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Who Gets the Kids While Divorce is Pending?

Posted by Wyatt Worden | Jan 17, 2020 | 0 Comments

After a divorce petition is filed, one of the first points of contention is custody/visitation of the children, and understandably so. While each case is unique and many exceptions apply, here is an overview of the general rules.

The court won't make a decision on custody and visitation until 1) the temporary orders hearing, and 2) the final decree. So what happens before then?If the kids are living with one parent, how much time does the other parent get to see their kids? 

In the absence of a temporary order or final divorce decree, there is an Oklahoma law (42 OK Stat §110.1) governing shared parenting during divorce proceedings; unfortunately, the law is ambiguous and difficult to interpret. See for yourself -- 43 OK Stat §110.1 states:

“It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage, provided that the parents agree to cooperate and that domestic violence, stalking, or harassing behaviors as defined in Section 109 of this title are not present in the parental relationship. To effectuate this policy, if requested by a parent, the court may provide substantially equal access to the minor children to both parents at a temporary order hearing, unless the court finds that shared parenting would be detrimental to the child” (emphasis added).

In non-lawyer language, this law means that before the divorce is finalized, where custody/visitation of minor child is uncontested, the still-married parents will have substantially equal access to their children unless a temporary order specifies otherwise.

Okay...but what does “substantially equal access” mean? Good question. Technically, there is not an exact answer. Because the phrase “substantially equal access” gives no concrete guidance, its interpretation differs from judge to judge, and Oklahoma county to Oklahoma county. For example, in Tulsa County, judges generally interpret “substantially equal access” as granting the non-primary parent, at a minimum, four days of visitation every fourteen days. Because this statute is vague and inconsistently interpreted, a non-primary divorcing parent should consult a local lawyer about the their particular judge and county.

Contesting “Equal Access”

If a parent wishes to contest their ex-partner's access to their kids, they can. But the contesting parent must: (1) be the parent requesting sole custody; (2) provide proof that shared parenting would be detrimental to their child. The judge will consider the best interests of the child, which include the physical, mental, and moral welfare of the child, and either issue a temporary order granting you sole custody or keep the default custody arrangement in place.

About the Author

Wyatt Worden

Wyatt has always held himself to a high standard of excellence, which carried over into law school where he graduated #1 in his class and earned 12 CALI Awards, an award given to the top scorer in each class. He now brings that standard of excellence to our firm and to our clients. Wyatt joined ...

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