Know the Laws: Oklahoma
UPDATED October 15, 2012
WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action. To find an agency, please go to the OK Where to Find Help page.
There are two types of custody in Oklahoma: legal and physical custody.
Legal custody is the right to make major decisions about your child (under 18 years old). Some types of decisions included in the right of legal custody are:
Physical custody is the actual physical possession and control of a child. In other words, it covers who the child lives with on a day-to-day basis. Some types of responsibilities with physical custody include:
There are many reasons some people choose not to get a custody order from a court. Some people decide not to get a custody order because they don't want to get the courts involved. They may have an informal agreement that works well for them or they may think going to court will provoke the other parent into seeking custody or visitation that they do not already have.
Getting a custody order can give you:
One of the benefits to a custody order is that there will be a specific schedule as to who has the child at what times. However, it might give the other parent more visitation or custody rights than s/he is using now. Without a custody order, both parents (assuming paternity is established) likely have equal rights to the child. Therefore, it could be possible for the other parent to pick your child up and keep custody from you until there is a custody order that says otherwise. If you fear that the other parent would do something like this, you may decide to file for custody to try to prevent a situation like this. We strongly suggest talking to a lawyer about what is best in your situation. See OK Finding a Lawyer for free and paid legal referrals.
It is important to note that you do not need a custody order to file for child support. If you need child support, the Department of Human Services, Child Support Enforcement Division (CSED) can help obtain a child support order. If necessary, the CSED could have an administrative hearing and determine paternity by order genetic testing of the mother, child and possible father. They will order that child support be paid to the parent that has present physical possession of the child even without a custody order. See the OK Department of Human Services website for more information.
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to OK Finding a Lawyer to seek out legal advice.
There are 2 options for legal custody: sole legal custody or joint legal custody.
A judge may give you or the other parent sole legal custody. A parent with sole legal custody has the right to make major decisions about the child, while the other parent does not have that right. If you have sole legal custody, you get to make decisions about things like the child’s education, healthcare and religion.
A judge may also give you joint legal custody with the other parent. In this case, both you and the other parent would share the same rights and responsibilities to make the major decisions affecting your child's life. This means that both parents get to decide things like where your child goes to school, what kind of religious training your child receives, and whether your child needs surgery. Often times in domestic violence situations, this is not a good option because it requires you and the abuser to talk, negotiate, and agree on decisions.
It is possible that both parents can have joint legal custody while only one parent has physical custody. This means that the child lives with one parent, but both parents make the major decisions about the child's welfare.
In Oklahoma, if the court order does not specifically say legal or physical custody, it means both.*
* See OK Law website
There are 2 options for physical custody: sole physical custody or joint physical custody.
In Oklahoma, if you have sole physical custody of your child, then your child lives with you and not with the other parent (but may visit the other parent on weekends or for other time periods). A parent with primary physical custody is sometimes called a child's "primary caretaker," or "custodial parent." Generally, the custodial parent is the person who has responsibility for the everyday care of your child and the everyday decisions that affect that care.
You can have sole physical custody of your child and share legal custody with the other parent. This means that while your child lives with you and not with the other parent, but the other parent still has the right to help make major decisions regarding the child. Sometimes, a judge will call this type of arrangement "joint custody" with the mother (or father) as the "primary custodian." This means that the parents have joint legal custody, but the child mostly lives with one parent.
If a judge orders joint physical custody, your child will live part-time with you part-time with the other parent. The child may or may not spend equal amounts of time with each parent but both of you will have frequent contact with the child. For example, your child may spend weekdays with you, and weekends (or alternating weekends) with the other parent.
When there is joint physical custody, both parents share the rights of making day-to-day decisions about your child and the responsibilities of caring for your child while the child is with you. Some things that parents with joint physical custody will both be responsible for include:
When a court orders joint physical custody, the court is required to enter a "joint custody plan" that spells out in detail the rights and responsibilities of each parent. The plan should also address what should be done if the parents disagree on a major decision – for example, sometimes the court designates one parent as the “tie-breaker” or sometimes the court requires mediation. The judge can also order that the parents go to arbitration to resolve disagreements over the interpretation of language in the order. If the parents refuse arbitration, the judge can deny joint custody.*
* 43 Okla. St. § 109(H)
Most commonly, custody will be given to one parent (sole custody) or both parents (joint custody). However, it is possible for a non-parent to appear before the court to try and prove that both parents are unfit in order for the non-parent to get custody of a child. Grandparents, adult relatives, and any person a child has been living with in a caring and wholesome environment are among the people who can ask that parents be declared unfit so that custody could be granted to the non-parent petitioner. However, this does not mean that a non-parent can get custody just by coming to court and saying, "We can take better care of the child than either parent." A parent must be declared “unfit.”*We recommend that you talk to an attorney when you are involved in a divorce or any custody dispute, especially if anyone (a parent or non-parent) is trying to get custody. Go to our OK Finding a Lawyer page for legal referrals.
