I. INTRODUCTION
This article addresses the basic considerations of a child custody case. If a more in-depth approach is needed, then there is a wonderful resource now available here in Oklahoma: the Family Law Section's Practice Manual. There a practitioner will find treatises on the approximately 26 different areas of family law along with the forms. For example, the article on custody and visitation addresses not only the factors to consider in a child custody case but the burdens of proof for an initial custody determination or a modification deriving out of a divorce, separate maintenance, or paternity action.
Before launching headlong into the custody factors, a practice tip is in order. When litigating a custody or visitation modification of an agreed custody or visitation order, don't forget the teachings of Stewart v. Stewart.1 The appellate court in Stewart opined that all evidence relevant to the children's best interest, including that behind an agreed decree, should be considered.
II. FACTORS TO BE CONSIDERED IN A CUSTODY DETERMINATION
A. Gender, Race and Home Schooling
In considering custody, Oklahoma statutes provide there is no legal preference for or against a parent's gender or whether a child is being home-schooled or is attending a public or private school.2 The court must consider which parent "is more likely to allow the child or children frequent and continuing contact with the noncustodial parent."3 The home-schooling issue was addressed in the case of Stephen v. Stephen.4 There, the mother, who was a "great mother" but had no formal education beyond high school, began home schooling the parties' children.5 The children tested well in the Iowa test, responded well to the home schooling, and the mother was an excellent and insightful teacher.6 Hence, the appellate court opined
"[t]he trial court's personal beliefs should not be forced on a custodial parent who has made a legitimate decision for the benefit of the minor children."7
Race is not allowable as a consideration in determining custody. In Palmore v. Sidoti8 the U.S. Supreme Court deemed that just because the custodial mother married a black man in the deep South was not a justification for modifying custody.
B. Failure to Allow Visitation as Basis
If a pattern of failure to allow court-ordered visitation is found and such is contrary to the best interest of the child, that repeated refusal to allow visitation can be grounds for modification of the child custody order.9 If the custody action is successful based upon the denial-of-visitation ground, then the prevailing party "shall be entitled to recover court costs, attorney fees and any other reasonable costs and expenses incurred with the action."10 In Brown v. Brown,11 the court considered one of three factors as determinative in modifying custody; one of those factors was the father had denied the noncustodial mother visitation.
Denial of visitation and/or contact was a determining factor in modifying custody in Hoog v. Hoog.12 There, the custodial father had blocked the noncustodial mother's efforts to send the child birthday cards and new clothes. The child had begun distancing himself from his mother and had begun calling her by her first name.
More of a brightline rule was effected concerning visitation denial and a resulting custody modification in Taylor v. Taylor.13 There, the custodial mother moved to Colorado from Oklahoma City without notifying father. After an agreement was entered for visitation in Colorado, the mother still refused to follow through and impeded all contact the father attempted with the child. Even after admonishment by a judge, the mother still did not allow visitation. Another court order in Colorado had to be entered mandating visitation before the father finally was able to exercise visitation. The appellate court deemed that the Taylor matter was an "extreme case of denial of visitation rights" - the brightline requirement - and custody should be modified.
C. Domestic Abuse as a Factor
The court must consider "evidence of ongoing domestic abuse which is properly brought before it."14 The ongoing domestic abuse must be shown by clear and convincing evidence. If ongoing domestic abuse is proven, then there is a rebuttable presumption that "it is not in the best interest of the child to have custody ... or unsupervised visitation granted to the abusive person."15 Two cases have addressed §112.2. In Brown v. Brown16 the appellate court relied on the VPO statute's definition for domestic abuse.17 After delineating "ongoing" with a two-prong definition, the court defined the phrase "ongoing domestic abuse" as abuse which is still occurring, or has occurred with sufficient frequency and recency to give rise to some expectation that it would continue or would recur, and thus would constitute a threat to any child of whom the abusive person is granted custody.18
In Brown the Court deemed that while there had been several occasions of violence, the abuser should be granted custody of the children.19
Several years later Smith v. Smith20 was promulgated. There, the father had dragged the mother down the sidewalk by her feet, slapped the mother with the child in her arms, given the mother a black eye, flung the child's crib against the wall with the child in it and another time had torn apart the crib, screamed in the child's face to shut up, and had violently shaken the child. The appellate court deemed that the frequency and recency test in Brown had been met and custody should be with the mother.
