Child Custody--married, divorcing parents
Authored By: Legal Aid Services of Oklahoma, Inc.
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What happens if I do not have a custody order?
In Oklahoma, if there is no custody order from a court, BOTH parents are equally entitled to physical custody of any children born during the marriage or born to the parents before a marriage and there is agreement that the husband is the father - usually by putting his name on the birth certificate. That means that either parent can have the child living with him/her until a court order says otherwise. To get a custody order from the court, 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." Most often, a Petition for Custody is included in a divorce case; but, parents who are seeking a legal separation or parents who are unwed may also ask the court for a custody order.
First, a court must determine if it has the power, or "jurisdiction," to decide custody of children. If a child has not lived in Oklahoma for 6 months with a parent or somebody taking care of them in Oklahoma, a court in Oklahoma may decide that another state has the power or "jurisdiction" to decide jurisdiction. If your child does not live in Oklahoma or has come to Oklahoma within the last 6 months, because this is a complicated problem, you should consult with an attorney to help determine which state should decide which parent should have custody.
What types of custody are there?
It is important to know that when a court decides custody, it is deciding both physical custody and legal custody. Most Oklahoma custody orders combine the terms into one term, simply referring to "custody" and unless set out separately "legal custody" and "physical custody" are included in the one term, "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, to determine custody between parents of a child, 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 quality of 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 possible future spousal or child abuse by either parent;
• Any past or present drug or substance abuse by either parent;
• Any past or present criminal actions by either parent other than minor infractions or less serious crimes that were committed a long time ago with no recent criminal actions;
• Which parent has been involved in the past in getting the child to doctor and dentist appointments;
• Which parent has been involved in the child's schooling, attending parent teacher conferences and going to school functions;
• Which parent is most likely to provide a safe home environment for the child and not engage in activities in the home that can cause health problems for the child. Some judges like to find out who smokes in the home - especially if the child has asthma or allergies. Another safety issue is using a car seat for younger children;
• The willingness of a potential custodial parent to foster a relationship and visitation with the other parent;
• The stability in the child's home life that a parent is able to provide for the child;
• A parent's ability to provide for the material needs of the child;
• The demonstrated ability of each parent to make good decisions regarding the child's welfare. Whether there are siblings or half-siblings with established close relationships (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.
What kind of visitation does a court order?
Unless there is a concern about the safety of a child being with a parent, usually because there are problems about child abuse, drug use, heavy alcohol use, or other similar reason, a Court will order visitation by the parent not receiving physical or sole custody. There are several kinds of visitation:
• Weekend visitation: This will involve visitation over a weekend from a set time usually on Friday until a set time on either Sunday evening or Monday morning. Holiday and summer visitation will overrule weekend visitation. In many visitation orders this visitation will stop in June, July and part of August because of summer visitation.
• Holiday visitation: This kind of visitation usually involves a schedule to alternate certain holidays such as Christmas, Thanksgiving, Spring break. Other holidays can be included in the order. This visitation will take place if there is a conflict with the scheduled weekend visitation.
• Summer visitation: This visitation will provide one or more extended periods of visitation during June, July and August. Weekend visitation does not interrupt a summer visitation.
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." This is almost always done in the same court and in same case that issued the order. This motion asks the court to change the order and should state the reason why the change should happen. In Oklahoma, if the custody order is a "Sole Custody Order" as described above, there must be a "permanent, material and substantial change in circumstances that affect the best interests of the child" before the court will change a Final Custody Order. After finding this change 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 due to 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. There is some case law that indicates that if a child is old enough, (usually in the teens) and mature enough, the child's desire to change custody can be all that is needed to change custody. 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 permanent, material substantial change in circumstances and that the change of custody 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.
The standard to change custody orders is different if the custody order is a "Joint Custody Order." Then, the court must be shown that the parties are not able to cooperate and agree on the best interests of the child. If that happens, either or both parties can go back to court to ask the court to terminate the joint custody and then award sole custody. The Court will look to the same factors mentioned in the first custody decision.
What happens if my ex-spouse will not return my child(ren) after visitation?
If you have sole custody or it is your turn to have possession of the children under a joint custody order and the other parent has not modified the Final Custody Order or obtained a Temporary Order modifying the final custody order, and fails to return the child, then he/she is violating the Custody Order and this can be punishable by a charge of contempt of court if the parent not returning the child does not have a good reason for not returning the child. A good reason would be that they were prevented by weather from traveling or if something is happening in your home or while the child is in your care that may harm the child.
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. However, many police and sheriff's departments refuse to get involved unless they are specifically ordered to pick up the child by a judge.
If you do not know where your children are, you should still contact the local law enforcement agency to file a report. This will help you prove the case to the court. In addition, you should seek the assistance of an attorney who may be able to provide you with other enforcement options.