As a divorce lawyer in Oklahoma, I am asked many questions concerning divorce, custody, and various other family law topics. I have assembled a collection of some of the most frequently asked custody related questions. This article is part one of a two part series. So, let’s get started!
What is the difference between Custody and Joint Custody?
When we talk about custody, we are talking about decision-making. Joint Custody requires the parents to discuss and jointly decide issues concerning the child. One parent will be designated the primary and final decision-maker. If, after discussion, the parents cannot agree, the primary has the authority to make the decision.
When custody is awarded to one parent, the custodial parent makes the parenting decisions. There is no duty to first discuss with the other parent. Oklahoma law does not favor one type of custody over the other. Custody is awarded based on what the court believes to be in the child’s best interest. Every situation depends on the specific facts of that case.
It is important to note that visitation is separate from custody. Visitation, or time split, has to do with the amount of time each parent spends with the child while custody deals with decision making.
Am I entitled to Joint Custody?
There is a common misconception that every parent is entitled to Joint Custody. The reality is that the statutes state that “[t]here shall be neither a legal preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody.” 43 O.S. § 112.
One way to look at this is that Joint Custody is a reward for parents willing to work together and co-parent their child. If one or both parents cannot or will not do this, it is probably not a Joint Custody case. Most likely, the court will award custody to one parent, and that will be based on the child’s best interest.
With that said, Oklahoma does have a Policy for Equal Access to Minor Children found in 43 O.S. §110.1. There are significant changes to this statute that become effective November 1, 2021.
Under the old version, the statute only referenced temporary orders. There was no mention of final orders. The new version of the law has been expanded to include both temporary orders and final orders. While this is a step in the right direction, I don’t think it goes nearly far enough.
Additionally, the same rules still apply. Equal access is not automatic. The court must still find that such an arrangement is in the child’s best interest and that the parents can co-parent. For a more detailed discussion of this issue, please review this blog post.
How can I increase my chances for Joint Custody?
If you seek Joint Custody, you must convince the court that the parties can work together and co-parent. Therefore, if you want Joint Custody, your primary mission should be to establish evidence that you can co-parent.
Dad wants to do visitation exchanges at 8:00 p.m. Mom wants to exchange at 6:00 p.m.
Mom wants to sign the kids up for ping pong, and Dad wants to sign the kids up for soccer.
Dad wants to enroll the child in virtual school, and Mom wants the child to attend a brick-and-mortar school.
What should you do? Simple, you talk about it and figure it out. Neither of you may be happy with the result, but you figured it out. Whether the result is 8:00 p.m. or 6:00 p.m., ping pong or soccer, or whatever else, that is not important. What is important is that you talked about it and worked it out. As a result, you have now created evidence you can work together and co-parent.
In my experience, Joint Custody is awarded most often when the parties have agreed to Joint Custody. With that said, in some cases, the court may award Joint Custody even when the parties do not agree. However, I would consider this the exception and not the rule. For example, if the other parent is fighting against Joint Custody but you have created enough examples and evidence sufficient to convince the court that you have been co-parenting, you have given yourself a chance to get this done.
One final note, if you get joint custody, don’t screw it up by arguing over stupid stuff. If an issue is not of such global importance that it will irreparably impact your future quality of life, it probably is not worth arguing over.
If the parents were never married, who has custody?
When a child is born to parents who are not married, Oklahoma law recognizes the Mother as the custodial parent. The legal presumption does not change when the Father is on the child’s birth certificate. However, a court order can change this.
The good news is Fathers can establish rights and obtain a court order. However, it is up to Fathers to make this happen. Every case depends upon individual facts. When there is an existing relationship, the starting point for visitation is different from that of no existing bond. In the right circumstances, Fathers can get custody or joint custody.
Whatever the starting point, the court is tasked with acting in the child’s best interest. A child deserves two involved parents. The courts will support this. The key is that the Father must take the proper legal steps to make this happen.
What is a Guardian Ad Litem?
The Guardian Ad Litem is an attorney appointed by the court to represent the best interest of children. They do this by investigating and then writing a report for the Judge. The GAL will meet with both parents, speak with any witnesses provided by the parents, talk to teachers, coaches, counselors, and other persons having information about the children. They will also review school records, medical records, counseling records, and additional information.
Aside from the Judge, the GAL has the most influence on the outcome of your case. The GAL does not make decisions like a Judge. Still, the GAL will investigate and recommend custody and visitation to the court. The court will generally give an incredibly significant amount of weight to the GAL recommendations. Therefore, the outcome of your case will depend largely upon the recommendations of the GAL.
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