Know the Laws: Oklahoma
UPDATED October 19, 2016
WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action. To find an organization near you, please go to the OK Where to Find Help page.
When you file a motion for an emergency custody hearing in Oklahoma, the motion (legal papers) must include either:
The judge is supposed to hold a hearing within 72 hours. If the judge fails to conduct a hearing within such time, you can bring the motion to the presiding judge of the judicial district, who is supposed to conduct an emergency custody hearing within 24 hours.*
Depending on the specifics of your case, an emergency order can grant you custody, change your custody order, or terminate the other parent's visitation.
If you also file a request for a more permanent custody order before the hearing date, the court will generally have the power to keep a temporary custody order in place until a final hearing.
You may want to consult a lawyer before filing for emergency custody. To find one in your area, go to the OK Where to Find Help page.
* 43 O.S. § 107.4(A)
A judge will make a decision about custody based on what s/he thinks is in your child's best interest. The judge will look at any factor that s/he thinks is important to make this decision. Some factors a judge may consider are:
This list was taken from the LawHelp.org website.
Note: If your case is going to trial, you can ask the judge to make specific “findings of fact” regarding the reasons for the custody decision. In other words, the judge will spell out the reasons why s/he decided the way s/he did. You must request this of the judge, though, before the trial begins.
In any case regarding custody or visitation, the child can express his/her preference as to which of his/her parents the child wishes to have custody or regarding limits of periods of visitation if the judge believes that it is in the best interest of the child to do so. The judge might also allow the child to testify in court about other matters.* The child's testimony and preference can be given in private to the judge, without the parents or attorneys present.*1 However, if the court has appointed a guardian ad litem for the child, the guardian ad litem will be present with the child while being interviewed by the judge. The parents, attorneys or other parties can suggest questions or topics that they want to judge to consider in the interview of the child but the judge does not have to use those.*2 At the request of either party, the judge will record the child's interview but the parties are only entitled to get the transcript of it if a parent appeals the custody or visitation determination.*3
Generally, if the judge thinks that the child is old enough and mature enough to make a good decision about which parent is best for custody, the judge will then take this into consideration (along with many other factors). The judge is not bound by the child's choice. In Oklahoma, the courts assume that children 12 years or older are old enough to tell the judge his/her preference (but a parent can try to prevent this by showing evidence that the child is not mature enough).*4
* 43 O.S § 113(A),(B)
*1 43 O.S § 113(D)
*2 43 O.S § 113(E)
*3 43 O.S § 113(F)
*4 43 O.S § 113(C)
Maybe. A judge will probably consider which parent has been taking care of the children since you moved out as an important factor when making a custody decision. Leaving the house where the children and the other parent currently live may cause the judge to favor leaving your children with the other parent.
However, a judge may also consider the reason why you left. For example, if you left to be safe from harm and felt that you couldn’t safely take the children, being able to prove the abuse may become critical to getting custody. Other reasons may not be received as well by the courts. A court may also view leaving as evidence that you are putting other priorities before your children. It is hard to predict how a judge will view this situation in a particular case -- these are just some possible ways it may be interpreted. If this is your situation, we recommend getting advice and representation from an attorney. Go to our OK Finding a Lawyer page for legal referrals.
This amount that a custody case could actually cost varies from case to case. If you are paying a lawyer, your legal fees could depend on things like the amount of conflict between the parties and how much your attorney charges. Also, there are court costs such as filing fees and possibly for serving the papers on the other parent. If you cannot afford to pay the costs, you can ask to file an affidavit (known as an affidavit in forma pauperis or a pauper’s affidavit) in which you inform the judge that you are a low-income person and ask the judge not to make you pay the court costs.* It will be up to the judge to decide whether to waive the court costs or not.
It is generally best that you try to get an attorney to represent you. Getting an experienced attorney who is familiar with custody laws and domestic violence can help present your case to the judge. If you have to hire an attorney, often the attorney will ask for what is called a retainer. A retainer is a lot like a down-payment or a deposit. It is money you pay your attorney up front to secure his or her services and it usually covers a certain amount of hours of the attorney’s time. Then, once the attorney uses up the retainer, you may have to pay your attorney an hourly rate for his/her future services.
If you cannot afford an attorney, you may be able to get free legal services -- you can find organizations near you on our OK Finding a Lawyer page. However, these organizations do not have enough attorneys and resources to accept every case. Even if you meet the financial requirements of that organization, it does not mean that they will definitely handle your case.
Note: If you have been the victim of domestic abuse or stalking and are seeking custody of your child, the court can order the abuser to pay for your attorney’s fees and costs of the custody proceedings if you request this. You would first have to prove to the judge you are currently being stalked or have been stalked or that you are the victim of domestic abuse by the other parent in order for the judge to grant your request.**
* 12 O.S. § 922
** 43 O.S. § 112.6
While you do not need a lawyer, it is highly recommended that you get a lawyer if you can, especially if the other parent has one. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our OK Finding a Lawyer page.
Under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can only file for custody in the "home state" of the child unless you meet one of the exceptions, explained here: Are there any exceptions to the home state rule? The child's "home state" is the state where your child has lived with a parent or a person acting as a parent for the past six consecutive months. If your child is less than 6 months old, then your child's home state is the state where s/he has lived since birth. (Leaving the state for a short period of time does not change your child's home state.)
