You should know about the following important information if you’re engaged in a child custody action in Oklahoma.
- What are the Types of Child Custody in Oklahoma?
- Determining Child Custody in Oklahoma
- What is Oklahoma’s Best Interests of the Child Standard?
- What to Know About Parenting Plans
- How Do I Modify an Oklahoma Custody or Visitation Order?
- Oklahoma Child Custody FAQs
What are the Types of Child Custody in Oklahoma?
Oklahoma courts encourage divorcing parents to participate in all the rights and responsibilities of parenting their children.
Parental rights include:
- The right to physical custody with parenting time
- Legal custody with the ability to make decisions about the child’s upbringing
- The right to pass property to the child through inheritance or gifts
- The right to inherit from the child in the event of the child’s death.
- The right to have accurate, updated information about the child’s education and health.
Parental responsibilities include:
- Financially supporting the child until they reach the age of majority (18 years old)
- Meeting the child’s physical and emotional needs
- Protecting the child from abuse
A court decides on physical and legal custody. Most Oklahoma custody orders combine the terms into one term, simply referring to “custody.”
Physical custody is where and with whom the child lives most of the time. This parent is known as the custodial parent. In most cases, the other parent has visitation rights and is known as the non-custodial parent.
Legal custody refers to a parent’s right to decide about the child’s education, medical care, religion, and other significant parts of a child’s life.
The court can award sole or joint custody for both types of custody.
Sole Legal Custody is awarded when only one parent has the right to make legal decisions for the child about education, health care, religion, etc. Joint Legal Custody gives both parents have the right to make legal decisions for the child about education, health care, religion, etc.;
Sole Physical Custody means the child lives with one parent, and the other has specific visitation rights. Joint Physical Custody means the child resides with each parent for a substantial amount of time during the calendar year.
Because a divorce can take a long time to work through, Oklahoma courts can also create 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. Temporary orders end when a divorce is finalized. The same agreement may remain in place, but this is not always the case.
Split custody is an arrangement where each parent is awarded custody of one or more of the couple’s children. For example, one parent might have custody of twin girls while the other has custody of the couple’s son. Both parents live with some of their children and are entitled to regular visits with the children they don’t live with.
Birdnesting custody is rare but provides additional stability for children. Under a bird’s nest custody arrangement, children will live at the family home full-time, and the parents will take turns moving in and out.
Read More: How to File for Divorce in Oklahoma
Determining Child Custody in Oklahoma
To get a custody order from an Oklahoma court, either parent can ask for custody. You will need to file a Petition for Custody. Courts do not give any preference to custody matters based on gender.
A court must determine if it has jurisdiction to decide custody of children. If a child has not lived in Oklahoma for six months with a parent or somebody taking care of them in Oklahoma, a court in Oklahoma may decide that another state has jurisdiction instead. If a child does not live in Oklahoma or has come to Oklahoma within the last six months, it’s often best to consult with a family law attorney for all related custody issues.
When jurisdiction is established, Oklahoma courts determine custody based on “the best interests of the physical, mental, and moral welfare of the child.” Judges may consider factors such as:
- The wishes of each parent
- The wishes of the child if they are old enough and mature enough to provide input
- The quality of the relationship between the child and the parents
- Relationships with grandparents, siblings, and or other significant people in the child’s life
- The child’s relationship to their school, religious institution, and community
- The mental and physical health of all parties
- Past, present or possible future spousal or child abuse by either parent
- Past or present 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 most actively involved in the day-to-day lives of the children, including doctor’s appointments, school activities, extracurricular functions and other related things
- 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. ( i.e., does a parent smoke, especially if the child has asthma or allergies)
- 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 and provide a stable home environment
- Whether there are siblings or half-siblings with established close relationships (courts tend to keep siblings together.)
- A parent’s ability to spend time with the child
What if I do not have a custody order?
Suppose there is no custody order from a court. In that case, both parents are equally entitled to physical custody of any children born during the marriage or born to the parents before marriage. A father must agree he is the parent by public acknowledgment, which may include signing a birth certificate or DNA testing.
What are the guidelines regarding a child’s custody wishes?
The court will take that preference under advisement when a child expresses a custody preference, but the child’s best interests will control the outcome.
Oklahoma child custody laws add additional weight to the wishes of children 12 or older. Generally, 12 years old is considered an age when a child can express an intelligent, well-reasoned preference.
What are the laws that prohibit a parent from receiving custody?
Under Oklahoma law, a court may not award custody of a child to any person convicted of:
- Sexual abuse or sexual exploitation of a child
- Child endangerment, if the offense involved sexual abuse of a child
- Forcible sodomy of a child
- Child stealing, if the offense involved sexual abuse or sexual exploitation
- Procuring minors for participation in child pornography
- Consent to the participation of minors in child pornography
- Facilitating, encouraging, offering, or soliciting sexual conduct with a minor by use of technology
- Distributing child pornography
- Possession, purchase, or procurement of child pornography
- Aggravated possession of child pornography
- Procuring a child under 18 years of age for prostitution
- Inducing, keeping, detaining or restraining a child under 18 years of age for prostitution;
- First-degree rape
- Lewd or indecent proposals or acts to a child under 16 years of age
- Solicitation of minors in any crime provided in subsection B of Section 1021 of Title 21 of the Oklahoma Statutes.
