harm to the child resulting from the relationship, to warrant a change in custody.
- Permanent change. As the test for modification suggests, temporary changes in the custodial parent's household will not support a change in custody. For example, if the custodial parent went through a brief period of having to work longer hours, but that period has now ended, there should be no change in custody.
What if one parent wants to move with the child?
This has been one of the most controversial and contentious areas in domestic relations. In our increasingly mobile society, the chance that a bi-nuclear family will face this dilemma becomes more likely. The one sure result of a parent relocating some distance from the other is that the children will have much less physical contact with the distant parent.
In 2002, the Oklahoma legislature passed a relocation statute providing that a moving parent or custodian must notify the other parent or custodian of an intended move of more than 75 miles approximately two months before the move, or within ten days of learning of the move. The notice must include a number of things, including the moving parent's new address and phone number, when the move will happen, why the mover is moving, and a proposed schedule for sharing time with the children after the move.
Failure to follow the statute and notify the non-moving parent will work against a moving parent in a custody modification proceeding. The court may order the return of the children if the move has already taken place without notice, and may award attorneys fees and expenses to the non-moving party.
The parent who is not relocating has 30 days to file a custody proceeding objecting to the relocation plan proposed. The burden is on the non-moving party to take action during that period or the relocation will be authorized by law.
What do I do when the other parent denies me access to my child?
Willful refusal to provide court ordered visitation can be remedied by a contempt of court action.
The non-custodial parent may also file a motion for enforcement of visitation rights. Upon filing of the motion, the court must either issue an order for mediation or set a hearing on the motion, which shall be not more than 21 days after the motion is filed.
If the court finds that the non-custodial parent's visitation rights have been unreasonably denied or otherwise interfered with by the custodial parent, the court may order make-up visits, posting of a bond which will be forfeited if visitation does not occur, attorneys fees and costs, or another appropriate remedy.
If the non-custodial parent fails or refuses to return the child, the custodian can compel the return of the child by filing a request for the court to order the child returned, known as a writ of habeas corpus.
Can I deny visitation if the other parent isn't paying child support?
No. In this area, courts everywhere take the position that two wrongs don't make a right. Failure to pay child support is not grounds to withhold access to children, nor does failure to provide access to a child excuse a parent's refusal to pay support.