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Child Custody-Unwed Parents

Authored By: Legal Aid Services of Oklahoma, Inc. LSC Funded
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FAQ

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, many parents choose not to involve the courts. 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.  For information in the Tulsa area, contact Family and Children Services’ Parent Connections Division at 918-587-9471 or call 2-1-1 to find a service in your area.

What happens if I do not have a custody order?

When parents are married custody is decided as part of the Divorce. When parents are unwed, the Petition for Custody is usually included in a Paternity case. Paternity means fatherhood and establishing paternity means legally recognizing who the child’s father is. Even if the father is already legally recognized as the father, an unwed father can use a Paternity case to establish custody. A Paternity case that includes a custody order will often include a child support order too.

In Oklahoma, the mother of a child born out of wedlock has custody of the child unless there is a court order that says otherwise or some other law applies to their situation. If the father wishes to establish custody he can file a case in court to ask the court for custody rights. This is a called a Petition for Custody.

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 parents 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.”

An Affidavit Acknowledging Paternity recognizes the father as a legal parent, however it does not grant custody rights to an unwed father. Therefore, if the father and mother cannot agree on custody, the father would still need to file a Paternity case in order to obtain a court order of custody.

What are the different types of custody?

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, and other parenting decisions;

Joint Legal Custody – both parents have the right to make legal decisions for the child about education, health care, religion and other parenting decisions;

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 the child’s 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. 

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 non-custodial 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 they are 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.

Still have a question?

Legal Aid helps people who are low-income with civil legal problems.
To apply for help from Legal Aid, visit our website at www.legalaidok.org or call toll free (888) 534-5243.  

Last Review and Update: Apr 28, 2017
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