Possibly, yes. However, if the judge believes that there has been domestic violence, stalking, or harassment, the judge will assume that sole custody, joint custody (legal or physical) or any shared parenting plan is harmful to the child and not in the child’s best interest. It will be assumed that it is in the child’s best interest to live with the non-abusive parent.* However, the abusive parent can offer evidence to prove that the judge should change his/her mind and still grant the parent custody rights. For the legal definition of domestic violence, stalking, and harassment, please go to our OK Statutes page and read Title 43, section 109, subsection I (2).
The law also says the judge is supposed to assume it is not in the child's best interest for a parent to get custody (the law doesn't mention visitation) if the parent:
However, even if a parent meets one of these 4 above criteria, the parent can still try to offer evidence to change the judge's mind and get custody rights.
Note: In any case, custody or visitation is not supposed to be granted to a parent if you can prove that it will likely expose the child to a foreseeable (likely) risk of serious harm.***
If an abusive parent is seeking visitation or custody, we strongly suggest that you seek the assistance of an attorney who has experience with domestic violence issues and custody. To find an attorney or shelter in your area, see our OK Finding a Lawyer page.
* 43 O.S. § 109(I)(1)
** 43 O.S. § 112.2(B)
*** 43 O.S. § 112.2(C)
A non-parent, such as a grandparent, can only try to get custody of the child by showing that the parents are unfit. This is a hard thing to do. Another way to get custody is if you have the permission (agreement) of the parents. The parents must relinquish (give up) custody in writing and a judge must award custody to you. You may also be able to get custody if the parents abandon the child. It is highly recommended that you get an attorney to help you out with these types of custody cases. You may be able to find legal help on our OK Finding a Lawyer page.
If the parents won’t allow you to visit and you file for visitation in court, you can only get visitation of the child against the wishes of the parents if:
Note: There are specific scenarios that your situation would have to fall under to apply for grandparent visitation even if you believe you meet the factors above. To read the specific circumstances you would have to meet, go to our OK Statutes page, and read paragraph A.1 of section 109.4. To read the factors the judge will consider when deciding if it is in the child’s best interest (mentioned in #1, above), go to our OK Statutes page, and read section E.1 of section 109.4.
* 43 O.S. §109.4
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. To find other resources offered by LawHelp.org, go to www.LawHelp.org.
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.
If you plan to file for custody on your own, you may want to visit:
Even if you plan on representing yourself, you should consider having a lawyer review your papers before you file them.
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.
Most likely, yes. 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 the TANF and CSED websites for more details - click on the Temporary Assistance for Needy Families link.
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 foras 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
To try to change a custody order, you can file a motion with the court asking the judge to modify (change) your final custody order. There will most likely be fees involved. If you cannot afford the fees, you may file an “affidavit in forma pauperis” in which you explain that you are a low-income person and you are asking the court to waive any court costs.
To modify a joint custody order while still keeping joint custody, if you and the other parent agree on changes to the plan for joint care, custody and control, you can file these changes with the court. If only one parent wants to change the terms of a joint custody order, s/he can file for the modification. In both cases, the judge will only approve the modification(s) if s/he thinks that these changes are in the best interest of the child. If you are asking to terminate the joint custody order because you are asking for sole custody, the court could terminate the joint custody order and continue with the case as if that order had never been agreed to.*
If you have joint custody of your child and you and the other parent have a disagreement about the terms of the custody arrangement, the judge may appoint an arbitrator to your case. An arbitrator is a person who knows about family law and counseling. S/he will look at the facts of your situation and make a decision about how to interpret the part of the order that you and the other parent are disagreeing about. This person’s decision will be legally binding; this means that it will be enforced in the same way as if a judge had made the decision and it is final. If a judge orders arbitration and a parent refuses to consent (agree), the court may decide to end the joint custody agreement.*1
You may have an attorney present at all times if you want one. It is recommended that you get an attorney if you can afford one or obtain one through free or low-cost legal services. For a link to these services, please see our OK Finding a Lawyer page.
To change a custody order from joint to sole or from sole to joint, you will be required to show the court that there has been a permanent, material and substantial change in the custodial situation that negatively affects the child and that changing custody would be in the child’s best interests.*2 This is a tough standard to meet but it is supposed to prevent parents from battling constantly in court to change custody and provide for stability in the child's life. For example, if the custodial parent was convicted of drug possession, the court may agree that this is a substantial change in circumstances and might consider whether your home now is better for the child than the other parent's home.
