Child custody is an emotional topic for all parents, and legal/court proceedings are notorious for bringing out the worst in people. For these reasons, custody disputes are often quite contentious and ugly and considering what's at stake in the outcome, it is usually best to hire an attorney to work on your behalf or, at a minimum, review any agreement reached between you and the other parent.
Legal custody refers to the right to make child-rearing decisions for a child (educational, disciplinary, medical, etc.). The court may grant parents joint legal custody or grant sole legal custody to one parent.
Physical custody refers to the right to choose where the child resides at all times. With that right comes the responsibility for the physical care and supervision of the child. The court may grant sole physical custody to one parent or joint physical custody to both parents.
The court awards one parent exclusive legal and physical custody of the child.
Both parents have equal rights to make decisions regarding the child's upbringing and share in the physical custody of the child.
Know How Custody and Custody Type is Determined
When determining custody type, Oklahoma courts consider what is in the best interest of the child.
When the parents are in agreement about child custody, they can submit a proposed joint custody arrangement to the court. The court will likely grant it, but the judge may suggest modifications, which will be added as amendments if both parents agree.
If the parents cannot reach a mutually agreeable custody arrangement, the court considers the following:
- The wishes of each parent.
- The wishes of the child (always if the child is over age 12; sometimes if under 12).
- Each parent's ability to spend time with the child.
- Each parent's ability to meet the child's material needs.
- The stability of the home each parent can provide for the child.
- The mental and physical health of each parent.
- Past or present drug or substance abuse by either parent.
- Recent past or present criminal actions by either parent, excluding minor infractions.
- The willingness of each parent to encourage the child to build a relationship with the other parent.
If the court awards joint custody, parenting time may not be split 50/50 between the two parents. Dividing parenting time 60/40 or 70/30 is more common, based on each parent's work schedule.
How and When a Custody Order Can Be Modified
To modify an existing custody order, you must file a Motion to Modify Custody, usually in the same court that granted your original custody order. The court will then set a hearing where both parties can argue their case to change the custody order or to leave it the same.
The standard for changing a custody order is different for sole custody than it is 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 - actually related to the child's custody. In some cases, if the child is over the age of 12, the judge will consider the child's desire to change the custody order as sufficient to grant the modifications. The change in circumstances must have arisen since the initial order; evidence of parental unfitness prior to the original order, for example, will be excluded.
By contrast, for the court to change a joint custody order, the petitioning parent must show that the parents cannot agree on the best interests of the child or cooperate as specified in the joint custody order, so sole custody would better meet the best interests of the child. In this case, the court will hear all evidence of parental fitness in making the determination of sole custody (because such a determination was never made in the original joint custody order).
The Difference Between Custody and Visitation
Custody is the legal right to make decisions about the child's upbringing, such as schooling, medical care, and religious affiliation.
When one parent has sole custody, the time the non-custodial parent spends with the child is called visitation. The final custody order will specify the amount of time the child will spend with the non-custodial parent. Oklahoma courts encourage ongoing, frequent contact between the child and the non-custodial parent. If safety issues exist, visitation may be supervised, but the non-custodial parent may have contact with the child by phone, email, or video chat.
The custodial parent cannot deny the child's visitation with the non-custodial parent without sufficient cause. If visitation is denied, the non-custodial parent can file a Motion to Enforce Visitation. The Court schedules a hearing on the matter, and if the judge finds that visitation was unreasonably denied, they may order makeup visits for the non-custodial parent and attorney's fees.
The non-custodial parent's failure to pay child support is not a valid reason for the custodial parent to withhold visitation. The custodial parent can withhold visitation if he or she reasonably believes that the child is in danger at the non-custodial parent's home. If the child is in enough danger to withhold visitation, a person must file for emergency custody with the court. If you believe your child is in danger and you leave your child with the non-custodial parent, you could be criminally charged or your child could be placed in state custody.
The Rights and Responsibilities of Divorced Parents in Custody Matters
Oklahoma courts encourage divorcing parents to participate in all the rights and responsibilities of parenting their children. The court decides custody matters as part of the divorce.
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; and
- the right to inherit from the child in the event of the child's death.
Parents also have the right to have accurate, updated information about the child's education and health. The judge may alter any of these rights in the final custody order. If the court is considering terminating one or more of the parents' rights, the parents will have the right to argue their respective cases before the judge terminates their rights.
Parental responsibilities include:
- financially supporting the child until the child reaches the age of majority;
- meeting the child's physical and emotional needs; and
- protecting the child from abuse.
The Rights and Responsibilities of Unwed Parents in Custody Matters
In Oklahoma, when a child is born out of wedlock, legally, the biological father is not presumed to be the child's legal father until he establishes paternity.
Once paternity is established, the Court can grant a custody order establishing visitation and financial support if the parents do not live together.
Once paternity is established, both parents can share in the rights and responsibilities of parenthood just as divorced parents do.
Hire an Experienced Oklahoma Custody Attorney
Custody is a complicated, emotional legal process. Your case is unique and may require the court to find a one-of-a-kind solution to protect the best interests of your child. Our team of experienced family law attorneys is here to help. Contact Worden & Carbitcher today to schedule a consultation.