You must prove that full custody is in the best interests of the child
If you can prove that the other parent is unfit, you should receive full custody
If you’re in a custody case, you may be wondering, “How can I get full custody?”
First, many parents have a misconception of what “full custody” actually is. In Oklahoma, there are two types of custody: Sole custody and joint custody. Sole custody is the same as full custody; courts often use the terms full custody and sole custody interchangeably.
An Oklahoma statute defines joint custody as “the sharing by parents in all or some of the aspects of physical and legal care, custody, and control of their children.” No statute defines sole custody. Generally, when a court orders sole custody, the court gives one parent the exclusive right to make decisions regarding the children’s upbringing. However, some courts have ordered sole custody, and ordered the parents to collaborate on decision-making. In Ford v. Ford, a court awarded sole custody, and ordered the parents to “share equally” in decision-making for the children. The father appealed and argued that the court’s order was actually a joint custody order. The appeals court ruled against father, and held that a court could award sole custody, but order the parents to share decision-making.
In other words, Oklahoma law does not clearly define what full custody, or sole custody, is. Suffice it to say that generally, when a parent has sole custody, that parent has greater control over the child’s upbringing.
It must be understood that sole custody and joint custody have nothing to do with the amount of time that each parent spends with the child. Many of my clients have come to me, saying that they want “full custody” when what they really want is more time with the child.
For more information on the difference between sole custody and joint custody, read my earlier blog post on the topic.
What you can do to get full custody
Oklahoma law says that,
“In awarding the custody of a minor unmarried child or in appointing a general guardian for said child, the court shall consider what appears to be in the best interests of the physical and mental and moral welfare of the child.”
Thus, to get full custody, you would need to prove that full custody is in the child’s best interests. “Best interests” is a vague standard, and it is intentionally vague. The state legislature leaves wide latitude to family court judges, because the judge can examine each family, and consider what is best for the children depending on each particular family’s circumstances. There is no hard and fast rule for deciding what is in the child’s “best interests.” One state statute says that you may introduce any “relevant evidence” unless another law excludes the evidence. The statute defines “relevant evidence” as
evidence that makes the existence of a fact of consequence more probable or less probable.
To put it another way, relevant evidence is evidence that is “material” and “probative”.
Material = evidence of a fact that is “of consequence”
Probative = makes the existence of a fact of consequence more or less probable.
Thus, if you have any evidence that has a tendency to show that sole custody is in the child’s best interests, you may introduce this evidence.
Oklahoma law also says,
“There shall be neither a legal preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody.”
However, I have known some judges who strongly prefer to award parents joint custody, and will award joint custody unless one parent shows serious deficiencies.
Furthermore, another Oklahoma statute says that it is the policy of the state for both parents to have frequent and continuing contact with the children, and to encourage parents to share parenting. This statute also says that, to further this policy, a court may provide “substantially equal” access to both parents.
Some lawyers have argued that this statute favors joint custody. Depending on the judge, you may have an uphill battle if you want to try to get sole custody.
Proving that the other parent is unfit
If you can prove that the other parent is unfit, you may have a much easier chance of getting sole custody.
An Oklahoma law says,
“B. There shall be a rebuttable presumption that it is not in the best interests of the child to have custody or guardianship granted to a person who:
1. Is subject to or has been subject to the registration requirements of the Oklahoma Sex Offenders Registration Act or any similar act in any other state;
3. Is an alcohol-dependent person or a drug-dependent person as established by clear and convincing evidence and who can be expected in the near future to inflict or attempt to inflict serious bodily harm to himself or herself or another person as a result of such dependency;
4. Has been convicted of domestic abuse within the past five (5) years;
5. Is residing with a person who is or has been subject to the registration requirements of the Oklahoma Sex Offenders Registration Act or any similar act in any other state;
7. Is residing with a person convicted of domestic abuse within the past five (5) years.
C. Custody of, guardianship of, or visitation with a child shall not be granted to any person if it is established that the custody, guardianship or visitation will likely expose the child to a foreseeable risk of material harm.”
Another statute says that there is a rebuttable presumption that, if domestic violence, harassment, or stalking has occurred, it is not in the best interests of the children to live with the parent who has engaged in domestic violence, harassment, or stalking. There is also a rebuttable presumption that it is not in the best interests of the child for a parent who has committed domestic violence, harassment, or stalking to share in joint custody or shared parenting of a child.
Note the language “rebuttable presumption.” This means that if any of the above characteristics apply to the other parent, there is a “presumption” that it is not in the best interests of the child for the other parent to have custody. However, the presumption is “rebuttable,” meaning that the other parent may rebut that presumption.
The law prohibits other people from obtaining custody
The above statute says that there is a “rebuttable presumption” that certain people should not have custody. However, another law prohibits certain people from having custody altogether. This law says,
“A court shall not award custody or guardianship of a child to any person who has been convicted, whether upon a verdict or plea of guilty or upon a plea of nolo contendere, or received a suspended sentence or any probationary term, or is currently serving a sentence or any form of probation or parole in a court in any state of any of the following crimes:
1. Sexual abuse or sexual exploitation of a child, Section 843.5 of Title 21 of the Oklahoma Statutes;
2. Child endangerment, if the offense involved sexual abuse of a child, Section 852.1 of Title 21 of the Oklahoma Statutes;
3. Kidnapping, if the offense involved sexual abuse or sexual exploitation of a child, Section 741 of Title 21 of the Oklahoma Statutes;
4. Incest, Section 885 of Title 21 of the Oklahoma Statutes;
5. Forcible sodomy of a child, Section 888 of Title 21 of the Oklahoma Statutes;
6. Child stealing, if the offense involved sexual abuse or sexual exploitation, Section 891 of Title 21 of the Oklahoma Statutes;
7. Procuring minors for participation in child pornography, Section 1021.2 of Title 21 of the Oklahoma Statutes;
8. Consent to participation of minors in child pornography, Section 1021.3 of Title 21 of the Oklahoma Statutes;
9. Facilitating, encouraging, offering or soliciting sexual conduct with a minor by use of technology, Section 1040.13a of Title 21 of the Oklahoma Statutes;
10. Distributing child pornography, Section 1040.13 of Title 21 of the Oklahoma Statutes;
11. Possession, purchase or procurement of child pornography, Section 1024.2 of Title 21 of the Oklahoma Statutes;
12. Aggravated possession of child pornography, Section 1040.12a of Title 21 of the Oklahoma Statutes;
13. Procuring a child under eighteen (18) years of age for prostitution, Section 1087 of Title 21 of the Oklahoma Statutes;
14. Inducing, keeping, detaining or restraining a child under eighteen (18) years of age for prostitution, Section 1088 of Title 21 of the Oklahoma Statutes;
15. First degree rape, Section 1114 of Title 21 of the Oklahoma Statutes;
16. Lewd or indecent proposals or acts to a child under sixteen (16) years of age, Section 1123 of Title 21 of the Oklahoma Statutes; or
17. Solicitation of minors in any crime provided in subsection B of Section 1021 of Title 21 of the Oklahoma Statutes.”
Note the language, “a court shall not award custody.” This means that, if the other parent has been convicted of one of the offenses listed in the statute, the court may not grant them custody. Thus, in your case, if the other parent has one of the above convictions, you should definitely tell the judge about the conviction, and the judge should award you sole custody.
Need Help? Contact the Persaud Law Office
The Persaud Law Office has handled many custody cases. We have obtained sole custody for many clients. We can also tell you whether, under your circumstances, you can realistically expect to obtain sole custody. If you would like help with your custody case, contact us today.