Custody is the legal responsibility for the care and control of your minor child. Generally, there are two types: legal and physical.¹

Legal custody is the right to make major decisions about your child. Generally, these decisions include:

• where your child goes to school,
• whether your child gets surgery, and
• what kind of religious training your child receives.

Physical custody is the actual physical possession and control of a child.² In other words, it covers who the child lives with on a day-to-day basis. Some types of responsibilities with physical custody include:

• making day-to-day minor decisions such as what your child eats, what time s/he goes to bed;
• feeding your child;
• bathing your child; and
• taking your child to doctor’s appointments, school, etc.

¹ See Child Custody and Visitation, OKLaw.org
² 43 O.S. § 551-102(14)

Mediation is when a neutral third party sits down with the parents in a custody or visitation case and tries to help them agree on the custody arrangement without multiple court hearings. The parents are responsible for paying for mediation. 

In a divorce or child custody proceeding, an Oklahoma judge may require the parties to go to mediation. 

If domestic violence is involved, the judge usually will not require mediation. Be sure to tell the judge if the other parent is violent or abusive and you don’t want mediation. However, the judge can still require mediation in domestic violence cases if all of the following are true: 

• Your mediator has training in the effect of domestic violence or child abuse on its victims; 
• The judge believes you can negotiate with the abuser without there being an imbalance of power as a result of the abuse. This means the judge will try to decide whether or not you can reasonably get your voice and ideas heard by the abuser or if s/he may intimidate, frighten, or harm you in some way that would prevent you from feeling you can speak up; and
• The mediation process is set up to protect against this power imbalance that generally comes with domestic violence.¹

So, if your judge orders mediation and you are a victim of domestic violence, you may be able to argue that one or more of these conditions have not been met and that mediation will have a harmful effect on you.

¹ 43 O.S. §107.3(B)

There are many reasons people choose not to file for custody. Some parents decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Parents may be concerned that going to court will provoke the other parent. They may worry that if they start a custody case, the other parent will suddenly fight for, and may get, more custody or visitation rights than they are comfortable with.

If the other parent is uninvolved with the child now, he or she may become involved just because a case was started. Also, if the other parent fights for custody, the case may drag on for a long time, which can be emotionally and financially draining. The court will look into many aspects of your personal life that you may prefer keeping private such as past mental health issues, your criminal record, substance abuse issues, and details of your personal relationships.

However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:

• the right to make decisions about your child; and
• the right to have your child live with you.

Without a custody order, it is possible that both parents may share these legal rights, even if one parent takes care of the child every day. However, if you file for custody, the other parent may also request these rights, and it will be up to the judge to decide. 

We strongly recommend talking to a lawyer who can help you think through whether filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the Oklahoma Finding a Lawyer page.

In a custody or visitation case, the judge should consider evidence of domestic abuse, child abuse, stalking, or harassing behavior by either parent.¹ If the judge believes a parent has done one or more of these things, s/he will assume that it is not in the child’s best interest to allow the abusive parent to have: 

• unsupervised visitation;
• sole custody; 
• joint custody; or 
• any shared parenting.¹  

However, the abusive parent can offer evidence to convince the judge to change his/her mind and still grant him/her custody rights. An abusive parent can also get visitation if the judge can provide for the safety of both you and your child during those visits.² For more information, see How can the judge protect me if I have been a victim of domestic violence, stalking, or harassment from the other parent?

Note: To decide if a parent is abusive, the judge will use the following definitions: 

1. domestic violence: 
   
   • physically harming you or threatening to do so;
   • causing you to reasonably fear being physically harmed; or
   • intentionally causing you, your child, or another member of the household emotional distress. This can include using coercive control through physical, sexual, psychological, emotional, economic, or financial abuse;

2. child abuse as defined in Oklahoma Statutes Section 1-1-105 of Title 10A;
3. stalking as defined in Oklahoma Statutes Section 1173 of Title 21; and
4. harassment: 
   
   • an intentional pattern of actions (conduct) that seriously alarms you or is a nuisance to you and serves no legitimate purpose. This includes: 
     • harassing or obscene telephone calls; or 
     • behavior that would cause a reasonable person to be in fear of death or bodily injury.³

¹ 43 O.S. §§ 109.3; 109(I)(1)
² 43 O.S. § 111.1(3)
³ 43 O.S. § 109(I)(2)

