A Father’s Guide to Divorce and Child Custody in Oklahoma
This post will discuss two important topics about a father’s rights:
Establishing a Father-Child Relationship
Obtaining Custody of a Child
1. Establishing a Father-Child Relationship
Legally, you may establish a father-child relationship if you are:
The “presumed father”
The “acknowledged father”
The “adjudicated father”, or
You adopt the child.
I will now describe each of these in more detail:
You are a child’s presumed father if:
1. You and the mother are married to each other and the child is born during the marriage; or
2. You and the mother were married to each other, and the child is born within 300 days after the marriage was terminated; or
3. You and the mother attempted to marry each other in apparent compliance with the law, even if the marriage is or could be declared invalid, and the child is born during the invalid “marriage” or within 300 days after the invalid “marriage” was terminated; or
4. For the first two years of the child’s life, you reside in the same household with the child and openly hold out the child as your own; or
5. The child is born out of wedlock, and after the child was born, you married the mother, and you voluntarily asserted the paternity of the child, and
The assertion is in a record with the Oklahoma Department of Human Services (DHS); or
You agreed to be named, and are named, as the father on the child’s birth certificate; or
You promised in a record to support the child as your own.
To become the child’s acknowledged father, both you, and the child’s mother, must sign an acknowledgement of paternity, on a form provided by Oklahoma DHS. The signed from must be recorded with DHS. If the child has a presumed father, the presumed father must sign a denial of paternity within two years of the child’s birth. If the child has a presumed father, a signed acknowledgment of paternity is not effective until the presumed father signs a denial of paternity.
Once an acknowledgment of paternity is effective, the father named on the acknowledgment of paternity has all the rights and duties of a father under Oklahoma law.
For you to become an “adjudicated father”, a judge must rule that you are the father of the child. For this to occur, someone must file a paternity action in an Oklahoma district court. The following persons may file a paternity action:
1. The child;
2. The mother of the child
3. A man whose paternity is to be adjudicated;
4. Oklahoma DHS
5. A representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor.
Until 2019, if the child had a presumed father, no one could contest paternity later than two years after the child’s birth. If the child had an acknowledged father, no one could contest paternity later than two years after the signing of the acknowledgment of paternity. On November 1, 2019, this law changed. Now, a person authorized to file a paternity action, may contest paternity after the two-year deadline, if the person filing the contest can prove fraud. However, if the person contesting paternity cannot prove fraud, the two-year deadline still applies. Click here for more information about the new law that may allow you to contest paternity after the two-year deadline.
In a paternity action, the judge may also order that the child’s surname be changed to your surname, if both you and the mother agree.
Adoption of a Child
To find out how to adopt a child, click on my post, “Adoption in Oklahoma”.
2. Obtaining Custody of a Child
If you were not married to the mother when the child was born, the mother has custody of the child until a court determines otherwise. 10 O.S. § 7800.
If you are in a custody dispute against the mother of your child, the court will not likely show any bias against you simply because you are a man. An Oklahoma law says that that a court “shall not prefer a parent as a custodian of the child because of the gender of that parent.” In the past, Oklahoma followed the “tender years doctrine”, in which courts preferred to award custody of young children to the mother. The state legislature abolished this doctrine in 1983. I have practiced family law in Oklahoma for the past ten years, and have been counsel of record in over one hundred custody cases, and I have never seen any case in which a judge awarded custody of the child to the mother simply because she was a woman.
However, because the statute states that a court shall not prefer a parent because of the parent’s gender, this also means that you will not be preferred because you are a man, either. The legal standard, in a custody dispute between to parents, is not the gender of the parent, but rather “what appears to be in the best interests of the physical and mental and moral welfare of the child.” 43 O.S. 109(A).
While there is not a preference in state law to award custody either to mothers or fathers, there is a presumption to award custody to parents. A court may only award custody to a non-parent if the court finds that both parents are unfit.
Mother v. Father: Test is: What is in the best interests of the child?
Parent v. Non-Parent: Test is: Are the parents unfit?
When the court makes its custody award, the court will either award sole custody to one parent, or joint custody to both parents. Click here to see the difference between sole custody and joint custody.
But, whether the court awards sole custody or joint custody, the mother will not be allowed to change the child’s surname away from your surname, if you object. As a father, you have a constitutional right to have your child bear the same surname as you do. See Application of J.S.S.
When the court awards custody, the court also will usually order a visitation schedule, in which the court specified which parent gets to see the child at what times. The court will also order one parent to pay child support to the other parent. Click here to see how child support works in Oklahoma.
A divorce or custody case can be the most emotionally wrenching experience for any father to go through. The Persaud Law Office has represented many fathers in custody cases, and we understand your plight.