• Kyle Persaud

Child Custody Laws in Oklahoma – What You Should Know

If you’re going through a child custody case, or if you’re about to go through a child custody case, you may be wondering: What is the law on child custody in Oklahoma? This post will give a brief overview of Oklahoma child custody laws.


A court may award custody in the following types of cases:


· Divorce cases;


· Annulment cases, if the spouses seeking an annulment have children;


· Paternity cases. A paternity case is a legal action between two parents who are not married to each other. In a paternity case, a court can award custody, visitation, and child support. (However, if a child is born out of wedlock, the mother has custody of the child until the court orders otherwise.);


· Guardianships. In a guardianship, a person other than a parent seeks custody of a child.


Sole Custody v. Joint Custody


In actions between parents (that is, in divorces, annulments, and paternity cases) there are two types of custody that a court may award: sole custody and joint custody.

In general, when a court awards sole custody (also called full custody), one parent has the complete say-so in all decisions regarding the child’s upbringing. When a court awards joint custody, both parents have input in decisions regarding the child’s upbringing, and the parents are expected to collaborate. A court is only supposed to award joint custody when both parents are able to cooperate in decision-making regarding the child. For more information about the difference between sole custody and joint custody, click here.


Best Interests of the Child


In awarding custody, the court is to make the award that the court deems to be “in the best interests of the child.” Obviously, this is a subjective standard, and gives courts wide latitude in making its decision. If parents appeal a custody order, the appellate court will give great deference to the trial court’s custody determination, and an appellate court will not overrule a trial court’s custody determination unless the trial court has clearly abused its discretion.


Visitation


When a court awards custody, the court will, generally, award visitation to the other parent. State law requires that a court “assure children of frequent and continuing contact” with both parents. A court should not deny visitation unless exceptional circumstances exist. Often if a parent has been abusive or is unfit, or is using drugs, the court will award supervised visitation to that parent, rather than deny visitation entirely.


Can the Court Take the Child’s Wishes into Account?


If a child is mature enough to form an intelligent preference, the court must consider the child’s preference, when the court awards custody. If the child is at least twelve years old, there is a rebuttable presumption that a child is mature enough to form an intelligent preference.


Note that the law says “shall consider.” It does not say “shall follow.” The law requires a court to consider the child’s preference if the child is sufficiently mature, but the law does not require a court to follow the child’s preference. Until a child turns eighteen, a court is not bound by a child’s wishes.


For more information on how courts may take a child’s preference into account, click here.


Prohibitions

Under Oklahoma law, a court may not award custody of a child to any person who has been convicted of:


1. Sexual abuse or sexual exploitation of a child;


2. Child endangerment, if the offense involved sexual abuse of a child;


3. Kidnapping;


4. Incest;


5. Forcible sodomy of a child;


6. Child stealing, if the offense involved sexual abuse or sexual exploitation;


7. Procuring minors for participation in child pornography;


8. Consent to participation of minors in child pornography;


9. Facilitating, encouraging, offering or soliciting sexual conduct with a minor by use of technology;


10. Distributing child pornography;


11. Possession, purchase or procurement of child pornography;


12. Aggravated possession of child pornography;


13. Procuring a child under eighteen (18) years of age for prostitution;


14. Inducing, keeping, detaining or restraining a child under eighteen (18) years of age for prostitution;


15. First degree rape;


16. Lewd or indecent proposals or acts to a child under sixteen (16) years of age; or


17. Solicitation of minors in any crime provided in subsection B of Section 1021 of Title 21 of the Oklahoma Statutes.


Drug Use


A court may order drug testing on one or both parents, and may take a parent’s drug use into consideration when determining child custody.


After the legalization of medical marijuana in Oklahoma, the state legislature passed a law stating that a court may not deny a medical marijuana license holder custody or parenting time with a child “unless the person's behavior creates an unreasonable danger to the safety of the minor.”


