In any family law dispute or divorce, questions most always arise when issues of child custody, visitation, and child support surface. This is not surprising, though, as everyone, including the court, is expected to act in a way that reflects a child’s best interests during divorce. It is only natural for there to be plenty of questions and contention about what to do.
Getting a better understanding of the issues ahead of time can help keep everything in perspective and minimize conflicts. In this first blog entry of three, our Oklahoma City family law attorneys focus on child custody and some of the questions that might have crossed your mind already as a divorcing parent.
Deciding Custody Based On Specific & General Factors
Custody and visitation are mutually exclusive items and do not necessarily go hand-in-hand. Custody is about decision making authority as it relates to the child, while visitation is about parenting time. It is important to understand that just because a parent has the child for the majority of the time does not necessarily mean that that parent has exclusive decision-making authority. The primary question in your case is who gets custody and how is it determined?
While Oklahoma statute 43 O.S. § 109(A) requires the court to consider the child’s physical, mental, and moral welfare when determining custody, there are a plethora of cases indicating specific factors the court should consider in looking at the best interest of the child. Taking these cases in mind, and the numerous Oklahoma statutes as a whole, the following factors give a general guideline for what a court considers when awarding custody.
The factors considered by the court to assign custody include:
- The preference of the child’s parent or parents.
- The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent.
- The interactions and interrelationship of the child with their parent or parents, siblings, and any other person who may significantly affect the child’s best interest, as well as the stability of the home.
- The child’s adjustment to their home, school, and community.
- The mental and physical health of the child and all proposed custodians.
- Which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent.
- Whether there is evidence of past child abuse, domestic abuse, stalking, or harassment.
Considering a Child’s Preference for Custody
The preference of the child may also be considered in certain child custody cases. 43 O.S. § 113 states that if the child is 12 years or older then there is a rebuttable presumption that they are old enough to articulate a clear and intelligent preference, but a court must look at whether the best interest of the child is served by allowing them to express a preference. The court only has to consider the preference, and it does not have to adopt the preference as the order of the court.
The court may also appoint a Guardian ad litem, whose sole purpose is to advocate for the best interest of the child and investigate matters concerning their relationship with their parents. What is discussed between the child and the Guardian ad litem is usually confidential in order to protect the child’s wishes.
Various Forms of Custody
Custody can be awarded as either joint, joint with a designation of primary, or sole. Joint custody means both parents have equal rights and responsibilities regarding major decisions concerning the child, including decisions as to the child’s education, healthcare, religious upbringing, and so forth. Courts also have the option to grant one parent primary custody, which includes final decision-making authority in the event the parents cannot agree. Alternatively, sole custody is awarded when it is shown the parents cannot communicate, live far apart, or have been operating under a sole custody arrangement prior to the entry of an order by the court.
Can Custody Orders Be Modified in Oklahoma?
Once custody has been awarded, it is extremely difficult to have it modified. The test of when a custody order may be modified is set out in the Oklahoma Supreme Court case Gibbons v. Gibbons, 1896 OK 77, 442 P.2d 482 which states: “[T]he burden of proof is upon the parent asking that custody be changed from the other parent to make it appear: (a) that, since the making of the order sought to be modified, there has been a permanent, substantial and material change of conditions which directly affect the best interests of the minor child, and (b) that, as a result of such change in conditions, the minor child would be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered.” (Gibbons v. Gibbons, 1896 OK 77, 442 P.2d 482, 485 (emphasis added.))
Generally speaking, there must be some significant change in the circumstances surrounding the child and affecting both parents, and due to that change, the child would be “substantially” better off for a modification to take place. The Oklahoma courts are usually opposed to modifying a custody plan away from joint but can under 43 O.S. § 109, when it is in the best interest of the child.
Steadfast Child Custody Attorneys in Oklahoma City
It is notoriously difficult to modify custody after the fact, yet sometimes it is necessary. Our Oklahoma City custody lawyers from Smith Simmons, PLLC zealously advocate for our clients to secure the custody arrangement they deserve. To help ensure the best care for our clients and their children, we will not agree to grant another party sole custody without a client signing a written letter stating they have been advised of our objection, with a few exceptions.
Discover more about our services and your custody options today by contacting our firm now.