Basic info and definitions
What is custody?
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:
- 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. 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.
In Oklahoma, the courts often award a parent “custody” without specifically saying “legal” or “physical” custody. When the court does this, it generally means that the parent has both physical and legal custody. If you have a custody order and are unsure about its meaning, we suggest talking to a lawyer – you can find legal help on our OK Finding a Lawyer page.
What options are there for legal custody?
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.
What options are there for physical custody?
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:
- feeding your child,
- bathing your child, and
- putting your child to bed at night.
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.1
1 43 Okla. St. § 109(H)
What is mediation?
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.
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 s/he finds these three conditions are satisfied:
- Your mediator has training in the effect of domestic violence or child abuse on its victims; AND
- 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 fairly get your voice and ideas heard by the abuser or if it is possible that 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 these conditions are not satisfied and that mediation will have harmful effects on you.
1 43 O.S. §107.3(B)
What is a parenting coordinator and do I have to get one?
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.1 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.2 Even if the judge appoints a coordinator, the judge has the final say on things like custody, visitation and child support.3
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:
- there is a lot of conflict (disagreements) between the parents; and
- the judge thinks that the coordinator is in the best interest of the child.4
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.5
1 43 O.S. § 120.3(A)
2 43 O.S. § 120.4(A),(C),(D)
3 43 O.S. § 120.3(C)(2)
4 43 O.S. § 120.3(A),(B)(1)&(2)
5 43 O.S. § 120.5
What are some advantages and disadvantages of getting a custody order?
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:
- the right to make decisions about your child; and
- the right to physical custody of your child (to have your child live with 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.
Should I start a court case to ask for supervised visitation?
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.
Who can get custody or visitation
Who can seek custody?
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.”1
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 Oklahoma Finding a Lawyer page for legal referrals.
Note: In any situation where the court has to decide custody or visitation of a child, the court may decide to appoint an attorney, known as a guardian ad litem, to represent the best interests of the child.2
1 See, for example, Weber v. Linch, 579 P.2d 213 (Okl.App.,1978)
2 43 O.S. § 107.3(A)
Can an abusive parent get visitation or custody? What if s/he is a sex offender or an addict?
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.1 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 Selected Oklahoma Statutes.
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 if the parent:
- is a registered sex offender or lives with one;
- has been convicted of a crime involving child abuse or lives with someone who has;
- is dependent on alcohol or drugs and can be expected in the near future to seriously harm or attempt to harm to himself/herself or another person as a result of such dependency; or
- has been convicted of domestic abuse within the past five years or lives with someone who has.2
However, even if a parent meets one of these above criteria, the parent can still try to offer evidence to change the judge’s mind and get custody rights.
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 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;
- causing the death of a sibling of the child as a result of the physical or sexual abuse or chronic abuse or chronic neglect of the child’s sibling;
- murder of any child or aiding or 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.3
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.4
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 Oklahoma Finding a Lawyer page.
1 43 O.S. § 109(I)(1)
2 43 O.S. § 112.2(B)
3 10A O.S. § 1-4-904(8)(b)
4 43 O.S. § 112.2(C)
If my child was conceived from rape, can the offender's rights be terminated?
If your child was conceived as the result of rape, you can file a petition to terminate the offender’s parental rights. If, after a hearing, the judge determines that your child was conceived as a result of rape, the offender’s rights can be terminated.1
In addition, the other parent’s rights can be terminated based on a conviction in criminal court of rape, or rape by instrumentation, regardless of whether or not it resulted in your child being conceived.2
1 10A O.S. § 1-4-904(11)
2 10A O.S. § 1-4-904(8)(b)
I am the child's grandparent. Can I get custody or visitation?
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 agreement of the parents and they give up (relinquish) custody to you in writing; and then a judge must approve it 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 Oklahoma Finding a Lawyer page.
If the parents won’t allow you (the grandparent) to visit and you file for visitation in court, you can only get visitation against the wishes of the parents if:
- It is in the child’s best interests to have visitation with you; and
- Either of the following are 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 by showing that:
- 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, 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 would have to meet, go to our Selected Oklahoma 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 Selected Oklahoma Statutes page, and read section E.1 of section 109.4.
