Family Law

How do Judges Decide Child Custody in Oklahoma

By Melissa Heinig, Attorney
It's best if divorcing parents can work together to create custody and visitation arrangements for their family. If that fails, a judge will have to make custody decisions.

All parents desire frequent and continuing contact with their children during and after a divorce and custody is often the most difficult and emotional challenges during that time. Parents should try and work together to decide the best arrangements for their family. If they can’t agree, a judge will decide these issues based on the child’s best interests.

What Is Custody?

Legal Custody:

Parents who have legal custody have the right to make decisions regarding the child’s education, health, and general welfare, including:

  • residence
  • religion
  • education, and
  • major medical decisions, like surgery or braces.

Courts may award sole legal custody (to one parent) or shared legal custody (to both parents). Parents that share legal custody will work together when they need to make decisions on major issues that impact the child’s well-being. If parents can’t agree—despite good-faith efforts—they will need to ask the court for help deciding these issues.

If the court awards one parent legal custody, that parent can make decisions without consulting with the other parent. It’s important to understand that an award of sole legal custody is rare and generally only happens in cases where one parent is absent, abusive, or neglectful.

Physical Custody

Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or shared physical custody.

If a judge gives one parent sole physical custody, it means that the child will primarily reside with that parent, who will be designated as the custodial parent. The custodial parent will make most of the day-to-day decisions about the child, and the noncustodial parent will enjoy time with the child during parenting time.

In some (but not all) cases, the court may find that joint physical custody is in the child’s best interest. Typically, when parents share joint physical custody, the child will reside with each parent equally throughout the year, and each parent will be responsible for the child’s daily needs during their time with the child.

What Is Visitation?

If a court awards one parent sole physical custody, the next step is to determine a visitation schedule for the noncustodial parent and the child. It’s best for families to work together to create a schedule that will work best for everyone, especially the child. Parents have more control when they decide on a visitation schedule, as opposed to when the court imposes a schedule for them. When drafting a calendar for your family, some of the details you should consider include:

  • holidays
  • school breaks
  • mid-week and weekend visitation
  • work schedules
  • pick-up and drop-off locations and responsibilities, and
  • who will pay for transportation costs.

In some families, unsupervised visitation isn’t appropriate. If your family has experienced domestic violence, drug or alcohol abuse, or neglect by either parent, the court may order supervised visitation. In these situations, the noncustodial parent and child will spend their time together at a neutral location, such as a county building, while another adult observes the visits to make sure the child is safe.

How Does the Court Determine Custody?

Oklahoma doesn’t have an automatic preference for either parent based on their gender, so the court gives each parent equal consideration during custody trials. These cases take time, but if parents need guidance before a final court order, the court may provide a temporary order that gives parents joint custody. If a judge issues a temporary order, it’s important for parents to follow all the conditions for custody and visitation as if it’s a final order.

If either parent wants a judge to consider a final order for joint custody, that parent (or both parents together) must submit a parenting plan that explains how the parents will exercise joint care, custody, and control of their child. A judge can accept or reject a parent’s plan or can ask the parent to make changes before it’s approved. This plan must include:

  • where the child will reside
  • who will pay child support
  • which parent will provide the child with medical and dental care
  • where the child will attend school, and
  • a schedule of how the child and each parent will exercise visitation.

If both parents request sole custody, the court must consider what is best for the child’s physical, mental, and moral well-being. Unlike other states, Oklahoma doesn’t have a specific set of best interest factors for a judge to review, but a judge may consider:

  • what the parents want
  • the relationship between each parent and child
  • the child’s relationship with siblings and extended family
  • the child’s community, school, and religious record
  • each parent’s mental and physical health
  • any history of child, drug, or alcohol abuse
  • each parent’s past criminal record
  • which parent has been primarily involved in taking the child to school, doctor visits, and extracurricular activities
  • which parent can provide a safe and stable home environment for the child, and
  • the child’s opinion, if the child is old enough and mature enough to form an opinion.

During the custody hearing, the parents will have the opportunity to present evidence to show why a judge should favor them in each factor listed above. An example of evidence commonly used in custody hearings may include:

  • social media posts
  • emails and text messages
  • phone records
  • witnesses, and
  • school records.

If a judge awards joint custody, and parents have a dispute in the future, the court will appoint an arbitrator to resolve the dispute. An arbitrator is a neutral third-party who is knowledgeable in domestic relations law and family counseling. If either parent refuses to participate in arbitration, the court may terminate any joint custody order.

Once the court creates a parenting plan, both parents must follow it. If either parent wants to change the arrangement later, that parent will need to prove to a judge there has been a change in circumstances and that it is in the child’s best interest to modify custody or visitation.

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