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.