1 43 O.S. § 109.4
How the custody process works
Can I get temporary emergency custody?
When you file a motion for an emergency custody hearing in Oklahoma, the motion (legal papers) must include either:
- 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 that if such conditions continue, the child would likely be subject to irreversible harm; or
- 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 the emergency custody would likely cause irreversible harm to the child.1
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.1
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 Places that Help page.
1 43 O.S. § 107.4(A)
Can the child choose who has custody of him/her?
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.1 The child’s testimony and preference can be given in private to the judge, without the parents or attorneys present.2 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.3 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.4
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).5
1 43 O.S § 113(A),(B)
2 43 O.S § 113(D)
3 43 O.S § 113(E)
4 43 O.S § 113(F)
5 43 O.S § 113(C)
How will a judge make a decision about custody?
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:
- The wishes of each parent and sometimes the child (depending on the child’s age);
- The quality of the relationship between the child and the parents;
- The relationship with grandparents, siblings and or other significant people in the child’s life;
- The child’s relationship to his or her school, religious institution and community;
- The mental and physical health of all parties;
- Any past, present or possible future spousal or child abuse by either parent;
- Any past or present drug or substance abuse by either parent;
- Any past or present criminal actions by either parent other than minor infractions or less serious crimes that were committed a long time ago with no recent criminal actions;
- Which parent has been involved in the past in getting the child to doctor and dentist appointments;
- Which parent has been involved in the child’s schooling, attending parent teacher conferences and going to school functions;
- Which parent is most likely to provide a safe home environment for the child and not engage in activities in the home that can cause health problems for the child. Some judges like to find out who smokes in the home - especially if the child has asthma or allergies. Another safety issue is using a car seat for younger children;
- The willingness of a potential custodial parent to foster a relationship and visitation with the other parent;
- The stability in the child’s home life that a parent is able to provide for the child;
- A parent’s ability to provide for the material needs of the child;
- The demonstrated ability of each parent to make good decisions regarding the child’s welfare;
- Whether there are siblings or half-siblings with established close relationships (courts tend to keep siblings together); and
- A parent’s ability to spend time with the child.
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.
If I have moved away from the house where the other parent and children currently live, will this hurt my chances of gaining custody?
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.
How much does it cost? Do I need a lawyer?
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.1 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 Oklahoma 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. If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
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.2
1 12 O.S. § 922
2 43 O.S. § 112.6
Where can I file for child custody? (Which state has jurisdiction?)
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.
Are there any exceptions to the home state rule?
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.1 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:
- the child has been abandoned OR
- it is necessary in an emergency to protect the child because either the child, a sibling, or a parent of the child is subjected to or threatened with mistreatment or abuse.2
1 43 O.S. § 551-201(A)(2)
2 43 O.S. § 551-204(A)
What are the steps for filing for custody?
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 not married or married and NOT filing for divorce, your first step will depend on whether paternity (legal fatherhood) has been established. Paternity can be established in the following ways:
- in court (such as in an action to collect child support);
- by signing an acknowledgement of paternity;1 or
- because the child was born during the marriage or within 300 days after the marriage ended.2
If paternity has been established, a “petition for determination of custody and visitation” can be filed by either parent. If paternity has not been established, you could file a “petition to determine paternity, custody, support and visitation” (usually called a “petition for paternity”).
1 10 O.S. § 7700-301
2 Unif.Parentage Act (2000) § 204
Can I get financial support for my children and myself?
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. To see what the court does and does not consider as part of the parents’ income, go to our Oklahoma Child Support section.
Support for yourself. Alimony, also called spousal support, is something that you can ask for as a part of your divorce1 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.2 Some of the most common grounds for divorce or alimony without divorce are extreme cruelty (abuse), habitual drunkenness, adultery, and incompatibility but you can read all of the reasons that a judge may grant alimony in our Divorce section.
1 43 O.S. § 121(B)
2 43 O.S. § 129
After a custody order is in place
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