In a recent case decided by the Oklahoma Court of Civil Appeals, the court clarified that the standard to modify visitation is different from the standard to modify custody. Swiney v. Villanueva, 2021 OK CIV APP 37.
In this case, the Father was awarded supervised visitation at the divorce trial in 2016. Shortly after the decree was entered, Father filed a Motion to Modify requesting unsupervised visitation. After almost four years of litigation, a trial was conducted, and the court ruled against Father. The trial court found that the Father did not meet his burden of proof to modify visitation under the Gibbons standard.
Father appealed. The Court of Appeals held that the Gibbons test is well-established when the issue involved is a change of custody from one parent to the other. However, the Oklahoma Supreme Court has never required that the Gibbons test be applied in a case involving only a change in the visitation schedule.
Accordingly, the case was remanded. with instructions for the trial court to conduct a hearing and consider the child’s best interests and determine whether the Father has corrected the conditions that led to the imposition of his supervised visitation schedule.
What Does This Mean?
If one parent has custody, the standard to modify is the Gibbons test. The parent requesting a change in custody must prove “(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.” As a practical matter, this is a very tough legal standard.
The authority for the trial court to modify child custody or visitation orders is found in 43 O.S. § 112. The significance of this case is that the legal standard to modify visitation is lower than the standard to modify custody, making visitation significantly easier to modify than custody.