In Boyd v. Boyd21 a ten-year-old rape conviction of the custodial mother's new husband should have been considered as it related to the child's best interest and the "fitness of the family with which the child would live." The new stepfather's rape conviction was not an isolated incident but instead was just some of the evidence concerning the stepfather's violent past.
D. Preference of a Child
In the 2002 legislative session, 43 O.S.2001 §113 was amended.22 The new standard for considering preference requires that the court "determine whether the best interest of the child will be served by the child's expression of preference."23 If the court deems it is in the child's best interest to express a preference, then the child may do so. While a court is not bound by a child's preference, if a child is of "sufficient age to form an intelligent preference,"24 then the court shall consider the preference. If the court determines that it should not follow the child's preference, then the court must make specific findings of fact "supporting such action if requested by either party."25
The appellate court deemed that a child's preference should be considered in a modification action in Nazworth v. Nazworth.26 Without interviewing the son as the father had requested, the trial court deemed that a child's preference was not a permanent, substantial, and material change of condition and denied the father's custody motion.27 The appellate court reversed, opining that when a child asks for a custody change, "serious consideration" should be given to that request to see if such change would be in the child's best interests.28 The Court of Appeals provided an in-depth discussion of the preference issue and reasoned that
"where the preference is explained by the child and good reasons for the preference are disclosed, the preference and supporting reasons will justify a change in custody."29
In the matter of Adoption of MCD,30 whether the warring parent's daughter should testify in a custody-modification case was addressed by the appellate court in this fashion:
"Based on the testimony of [daughter's] counselor, the trial court inferred that [daughter], if called to testify, would say what she thought [father] wanted her to say instead of independently testifying. Therefore, the trial court did not abuse its discretion in declining to hear [daughter's] expression of preference as to the limits or period of [mother's] visitation rights."
The case relies on pre-2002 §113 language. The opinion does not note the daughter's age.
E. Lifestyle
This category is more of a catch-all. As for live-in lovers, the courts frown on cohabitating.31 If the child is exposed to drug use and raucous living while with the custodial parent, the courts will modify custody.32
In Stover v. Stover33 the father filed a motion to modify custody because the mother had attempted to shoot him at close range, narrowly missing him and the children; had married an ex-convict who had given the mother the gun; had used the child's savings without replacement; and had "rubbed the girl's face in wet bed clothes as a means of curing a bedwetting problem."
F. Interest in Children's Lives and Discipline of Children
The courts measure the interest the parents show in the children as a factor to determine custody.34 In Rice v. Rice35 the affirmed trial court had modified custody after it determined that a child who had medical problems requiring "careful attention" would be better addressed by the father. Uncontradicted was the fact that the mother had also occasionally punished the child by striking her with a leather belt.
G. Stability and Morality
Stability is a factor to be considered when determining custody. In Gilbert v. Gilbert36 the mother had stabilized her life over the years since the divorce while the father, who had been awarded custody initially, had been through a couple of marriages, had moved the child back and forth, and had financial problems.37 The Court in Gilbert deemed that custody should be placed with the mother.38
The Court determined in Brady v. Brady39 that the mother's "gross immoral example" and the father's stability resulted in custody being switched to the father. There, the mother had an affair with a 16-year-old boy. Her young girls -- one an 11-year-old -- would find them in bed together in the morning. In fact, the mother even had the 16-year-old babysit. The father, on the other hand, had stable employment in Dallas, had remarried, and had established a "Christian home."
However, in Gorham v. Gorham,40 immorality alone was not enough to modify custody. The court opined that the effect of the parent's behavior upon the welfare of the child is the true test. In other words, "there must be a showing that [the] requisite nexus is present and that the effect of the behavior is detrimental to the best interests of the child."
Noncustodial parents sometimes attempt to gain custody by virtue of the custodial parent temporary relinquishing custody to them. In Owens v. Owens,41 the noncustodial father had not paid his court-ordered support, resulting in the former marital home awarded to the mother being in foreclosure. Father paid the back amounts due and moved into the house. Mother moved out and temporarily relinquished the children. Father would not return the children to mother and would only let her visit them at his residence. The appellate court deemed that the children should be returned to mother.
