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