Note: When a parent is required to be separated from a child due to military service, the court shall not enter a final order modifying an existing custody order until such time as the parent has completed the term of duty requiring separation.*3 A military deployment cannot be used as evidence of a substantial, material and permanent change of circumstances to permanently modify custody.*4
* 43 O.S. § 109(E),(F),(G)
*1 43 O.S. § 109(H)
*2 See, for example, Boatsman v. Boatsman, 697 P.2d 516 (Okl. Supr. Ct,1984.); Buffalo v. Buffalo, 211 P.3d 923 (Okla.Civ.App. Div. 2009)
*3 43 O.S. § 112(5)
*4 43 O.S. § 112.7
It may be possible. If you move to another state, you may be able to change the state where the custody case is being heard, especially if the other parent no longer lives in the state that made the initial custody order or if there is no longer a significant connection between the child and the state that issued the order. In other words, if the court finds that there is no evidence from the original state anymore about the child’s life, then a new state where there are significant ties with the child may be able to hear the case (have jurisdiction.)* You will generally have to ask the judge who is hearing the case to change the jurisdiction of your case. See our Changing a final custody order page for more information.
This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to our OK Finding a Lawyer page for legal referrals.
* 43 O.S. § 551-202(1) & (2)
To get specific advice about your situation, we recommend talking to an attorney. If you are thinking of moving up to 75 miles away, you may want to ask an attorney whether or not you have to notify the court or the other parent in some way. For intended moves of more than 75 miles, Oklahoma has a law that requires parents to give a written notice of intended relocation to the other parent if they are going to move more than 75 miles from their current residence (for 60 days or longer) and there is custody and visitation order in place.* The notice has to be sent by mail to the last-known address of the person to be notified, and you have to send it at least 60 days before you intend to move or if you did not know about the move 60 days in advance (and you can’t delay the move), you have to send it within 10 days of finding out. The following information has to be included in the notice:
In making a decision regarding a proposed relocation, the judge will consider the following factors:
Yes, a parent who does not have custody can get access to your child's records unless you have a court order restricting the non-custodial parent's access. This includes medical records, school records, and many other types of records that may have your home address and contact information. If you do not want the non-custodial parent to get access to these records, you must request that the court restrict the other parent's access. The judge will only do this if s/he believes that doing so would be in the best interests of the child.* Be sure to tell the judge about any domestic abuse in your household.
* 43 O.S. § 109.6
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:
The Centralized Child Support Registry is a system maintained by the Child Support Enforcement Division (CSED) of the Department of Humans Services (DHS) that allows it to receive and distribute child, spousal (alimony), and related support payments. This allows CSED to monitor support payments and make sure they are being made and being made on time.
There are different ways you can have your support payments made through the Registry. First, you can request it in court when you apply for support.* Second, if you have the payments garnished (taken) from the other parent’s income (known as income withholding), these payments will go through the Registry. Also, if you apply for Temporary Assistance for Needy Families (TANF), they will automatically register your payments or start proceedings against the other parent for child support s/he is not paying.**
If you have a support order and the other parent is behind in support payments, you can file with CSED to start an enforcement investigation to go after the delinquent parent. Once the parent is found, the payments will be made through the registry.
* 43 O.S. § 413(C)
** 43 O.S. § 237(C)
If the other parent isn't paying court-ordered support, you can fill out an application with the Child Support Enforcement Division (CSED) of the Department of Human Services (DHS). DHS has a system called Centralized Child Support Registry that is designed to help CSED receive and distribute child support and spousal support (alimony) payments. This registry allows CSED to monitor support payments and make sure they are being made and being made on time. You can reach Child Support Services of the Department of Human Services at 1-800-522-2922. CSED will then attempt to track down that parent and make him or her pay. If CSED is unable to make the delinquent parent pay, it can do things like:
No. If a parent who has court-awarded visitation rights stops paying court-ordered child support, you cannot legally deny him/her the right to see their child. If you do, you could be held in contempt of court for violating the court order of custody/visitation. Oklahoma law views visitation and support as being separate. In fact, a pattern of failing to allow court-ordered visitation can be seen as being against the best interests of the child and therefore can be grounds for modification of a child custody order (unless you can prove “good cause” for denying the visits).*
To try to stop visitation, in general, the custodial parent may go to court to try to have visitation modified or suspended, but visitation cannot be denied without an order from the court. When the child's safety and well-being would be threatened by allowing the non-custodial parent to have the court-ordered visitation (such as when the visiting parent is chemically dependent, involved in an abusive relationship, living with or married to someone that may be harmful to the child, etc.), the custodial parent can possibly get a temporary injunction to immediately stop visitation. Then, the next step would be to file with the court to ask that the visitation agreement be permanently modified.
* 43 O.S. § 112(D)(1)