The Court in Carter v. Carter42 deemed that a temporary relinquishment of the child by custodial mother to father so the infant could receive necessary medical attention was just that: temporary. The Court noted that the general rule is that a parent who
"in the best interest of the child, relinquishes custody in good faith because he/she is temporarily unable to provide for the child should be able to regain custody by proving that the condition which required relinquishment has been resolved."
The exception would be if the child had become completely integrated into the home of the parent who has temporary custody. The factors to be considered in a temporary relinquishment case are: the duration of the temporary custody; the inclination of the parties as to the permanency of the custody; and the age of the child. Custodial environment of the child is established if over an appreciable time the child naturally looks to the custodian for guidance, necessities of life, and parental comfort.
H. The Question of Sexual Orientation
There are two Oklahoma Supreme Court cases addressing custody and sexual orientation: MJP v. JGP43 and Fox v. Fox.44 In MJP, the mother having sole custody of her 2 1/2-year-old son entered into an openly gay relationship. The little son slept in the same room as the two women, although there was a screen separating the sleeping space. A psychologist testified that homosexuality in itself did not cause a problem for children. However, the societal attitudes could prove harmful to a child once the child reached early adolescence. There the affirmed trial court had modified custody to the father.
Without overruling MJP, the Court in Fox deemed that in light of the Gorham nexus test, the father could not show any "direct harm to the children and that there [were] no signs that the children's school performances and behavior patterns or their relationships with the immediate and extended family, peers, and community [had] been adversely affected" by the mother's gay relationship. There, the children were about 10 and 12 years of age - clearly in that dangerous early adolescence that was discussed in MJP.
I. Relocation of the Custodial Parent
The Oklahoma Supreme Court and the Oklahoma Legislature have begun drawing lines in the sand in the relocation arena. The boxing match first began in the Spring of 2001. Two opinions were promulgated by the Oklahoma Supreme Court back to back: Kaiser v. Kaiser45 and Abbott v. Abbott.46 In Kaiser the parties had engaged in "protracted litigation" since the 1994 divorce. Custodial mother had received a job offer to work for NASA in Washington, D.C. After accepting the job, mother filed a motion to modify father's visitation requesting father have less frequent but longer periods of visitation. Father countersued for custody of the child, alleging that mother "was attempting to 'freeze' him out" of the child's life. Mother's "opportunity of a lifetime" would have given the child education and cultural opportunities that he would not have in Oklahoma City. Further, mother planned on providing videoconferencing equipment to facilitate frequent communication between father and son. Father showed that he and the child had a close relationship, that he fully exercised his visitation, and that he was very involved in the child's life. A guardian ad litem had been appointed and the guardian ad litem advised the court that the move would not be in the child's best interest since it "significantly reduced" the amount of contact between father and son. The Oklahoma appellate court opined that "a custodial parent has a statutory presumptive right to change their child's residence." After providing a lengthy discussion on the relocation law in other jurisdictions, the Court reiterated the Gibbons standard and asserted that "[m]aintaining father's existing visitation schedule was not a sufficient basis for the denial of mother's relocation." The Court further opined that
"[i]n a relocation case the noncustodial parent seeking to restrain the custodial parent from moving must meet a heavy burden to show that circumstances justify reopening the question of custody. The custodial parent's decision to move from Oklahoma to a different location with the child is not in itself a change of circumstances which will justify a change of custody. ... The dispositive issue is the fitness of the custodial parent and whether the child will be placed at risk of specific and real harm by reason of living with the custodial parent in the new location."
The facts in Abbott provide that the child's divorced parents had originally met in Michigan and then moved to Oklahoma to forward father's career. After the divorce in Oklahoma, mother accepted "an unmatchable career enhancing position" in Michigan that offered mother's new family great financial benefits as well as an opportunity for the child to interact with more than 100 of mother's Michigan relatives. The affirmed trial court (on this issue) provided that since mother was the child's "custodial parent, it was up to mother to decide what was best for him, and the court could not 'infringe upon her province as a parent' to make the determination of where they should reside." Hence, reasserting the tenets in Kaiser, the relocation should occur.