The law says the judge is supposed to assume it is not in the child’s best interest for a parent to get custody if the parent:

1. is a registered sex offender or lives with one;
2. has been convicted of a crime involving child abuse or lives with someone who has;
3. is dependent on alcohol or drugs and can be expected in the near future to seriously harm or attempt to harm himself/herself or another person as a result of such dependency;
4. has been convicted of domestic abuse within the past five years or lives with someone who has; or
5. has had custody, guardianship, or visitation rights ended because of his/her failure to complete or participate in a court-ordered substance abuse or mental health treatment.¹

However, even if a parent meets one of these above criteria, that parent can still try to offer evidence to change the judge’s mind and get custody rights.¹ 

If you are looking to get the other parent’s rights terminated, you can file a petition to terminate parental rights if the other parent was convicted in criminal court of any of the following:

• rape;
• rape by instrumentation; 
• permitting a child to participate in pornography;
• lewd molestation of a child under sixteen years of age;
• child abuse or neglect;
• enabling child abuse or neglect;
• causing the death of a child as a result of the physical or sexual abuse or chronic abuse or chronic neglect of the child;
• murder of any child or aiding, abetting, attempting, conspiring, or soliciting to commit murder of any child;
• voluntary manslaughter of any child;
• a felony assault that has resulted in serious bodily injury to the child or another child of the parents; or
• murder or voluntary manslaughter of the child’s parent or aiding or abetting, attempting, conspiring, or soliciting to commit murder of the child’s parent.²

Note: Custody or visitation is not supposed to be granted to the other parent if you can prove that it will likely expose the child to an expected (foreseeable) risk of serious harm.³

If an abusive parent is seeking visitation or custody, it is important to talk to a lawyer who has experience with domestic violence issues and custody. To find an attorney in your area, see our Oklahoma Finding a Lawyer page.

¹ 43 O.S. § 112.2(B)
² 10A O.S. § 1-4-904(8)(b)
³ 43 O.S. § 112.2(C)

If the parents don’t allow you, the grandparent, to visit with your grandchild, you may need to go to court and file a petition for visitation. The judge may grant you reasonable visitation rights if:

1. It is in the child’s best interests to have visitation with you; and
2. Either of the following is true:
   
   • The parents are proven to be unfit; or
   • You have proven that a fit parent is not acting in the best interest of the child by denying you visits because:
     • the child will/can be harmed by the denial of contact with you; and
     • the child’s family unit has been disrupted by something like divorce, the death of a parent, or the child being deserted, etc.¹

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 must meet, go to our Selected Oklahoma Statutes page and read subsection 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, go to our Selected Oklahoma Statutes page and read subsection E.1 of section 109.4.

¹ 43 O.S. § 109.4

When you file a motion for an emergency custody hearing in Oklahoma, it must include either:

1. a police report, a report from the Department of Human Services, or a report from another independent source that shows that:
   • the child is in surroundings that endanger his/her safety; and 
   • if such conditions continue, the child would likely be subject to irreversible harm; or
2. a notarized affidavit from someone with first-hand knowledge that the child is in surroundings that endanger the safety of the child and that not granting emergency custody would likely cause irreversible harm to the child.¹

The judge is supposed to hold a hearing within 72 hours of when you file the motion.  If the judge doesn’t conduct a hearing in that time frame, 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.¹

You may want to consult a lawyer before filing for emergency custody. To find one in your area, visit the Oklahoma Finding a Lawyer page.

¹ 43 O.S. § 107.4(A)

A judge will decide custody based on what s/he thinks is the best interest of the child. This includes the physical, mental, and moral welfare of your child.¹ Some factors a judge may consider are:

• any history of causing physical harm, bodily injury, assault, verbal threats, stalking, or harassing behavior, or causing another person or a minor child to fear of any of these;²
• which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent;³
• a pattern of failing to allow court-ordered visits;⁴
• the preference of the child, if the judge believes the child is old and mature enough to form an intelligent preference;⁵
• the parents’ preference;
• the mental and physical health of the parents;
• the relationship between the parents and the child;
• if either parent is a registered sex offender;
• any conviction for child abuse or domestic violence;
• alcohol and illegal drug use or abuse; and
• any probable (foreseeable) risk of serious (material) harm.⁶

¹ 43 O.S. § 109(A)
² 43 O.S. § 109(I)(5)
³ 43 O.S. § 112(C)(3)(a)
⁴ 43 O.S. § 112(D)(1)
⁵ 43 O.S. § 113
⁶ OKLaw.org - Custody and Visitation Considerations

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 why s/he decided the way s/he did.