However, note the language “unless the person’s behavior creates an unreasonable danger to the safety of the minor.” Even though medical marijuana is legal, a judge can still deny custody to a licensed medical marijuana user, if the judge believes that the parent’s marijuana use “creates an unreasonable danger to the safety” of a child. The state law does not define what “an unreasonable danger to the safety” is. It will be up to each individual judge to decide whether, in a given case, an unreasonable danger to the safety of a child exists.


Custody Awards to Non-Parents


A court must give parents preference in awarding custody. A court may not award custody to a non-parent, unless the court finds that both parents are “affirmatively unfit.” “Affirmatively unfit” means that there is something about the parents that makes him or her unable to raise a child. “Affirmatively unfit” does not mean merely that someone else would do a better job raising the child.


Note the difference in the language:


In a case between two parents, the question is: What is in the child’s best interests?

In a case between parents and a non-parent, the question is: Are the parents affirmatively unfit?


There is a “rebuttable presumption” that a parent is affirmatively unfit if the parent:


1. Is or ever has been required to register as a sex offender;


2. Has been convicted of a crime listed in Section 582 of the Oklahoma Sex Offender Registration Act;


3. Has been convicted of domestic abuse in the past five years;


4. Is living with someone who possesses the above characteristics;


5. Is living with someone convicted of abuse, neglect, exploitation, or sexual abuse of a child;


6. Is alcohol- or drug-dependent, and can be expected to seriously harm himself or someone else. (However, there is not a rebuttable presumption that a parent is unfit, if the parent is living with an alcohol- or drug-dependent person who can be expected to harm himself or someone else.)


Note that, the above list of “rebuttable presumptions” is not exhaustive. A court can still find that a parent is affirmatively unfit, even if the parent does not possess any of the above listed characteristics.


Changing Custody


Either parent can ask that a court order a change in custody if:


1. There has been a “permanent, substantial, and material” change in circumstances, so that the child would be substantially better off if custody is changed, or if


2. There are newly-discovered facts, relevant to custody, that existed at the time of the decree, but the court did not know of these facts at the time of the decree.


Relocation after Custody


If a parent with custodial or visitation rights to a child wants to change his/her residence to a place more than 75 miles away, and live there for a period of more than sixty days, then the parent who wants to relocate must send the other parent (and anyone else entitled to visitation or custody of the child) notice of:


a. the relocating parent’s new address,


b. the relocating parent’s new home telephone number,


c. the moving date,


d. why the parent wants to relocate,


e. a proposed new visitation schedule, if the relocating parent wants to change the visitation schedule


f. a warning to the nonrelocating parent that an objection to the relocation must be made within thirty days or the relocation will be permitted.


The parent wishing to change residence must send this information no later than sixty days before the moving date. If the parent did not know this information at least sixty days before the moving date, then the parent must send the information to the other parent, no later than ten days after the parent learns the information.


If the other parent makes no objection to the relocation within thirty days, the other parent may relocate. However, if the other parent objects to the relocation, the court will hold a hearing to decide if the other parent may relocate. At the court hearing on relocation, the parent objecting to the relocation has the burden of proving that relocation is not in the child’s best interests.


Note that, after a court awards custody, either parent who wishes to relocate must comply with this statute. The law says that any parent entitled to custody “or visitation” must comply with these rules in order to relocate. This means that, if a court awards sole custody, and allows visitation to the other parent, then the non-custodial parent is still subject to these conditions.


Closing thoughts


A child custody case can be emotionally devastating. Custody is also complicated. This post only scratches the surface of child custody law in Oklahoma. If you are in a child custody case, I would encourage you to seek legal help today.

NOTE: The information provided on this website is not intended to be, and does not constitute, the giving of legal advice. The information provided here is not intended to be, and should not be used as, a substitute for individual reliance on privately retained legal counsel. Information provided on this site may not constitute the most current or complete information with respect to legal topics or developments. Mr. Persaud expressly disclaims all liability based on any information contained on this site.”

© 2020, by Kyle Persaud.