In a recent Oklahoma case, the Court of Civil Appeals clarified that the standard to modify visitation differs from custody. Additionally, Sweeney v. Villanueva, 2021 OK CIV APP 37, addresses this Standard to Modify Visitation Orders in Oklahoma.
Visitation Modifications
In this case, the Father was awarded supervised visitation at the divorce trial in 2016. Soon after the decree, Father filed a Motion to Modify seeking unsupervised visitation. After nearly four years of litigation, a trial was held, 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. Standard to Modify Visitation Orders in Oklahoma
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?
Standard to Modify Visitation Orders in Oklahoma governs this; when one parent has custody, the Gibbons test applies.
Additionally, the parent requesting a change in custody must prove two things.
First, since the order was made, there is a permanent, substantial, and material change in conditions. Second, the change means the child would be better off temporally, mentally, and morally if the modification is 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.
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