When parents divorce or end their romantic relationship, an immediate worry is who will get custody of the kids. Some parents are able to agree on custody, but if they aren't, a judge will make a custody decision based on the child's best interests. In some cases, a child's custody preference aligns with the child's best interests.
This article explains the impact of a child's preference on Oklahoma custody decisions. If you have additional questions after reading this article, contact a local family law attorney for advice.
Oklahoma's child custody laws recognize two types of custody: physical custody and legal custody. “Legal custody” refers to a parent's right to make important medical, educational, cultural, and religious decisions on the child's behalf. “Physical custody” pertains to where the child lives and how much time each parent will spend with the child.
Judges can award parents joint legal and physical custody, sole legal and physical custody, or some combination of the two. Parents with joint custody will share time with the child and make decisions together. If one parent has sole custody, only that parent will make major decisions for the child and will spend the majority of the time with the child.
A parent without physical custody is still entitled to regular visits with his or her child. Even where a parent has a history of substance abuse or domestic violence, a judge will still likely award that parent visitation rights. In cases where a child's safety is at issue, an abusive parent might receive supervised visits.
Oklahoma law specifies that there's no preference for awarding joint custody over sole custody. However, typically it's in a child's best interests to have regular contact with both parents. Ultimately your family's unique circumstances will determine what type of custody award is most appropriate in your case. See 43 Ok. Stat. § 43-112 (2020).
A child's needs are central to any Oklahoma custody decision. When deciding custody, a judge will consider a number of factors relating to a child's best interests, including:
For more information about custody decisions, the Oklahoma State Courts Network provides links to county courthouses with forms and additional research.
Oklahoma law allows the court to award custody to whomever the court believes is the person most able to meet the child's needs. In most cases, this is one or both of the child's parents unless the court determines that one or both of the parents are unfit. For example, parent's history of domestic violence, child abuse, or substance abuse can lead to a finding that that parent is unfit to be awarded custody of his or her children. See 43 Ok. Stat. § 43-112.5 (2020).
Oklahoma family law judges will not necessarily consider a child's preference in every case. If a child prefers to live with one parent over the other, a judge will assess the child's age and maturity to determine how much weight to give the child's preference. In Oklahoma, generally a judge won't consider the custodial preference of a child under 12. Even when a child's preference is considered, the child's best interests—not the child's wishes—will control the outcome of the case.
Generally, if a child wants to live with the other parent, the court must believe the child is old enough, intelligent enough, and possesses the judgment, maturity, and discretion to express an enlightened opinion about the child's own welfare and future before it will consider the child's opinion.
If the child can only express a whim, such as “Mom lets me stay up later so I want to live with her” or “Dad won't let me play video games on weeknights so I don't want to live with him,” then the court will not admit evidence about the child's preference because the child's opinion is immature and isn't based on reason or facts.
Older children who are able to express a well-reasoned, intelligent preference will likely have their custodial wishes considered.
Child custody orders govern visitation until a child reaches 18 or is emancipated. Each parent is required to follow the terms of a custody and visitation order as long as it is in place. Parents can face legal consequences for preventing visits between the child and the other parent. However, there's no obligation for a parent to force visitation between an unwilling child and the other parent. A parent is probably responsible for taking a toddler to visits with the other parent even if the child is refusing, but a judge likely won't force a parent to take an unwilling 17 year-old to visits. While a judge will encourage a child to foster a relationship with both parents, judges won't sanction or threaten a child for refusing visits with a parent.
If a judge decides that a child has the age, maturity, and discretion to express a custodial preference, the next question is how the child's opinion can be conveyed to the court. A judge can appoint a custody evaluator or a guardian ad litem (“GAL”) to interview the child and represent the child's wishes to the court. An important distinction is that a custody evaluator will provide the court with an opinion on custody, while a GAL is actually the child's voice in a court proceeding.
Alternatively or in addition to appointing a custody evaluator or GAL, a judge can speak privately with the child in the judge's chambers. Parents are not invited to attend in-chambers interviews, although the parents' attorneys and a court reporter will be present.
If a guardian ad litem has been appointed, the guardian must attend this interview. The privacy of this interview allows a child's wishes to be heard without putting pressure on a child to express those wishes in front of a parent. The court reporter's transcript of the private hearing may only be viewed by the parents if they appeal the judge's decision.
In most cases, a child won't testify at a court hearing unless there's an emergency. Oklahoma judges try to keep children out of their parent's custody battles. However, as discussed above, there are many ways for a judge to hear a child's preference without the child ever stepping foot in a courtroom.
If you find yourself in a situation where you and the other parent can't agree about who should have custody, you might want to contact a local Oklahoma family law attorney for advice. For more information on child custody in Oklahoma, see our article Child Custody and Visitation in Oklahoma.