If a custody order is already in place, how can I get it changed?
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.1
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.2
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.3 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.4 A military deployment cannot be used as evidence of a substantial, material and permanent change of circumstances to permanently modify custody.5
1 43 O.S. § 109(E),(F),(G)
2 43 O.S. § 109(H)
3 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)
4 43 O.S. § 112(5)
5 43 O.S. § 112.7
Can I change the state where the case is being heard?
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.)1 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.
1 43 O.S. § 551-202(1) & (2)
If there is a custody order in place, can I relocate with my children?
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.1 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:
- the intended new residence, including the specific address, if known,
- the mailing address, if not the same,
- the home telephone number, if known,
- the date of the intended move or proposed relocation,
- a brief statement of the specific reasons for the proposed relocation of a child, if applicable,
- a proposal for a revised schedule of visitation with the child, if any, and
- a warning to the non-relocating parent that an objection to the relocation must be made within 30 days or the relocation will be permitted.
However, if you believe that you or your child would be in danger by giving the required identifying information in the notice, you can ask the judge to order that the address and telephone number and other identifying information will not be shown to the abuser. You can also ask for permission to not give the 60 days (or 10 days) notice if that would endanger you or your child. The judge can hold an ex parte hearing (without the abuser present) to decide on these issues.
If the other parent disagrees with the move, s/he has to file an objection in court (and can ask for a temporary or permanent order to prevent the relocation) within thirty days after receiving the notice in the mail. Note: A non-parent who has a visitation order cannot legally object to the relocation but can file to get a new visitation schedule.2
If you don’t properly notify someone who has custody or visitation rights about the relocation (without the court telling you that you do not have to share the information in order to protect the safety of you or the child), the court may take that into account when determining whether to allow you to move, to change the custody or visitation arrangements, or make you pay any attorney fees and costs of the other party who objects to your relocation. It can also be the reason that the judge orders the return of the child if the relocation has taken place without notice.3
1 43 O.S. § 112.3(A)(5),(C)
2 43 O.S. § 112.3(A)-(I)
3 43 O.S. § 112.3(F)
What factors will a judge consider when deciding if I can relocate with my child?
In making a decision regarding a proposed relocation, the judge will consider the following factors:
- the nature, quality, and amount of involvement, and length of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life,
- the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child,
- the likelihood of being able to preserve the relationship between the non-relocating parent and the child through a visitation arrangement (considering the length of travel and the financial circumstances of the parties) ,
- the child's preference, taking into consideration the age and maturity of the child,
- whether there is an established pattern of conduct of the person seeking the relocation, either to promote or prevent the relationship of the child and the non-relocating parent,
- whether the relocation of the child will improve the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to a financial or emotional benefit or educational opportunity,
- the reasons of each person for seeking or opposing the relocation, and
- any other factor affecting the best interest of the child.
The judge cannot grant the relocation just based upon the fact that the judge had already given the parent a temporary order allowing the move while the case was pending. Also, the judge cannot consider whether or not the person seeking relocation of the child has declared that s/he will not relocate if relocation of the child is denied.1
Note: The relocating parent has to prove that the proposed relocation is made in “good faith.” If s/he does that, then it is up to the non-relocating parent to show that the proposed relocation is not in the best interest of the child.2
We strongly encourage you to get a lawyer for the relocation hearing. You can find legal referrals on our OK Finding a Lawyer page.
1 43 O.S. § 112.3(J)
2 43 O.S. § 112.3(K)
Can a parent who does not have custody have access to the child's records?
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.1 Be sure to tell the judge about any domestic abuse in your household.
1 43 O.S. § 109.6