In September 2002, the Oklahoma Supreme Court spoke again on the issue of relocation in Casey v. Casey.47 There, the mother received custody of the two children when the parties divorced. One year after the divorce the decree was modified restricting both parents from removing the children permanently from the county. Five years later another motion to modify was filed. Mother wanted to move to Indiana, because her employer, which was closing down the Oklahoma plant, offered her a more lucrative job there. Mother attempted diligently to find employment in Oklahoma but was unsuccessful.
At the trial, the father had no complaints with the mother's parenting abilities. The father asserted that if the children moved their schoolwork might suffer. A teacher testified on the father's behalf that the children were showing adjustment problems relating to the impending move. The mother asserted that she would remain in Oklahoma if she would lose custody of the children. The trial judge noted that while there had been much acrimony in the past between the parents, the children were doing well because of both parents. He ruled the child should remain in Oklahoma and custody would change if the mother moved outside the confines of this state. The mother continued her job search in Oklahoma but was unsuccessful. The parties subsequently agreed that the mother could move on a temporary basis to Indiana.
The Supreme Court reiterated its rulings in Kaiser and Abbott. The Court noted that the mother had "demonstrated a full commitment to the responsibility of parenthood."48 When a trial court is faced with a relocation decision, it should focus on the fitness of the parent and whether there will be any specific harm to the child. Hence, the Court deemed that mother's relocation was really a nonissue.
Less than a couple of months after the Casey decision, 43 O.S.Supp.2002 §112.3 - the new relocation statute - became effective, wiping away the Oklahoma Supreme Court's judicial mandates - at least for the time being.
Now, when a parent (custodial or noncustodial) decides to locate "over seventy-five (75) miles from the child's principal residence for a period of sixty (60) days or more," the complicated provisions of §112.3 are invoked.49 There is a notice that must be sent to the nonrelocating parent50 and it does not matter when the custody order was entered for the notice requirement and the rest of the §112.3 provisions to apply.51
The statute pretty much speaks for itself and can be reviewed online at www.oscn.net. However, this paper discusses factors and the following factors are to be considered when determining a relocation case pursuant to §112.3(J):
1. a. the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life,
b. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child,
c. the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties,
d. the child's preference, taking into consideration the age and maturity of the child,
e. whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating person,
f. whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity,
g. the reasons of each person for seeking or opposing the relocation, and
h. any other factor affecting the best interest of the child.
2. The court may not:
a. give undue weight to the temporary relocation as a factor in reaching its final decision, if the court has issued a temporary order authorizing a party seeking to relocate a child to move before final judgment is issued, or
b. consider whether the person seeking relocation of the child has declared that he or she will not relocate if relocation of the child is denied.52
III. CONCLUSION
In conclusion, it is reiterated that this paper is only a primer. Many of the factors discussed could in and of themselves command the attention of an entire article. A family-law practitioner would do well to take advantage of all that the Family Law Section has to offer to remain on the cutting edge!
ENDNOTES
1. 1980 OK 160, 619 P.2d 606; see also, People of the State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 612, 67 S.Ct. 903, 905, 91 L.Ed. 133 (1947).
2. 43 O.S.2001 §112(B)3)(b) and (4), respectively. A recent example of a custody case where gender was not considered when awarding custody is Acox v. Acox, 2000 OK CIV APP 136, 18 P.3d 363. There, the affirmed trial court determined that in a divorce action the father was the appropriate custodial parent since he worked out of his home and was more available during the week. Due to her work schedule, the mother had less time available for the child. The trial court found that both parents were good parents.
3. 43 O.S.Supp.2000 §112(B)(3)(a).
4. 1997 OK 53, 937 P.2d 92.
5. Id.
6. Id.
7. Id.
8. 466 US 429 (1984).
9. 43 O.S.2001 §112(D).
10. 43 O.S.2001 §112(D)(2).
11. 1992 OK CIV APP 15, 840 P.2d 46.
12. 1969 OK 174, 460 P.2d 946. But see, Pirrong v. Pirrong, 1976 OK 36, 552 P.2d 383 (contemptuous conduct concerning visitation does not necessarily mean custody should be modified).