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least 6 months. (There are some exceptions explained in the next question.)
Here are some examples:
My children lived in Texas their whole lives. We just moved to Oklahoma a few weeks ago (less than six months ago). In my case, Texas is my children's "home state." If I want to file for custody right now, I will probably need to file in Texas.
My children lived in Texas until we moved to Oklahoma 6 months ago. Because the children have lived in Oklahoma for 6 months, Oklahoma is their "home state." I will likely need to file for custody in Oklahoma (assuming there was no prior case in TX). However the other parent can ask Oklahoma to defer to Texas because Texas has more information about my children's lives that does Oklahoma. It would be up to the judge in Oklahoma.
My children lived in Oklahoma until they left to live with their father in Texas 2 months ago. Because they haven't lived in Texas for 6 months yet, their home state is still Oklahoma. If I want to file for custody, I can file in Oklahoma providing I haven't moved out of Oklahoma.
Yes, there are exceptions to the home state rule.
In some cases, you can file for custody in a state where the children and at least one parent have "significant connections" if there is a lot of evidence available in that state concerning the child’s care, personal relationships, etc. You can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction.* This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. For a list of legal resources, please see our OK Finding a Lawyer page.
You can also file for temporary emergency jurisdiction in a state other than the home state if the child is present in the state and:
* 43 O.S. § 551-201(A)(2)
** 43 O.S. § 551-204(A)
The steps for filing for custody depend on the marital status of the parents.If you are married and seeking a divorce, the custody issues will be settled in your divorce decree (judgment).
If you are involved in a divorce or custody case that involves a minor child (under the age of 18), the judge may (but doesn’t have to) appoint a parenting coordinator to help figure out the family issues and have both sides come to an agreement.* The parenting coordinator will suggest to the judge what s/he thinks is best for the child and the terms you were all able to come to an agreement about. If you object to the parenting coordinator’s report/suggestions, you can file an objection within 10 days of receiving this report, which will be reviewed by the judge.*1 Even if the judge appoints a coordinator, the judge has the final say on things like custody, visitation and child support.*2
The judge may appoint a coordinator on his/her own or you or the other parent may file a motion to have a parenting coordinator appointed to your case. However, if you or the other parent objects to having a parenting coordinator appointed, the court will not appoint one unless:
Parenting coordinators are paid for by the parents. The court may decide that the parents pay based on their income or the judge can order a different amount per parent if the judge believes there is “good cause” to do so. The state will not pay for a parenting coordinator. The judge may appoint a coordinator to serve on a volunteer basis in cases where the judge feels that a coordinator is necessary and the parties cannot afford one.*4
* 43 O.S. § 120.3(A)
*1 43 O.S. § 120.4(A),(C),(D)
*2 43 O.S. § 120.3(C)(2)
*3 43 O.S. § 120.3(A),(B)(1)&(2)
*4 43 O.S. § 120.5
Mediation is when a neutral third party sits down with the parents in a custody or visitation case and tries to help them come to an agreement without going through extensive court hearings. The parents are responsible for paying for mediation. If you cannot afford the fees, there are some lower-cost or sliding-scale services available.In a divorce or child custody proceeding, an Oklahoma judge may require the parties to go to mediation.
Possibly. As long as paternity is established, and the child is living with you, you are entitled to receive support for your child if you apply for it. If you are married, you may be able to get spousal support (alimony). However, the court makes separate decisions when awarding support for you and your children, so it is possible that you may only be able to get support for your children, and not for yourself. It is also possible that you can get both.
Support for your child. Child support is usually addressed in the custody agreement. However, if your custody agreement does not order the noncustodial parent to pay child support and you do not have any other child support order, the noncustodial parent does not have a legal obligation to pay child support. In order to make the noncustodial parent pay, you must get an order awarding you child support. When deciding how much child support to award, the court generally considers the following factors for both parents:
Things that are NOT considered when deciding how much the child support payments:
There are other sources of income not mentioned in the list above that can be considered – if you or your child receives a different type of income than listed above, you may want to consult with an attorney to see how that income will be calculated. You can find legal referrals on our OK Finding a Lawyer page. To get a rough idea of how much child support you may receive, go to AllLaw.com's Oklahoma child support calculator.
If you are applying for Temporary Assistance for Needy Families (TANF), the Child Support Enforcement Department (CSED) of the Department of Human Services will automatically seek child support from the non-custodial parent. See their TANF and CSED websites for more details.
For information on enforcing a child support order, go to our Child support section.
Support for yourself. Alimony (also called spousal support) is something that you can ask for as a part of your divorce*** or by filing a petition in the district court before getting a divorce. You can get alimony without divorce in the district court for the same reasons (grounds) that a person could use to get divorced.**** Some of the most common grounds for divorce or alimony without divorce are extreme cruelty (abuse), habitual drunkenness, adultery, and incompatibility.
* 43 O.S. § 118B(A)
** 43 O.S. § 118B(B)
*** 43 O.S. § 121(B)
**** 43 O.S. § 129
WomensLaw.org would like to thank Legal Aid Services of Oklahoma, Inc. for helping us with this page.