Are there rules impacting custody and parental drug use?
A court may order drug testing for one or both parents and consider a parent’s drug use when determining child custody.
After medical marijuana was legalized in Oklahoma, the state legislature passed a law stating that a court may not deny a medical marijuana license holder custody or parenting time with a child “unless the person’s behavior creates an unreasonable danger to the safety of the minor.”
What if supervised visitation is ordered?
Supervised visitation may be ordered where a parent poses potential harm or cannot properly care for the child. It occurs when a third party must supervise the non-custodial parent’s visitation and can be a relative, friend, or possibly assigned by the courts.
What is Oklahoma’s Best Interests of the Child Standard?
Although several factors determine a child’s physical and legal custody, the overriding concern is that any decision is made in the child’s best interests. All other considerations are based on this primary premise.
What to Know About Parenting Plans
Parents or the court must specifically detail the rules and responsibilities of each parent as it relates to the child in a custody situation. To ensure no misunderstandings, a parenting plan must be developed addressing several details. The more thorough the plan, the less likely it is that there will be disagreements in the future.
Parents can create their own agreement or use a mediator or family law attorney to assist them, but a court will still need to review and approve it, making it a legal court document.
Parenting plans should contain the following:
- Physical custody, including the number of overnight visits for each parent.
- Legal custody, including which parent is responsible for specific decisions regarding the child.
- Holiday schedules and school break schedules
- Vacation and travel approval and advance notifications
- How will a child communicate with both parents
- Communication between the parents, including a preferred method such as calls, emails, or texts
- Contact with other family members and friends
- How are various expenses handled such as tuition, medical costs, school activities, hobbies, and recreational activities?
- Child support payment amounts and recourse if a parent falls behind.
- Exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Access to records and information
- Children’s use of technology and online activities
- Handling special needs for the children as they arise
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines (extreme haircuts, make-up, etc.)
- Drinking or drug use in the presence of the children
How Do I Modify an Oklahoma Custody or Visitation Order?
To change an Oklahoma custody order, you must file a “Motion to Modify Custody Order.” This is almost always done in the same court and in the same case that issued the order.
This motion asks the court to change the order and should state why the change is appropriate. As with original orders, the change must still be in the child’s best interests.
There must be a “permanent, material and substantial change in circumstances that affect the best interests of the child” before the court will change an order. Circumstances may include an abusive situation or the custodial parent moving out of state before the court will change an order. After finding this change exists, the court will look to the factors listed above to decide whether a change in custody would be in the child’s best interests.
In some cases, if a child is old enough and mature, the child’s desire to change custody can be all that is needed.
After 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.
The standard for changing a custody order is different for sole custody than for joint custody. For the court to change a sole custody order, the petitioning parent must show that there has been a change in circumstances that is 1) substantial – major or significant, 2) permanent – not temporary, and 3) material – related to the child’s custody.
To change a joint custody order, the petitioning parent must show that the parents cannot agree on the child’s best interests or cooperate as specified in the joint custody order, so sole custody would better meet the child’s best interests.
Read More: How to Prepare for a Divorce Hearing
Oklahoma Child Custody FAQs
Can a court award custody to nonparents?
A court must give parents preference in awarding custody. A judge may award custody to a non-parent if both parents are “affirmatively unfit.” “Affirmatively unfit” means that there is something about the parents that makes them unable to raise a child, such as criminal activity or ongoing substance abuse. The same best interests of the child standard apply in cases like these.
Do I have to attend a parenting class as part of the custody process?
Yes. Oklahoma law and local court rules require parents involved in a custody proceeding to attend a parenting education seminar. You may be a good parent, but when parents separate, it can drastically change their parenting relationship, and this class works to minimize the effect of those changes on the children.
What happens if the other parent will not return our children after visitation?
When a parent fails to return a child as laid out in a parenting plan, that parent is violating the custody order and can be punished with a charge of contempt of court when there is no good reason for not returning 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. Keep a copy of your custody order in a safe place so that you can find it easily because peace officers may want to see the order before assisting you. In some jurisdictions, police and sheriff’s departments refuse to get involved unless they are specifically ordered to pick up the child by a judge.
What are the rules regarding relocation with a child?
When one parent plans to relocate with the child and is moving more than 75 miles away, they must notify the other parent in writing at least 60 days before the proposed move or within 10 days of learning of the move.
The notice should include when the move will happen, reasons for the move, and a proposed schedule for sharing time with the children afterward. If the other parent disagrees with the move, they can file an opposition to the custodial parent’s relocation, and a judge will hold a hearing to rule on the matter.
Can a parent deny visitation if the other parent is not paying child support or alimony as required?
No, a parent can’t withhold visitation based on the other parent’s failure to pay support.
If the court finds that the non-custodial parent’s visitation rights have been unreasonably denied or otherwise interfered with by the custodial parent, the court may order make-up visits, posting of a bond which will be forfeited if visitation does not occur, attorneys fees and costs, or another appropriate remedy.