13. 1984 OK CIV APP 2, 676 P.2d 867.
14. 43 O.S.2001 §112.2.
15. Id.
16. 1993 OK CIV APP 142, 867 P.2d 477.
17. See 22 O.S.2001 §§60 et seq.
18. Id.
19. Id.
20. 1998 OK CIV APP 71, 963 P.2d 24.
21. 1993 OK CIV APP 196, 867 P.2d 492.
22. See 2002 Okla.Sess.Laws, Ch. 373.
23. 43 O.S.Supp.2002 §113(B)(1).
24. 43 O.S.Supp.2002 §113(B)(2). By the way, it is presumed that a 12-year-old is "of a sufficient age to form an intelligent preference." §113(B)(3).
25. 43 O.S.Supp.2002 §113(B)(2).
26. 1996 OK CIV APP 134, 931 P.2d 86.
27. Id.
28. Id.
29. Id.
30. 2002 OK CIV APP 27, 42 P.3d 873.
31. Brim v. Brim, 1975 OK CIV APP 4, 532 P.2d 1403. There, mother had a lover who spent the night at her home several times per week while her three-year-old son was present. The Court deemed that such behavior was basically antisocial, could later impair the child's mental health, and could have a direct effect on the child.
32. Cooper v. Cooper, 1980 OK CIV APP 12, 610 P.2d 1226. There, the mother had begun to use and associated "with persons who habitually used and abused 'intoxicants, narcotics, and other related drugs in the presence of the children.'" The children were being left home alone or with the drug consumers.
33. 1984 OK CIV APP 43, 689 P.2d 952.
34. Park v. Park, 1980 OK CIV APP 19, 610 P.2d 826. In this initial custody case, the mother had shown a lackadaisical interest in the whereabouts of the children and had not been attentive to daycare arrangements. The Court awarded custody to father.
35. 1979 OK 161, 603 P.2d 1125.
36. 1969 OK 133, 460 P.2d 929.
37. Id.
38. Id.
39. 1979 OK CIV APP 60, 603 P.2d 361.
40. 1984 OK 90, 692 P.2d 1375.
41. 1972 OK 26, 494 P.2d 318.
42. 1982 OK 123, 653 P.2d 207.
43. 1982 OK 13, 640 P.2d 966.
44. 1995 OK 87, 904 P.2d 66.
45. 2001 OK 30, 23 P.3d 279.
46. 2001 OK 31, 25 P.3d 291.
47. 2002 OK 70, - P.3d - (Mandate issued 12/5/2002).
48. Id.
49. Section 112.3 (N)(2) provides for an exception if the parties have an existing agreement governing relocation in their court order.
50. The pertinent provisions of §112.3 (C) provide:
C. 1. Except as provided by this section, notice of a proposed relocation of the principal residence of a child or notice of an intended change of the primary residence address of an adult must be given:
a. by mail to the last-known address of the person to be notified, and
b. no later than:
(1) the sixtieth day before the date of the intended move or proposed relocation, or
(2) the tenth day after the date that the person knows the information required to be furnished pursuant to this subsection, if the person did not know and could not reasonably have known the information in sufficient time to comply with the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.
2. Except as provided by this section, the following information, if available, must be included with the notice of intended relocation of the child or change of primary residence of an adult:
a. the intended new residence, including the specific address, if known,
b. the mailing address, if not the same,
c. the home telephone number, if known,
d. the date of the intended move or proposed relocation,
e. a brief statement of the specific reasons for the proposed relocation of a child, if applicable,
f. a proposal for a revised schedule of visitation with the child, if any, and
g. a warning to the non-relocating parent that an objection to the relocation must be made within thirty (30) days or the relocation will be permitted.
3. A person required to give notice of a proposed relocation or change of residence address under this subsection has a continuing duty to provide a change in or addition to the information required by this subsection as that information becomes known.
51. 43 O.S.Supp.2002 §112.3(N)(1). Once again, the exception applies if the parties have an existing agreement governing relocation in their court order.
52. See the discussion concerning Casey v. Casey. There, the mother declared that she would not relocate if it meant losing custody of her children.
