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)
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.
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)
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