Child Custody-Unwed Parents
Authored By: Legal Aid Services of Oklahoma, Inc.
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What are my rights and responsibilities as a parent?
Being a parent means having certain rights. These rights include the right to seek custody of the child, have visitation, be informed about the child's education and health, participate in decision-making about education and medical care, and be notified and heard before a court terminates any parental right. Being a parent also means having certain responsibilities to your child. These responsibilities include the education and necessary support of the child and exist whether or not the parents were ever married. A custody order can help define and enforce those rights and responsibilities. However, if you have a good relationship with the other parent and can work out a parenting plan on your own, it may be better to leave the court out of it. After all, it is the parents who often know what is best for their child. Some agencies work with unwed parents to help them create parenting plans for a minimal charge. In some cases, the service may even be free.
What happens if I do not have a custody order?
In Oklahoma, when there is no custody order from a court, the law is unclear. In most cases, if the father is unknown or if he denies that he is the father, then the mother is entitled to custody. However, if the father is noted on the birth certificate or sometimes even if he just acknowledges the child as his own, then BOTH parents are entitled to physical custody of the child(ren). That means that either parent can have the child living with them until a court order says otherwise. This is why it is not necessary to have a court order, if the parents can agree on a parenting plan. If the parents cannot agree, then either parent can ask the court for custody. This is a called a Petition for Custody. Anytime an individual "asks" the court to make an order, it is called a "Petition." In most cases, when the parents are unwed, the Petition for Custody is included in a Paternity case.Paternity means fatherhood and establishing paternity means legally recognizing who the child's father is.
How can I establish paternity?
How to prove paternity depends on your situation. If you are not on the birth certificate, the easiest way to prove paternity is to sign an "Affidavit Acknowledging Paternity." An Affidavit Acknowledging Paternity is a notarized written statement in which you state that you are the child's father. However, both you and the mother must agree that you are the father.If the mother does not believe that you are the father, you cannot use a paternity affidavit to establish paternity. Also, if you have any doubt that you are the father, you should not sign the affidavit. If you are on the child's birth certificate, chances are, you have already signed an "Affidavit Acknowledging Paternity." If you cannot get the mother to agree, your only other option is to file a "Petition for Paternity" in the court of the county where you live. The court can order DNA tests to prove paternity. Usually, the person seeking paternity has to pay for the tests, but if the mother denies that you are the father and the test proves that you are, the court can order the mother to pay you back. A mother can also petition the court for a paternity and custody order, if you deny paternity. You should be aware that if you are currently ordered to pay child support for the child, through DHS or otherwise, you have been established as the child's father and you do not need a paternity order. You may, however, still need a custody order, if you and the mother cannot agree on a parenting plan.
What types of custody are there?
First, it is important to know that when a court decides custody, it is deciding both physical custody and legal custody. Physical custody refers to where and with whom the child lives. Legal custody refers to a parent's right to make decisions about the child's education, medical care, religion, etc. In either case, the court can award either sole or joint custody. The different types of physical and legal custody are:
- Sole Legal Custody- only one parent has the right to make legal decisions for the child about education, health care, religion, etc;
- Joint Legal Custody- both parents have the right to make legal decisions for the child about education, health care, religion, etc;
- Sole Physical Custody- the child lives with one parent and the other has specific visitation rights; or
- Joint Physical Custody- the child resides with each parent for a substantial amount of time during the calendar year.
The court can also make a "Temporary custody" order. Temporary custody refers to a physical and legal custody agreement made by the parents or ordered by the court that is in place until a final order from the court is entered. It is important to know that the court's final order may not be the same as the temporary order.
How will the court decide who gets physical custody?
In Oklahoma, the court will decide what is in "the best interests of the physical, mental and moral welfare of the child." To do that, a court may consider factors such as:
- The wishes of each parent and sometimes the child (depending on the child's age);
- The relationship between the child and the parents;
- The relationship with grandparents, siblings and or other significant people in the child's life;
- The child's relationship to his or her school, religious institution and community;
- The mental and physical health of all parties;
- Any past, present or potential spousal or child abuse by either parent;
- The willingness of either parent to allow a relationship with the non-custodial parent;
- A parent's ability to provide for the material needs of the child;
- Whether there are siblings (courts tend to keep siblings together.); and,
- A parent's ability to spend time with the child.
Can my child choose whom to live with?
Yes, if the court decides that it is in his/her best interest to do so. The amount of weight the court gives the child's preference depends on the judge and the age of the child.
How can I change my Final Custody Order?
In order to change a Final Custody Order, you must file a "Motion to Modify Custody Order" in the same court that issued the order. This motion will ask the court to change the order and will state the reason why. In Oklahoma, there must be a "substantial change in circumstances that affect the best interests of the child" before the court will change a Final Custody Order. So, once again the court will look to the factors listed above to decide whether a change in custody would be in the child's best interests. The court will NOT change the order for minor changes in circumstances such as small changes in income-there must be significant changes that affect the child's life, such as an abusive situation or the custodial parent moving out of state, before the court will change an order. Once a Motion to Modify has been filed, the court will set a hearing date. At the hearing, the parent seeking the change will have to prove to the court that there is a substantial change in circumstances and that the custody change is best for the child. Since this can be a difficult process, one should probably seek the help of an attorney before filing a Motion to Modify Custody.
What happens if the noncustodial parent will not return my child(ren) after visitation?
If the non-custodial parent has not modified the final custody order and fails to return the child then he/she is violating the law. If you know where the children are, you should seek the assistance of a local law enforcement agency for help enforcing your custody order. You should keep a copy of your custody order in a safe place so that you can find it easily. The law enforcement officers may wish to view the order before assisting you. If you do not know where your children are, you should still contact the local law enforcement agency to file a report. In addition, you should seek the assistance of an attorney who may be able to provide you with other enforcement options.