Under 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 in 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 under six months old, then your child’s home state is 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 six months. 

Before filing for custody, you may consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Oftentimes, parents who fight for sole custody will litigate in court for months or even years and end up with some joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives, and depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:

• If you are a married parent filing for divorce, you can usually include the custody petition within the divorce process.
• If you are a married parent not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
• You can also seek custody in court if you are an unmarried parent. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process. For more information, see How can paternity be established in Oklahoma?

2. Prepare for the custody process

The court custody process is usually very long and emotionally and financially draining. If you represent yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section. If you can hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case about why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see the question How will a judge decide custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child, and many states consider that this is to have a relationship with both parents.

3. Prepare for trial

There will be one or more hearings, including a trial if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney can present evidence and cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

• communications between the parents can only be in writing;
• all communications can only be related to the child; and
• a neutral third party should be present at the exchange of the child or the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child to avoid future conflicts.

4. Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

A petition to change (modify) the order is an option that would not be filed immediately. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.

To find out more about how the process works in your area, please contact a lawyer. Please visit our Oklahoma Finding a Lawyer page to find legal help in your area.​ You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.

You can file a motion with the court asking the judge to change (modify) your final custody order, and it will be up to the judge whether to allow the change or not.  

There can be a few different ways to modify a joint custody order:

• 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 and ask the judge to include them in a new order;¹ or
• If only one parent wants to change the order or wants to terminate joint custody, s/he can file a motion to modify.  The judge will hold a hearing and may change the order if s/he believes it is in the best interest of the child.²

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, important (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, but it’s meant to prevent parents from constantly battling in court to change custody and to keep 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 military services requires a parent to be separated from a child, the court will not enter a final order modifying an existing custody order until 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 modify custody permanently.⁵

¹ 43 O.S. § 109(E) 
² 43 O.S. § 109(F), (G) 
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

If your home is your child’s primary residence, you may need to notify the other parent if you want to relocate. If you are moving less than 75 miles away, you may want to contact an attorney to ask if there’s anything you need to do before moving. 

However, if you plan to move more than 75 miles away for 60 days or more, you must give the other parent a written notice of intended relocation.¹ The notice must be sent by mail to the last-known address of the other parent, and you must send it at least 60 days before you intend to move. 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 ten days of finding out about the move.²

The notice needs to include the following information:

1. where the new residence will be, including the specific address, if known;
2. the mailing address, if different;
3. the home telephone number, if known;
4. the date of the intended move or proposed relocation;
5. if applicable, the specific reasons for the proposed relocation;
6. a proposal for a revised schedule of visitation with the child, if any; and
7. a warning to the non-relocating parent that s/he must object to the relocation within 30 days, or the relocation will be permitted.³

If the judge believes that you or your child would be in danger by giving the required identifying information in the notice, the judge can:

• order that the address, telephone number, and other identifying information is not included on court documents;
• waive the notice requirements as necessary to protect you and your child;
• order anything else that the judge thinks is necessary to meet the parties’ needs, and that is in the child’s best interest.⁴

If the other parent disagrees with the move, s/he has to file an objection in court within 30 days of receiving the notification.  The other parent can request a temporary or permanent order to prevent the relocation.⁵ Note: A non-parent with a visitation order cannot legally object to the relocation but can file for a new visitation schedule.⁶

If you don’t properly notify someone who has custody or visitation rights about the relocation, the court may take that into account when determining whether or not:

1. to allow you to move; 
2. to change the custody or visitation arrangements; or
3. to make you pay any attorney fees and costs of the other party who objects to your relocation.⁷

If the relocation has taken place without notice, this can be the reason why the judge orders the child’s return.⁷

¹ 43 O.S. § 112.3(B)(1)
² 43 O.S. § 112.3(C)(1)
³ 43 O.S. § 112.3(C)(2)
⁴ 43 O.S. § 112.3(E)
⁵ 43 O.S. § 112.3(G)(2)
⁶ 43 O.S. § 112.3(G)(3)
⁷ 43 O.S. § 112.3(F)   

A parent without custody can access 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 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