Legal Information: Oklahoma

Custody

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Updated: 
December 8, 2023

Most commonly, custody will be given to one or both parents. However, a non-parent can file for custody in extreme circumstances. The non-parent would then appear before the court to try to prove that both parents are unfit and that the non-parent should get custody. However, this does not mean that a non-parent can get custody by coming to court and saying, “We can take better care of the child than either parent.” A judge must decide that the parents are “unfit.”1

We recommend you talk to an attorney when you are involved in a divorce or custody dispute, especially if 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)

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 a parent who committed domestic violence, stalking, or harassment get visitation or custody?

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

  • unsupervised visitation;1
  • sole custody; 
  • joint custody; or 
  • any shared parenting.2  

However, the abusive parent can offer evidence to convince the judge to change his/her mind and still grant the abusive parent custody rights. In addition, an abusive parent can get visitation if the judge can provide for the safety of both you and your child during those visits.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;
  1. stalking as defined in Oklahoma Statutes Section 1173 of Title 21; and
  2. harassment: 
    • a purposeful pattern of 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.4

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

How can the judge protect me if I have been a victim of domestic violence, stalking, or harassment from the other parent?

If the judge gives the abusive parent visitation rights even though s/he has committed domestic violence, stalking, or harassment against you, the judge can order the following safety measures:

  • a third party will pick up and drop off the child, or the exchange will take place in a protected setting;
  • supervised visitation paid for by the abusive parent;
  • the abusive parent must complete a batterer intervention program;
  • no unsupervised or overnight visitation until the abusive parent completes the batterers intervention program and a substantial period of time has passed since s/he last threatened or abused you; 
  • the abusive parent cannot have or consume alcohol or drugs (controlled substances) 24 hours before and during visitation; 
  • the abusive parent must complete a lethality/danger assessment with a qualified mental health professional; 
  • anything else that is necessary to protect you, your child, and any other household member;and
  • keeping your address confidential if you request it.2

If visitation is ordered, visitation can be terminated if:

  • the abusive parent violates the conditions for visitation;
  • your child becomes severely distressed as a result of the visitation, which can be determined by a mental health professional or a domestic violence specialist; or
  • it’s clear to the court that the abusive parent has threatened to harm you or the child or threatened to flee with the child.3

1 43 O.S. § 111.1(4)
2 43 O.S. § 111.1(7)
3 43 O.S. § 111.1(6)

Aside from domestic violence, stalking, and harassment, are there other reasons why the judge might not order custody or visitation?

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; or
  4. has been convicted of domestic abuse within the past five years or lives with someone who has.1

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.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 a parent if you can prove that it will likely expose the child to a probable (foreseeable)risk of serious harm.3

If an abusive parent is seeking visitation or custody, we strongly suggest that you get help from 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)
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 believes that you have proven your case, the offender’s rights can be terminated.1

In addition, the offender’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

10A O.S. § 1-4-904(11)
10A O.S. § 1-4-904(8)(b)

I am the child's grandparent. Can I get visitation?

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

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