As a fathers rights 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 more frequently asked custody related questions based on my perspective. This article is part two of a two part series. So, let’s get started!
Is it possible to change a custody order?
Yes. A custody order can be modified in certain circumstances, unlike property and debt division orders that are not subject to modification. The burden of proof depends on the type of custody.
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.”
Tough legal standard
As a practical matter, this is a strict standard. You have to have the right case to modify custody. Also, it is essential to note that a change in condition is between the custodial parent and child. Therefore, it is irrelevant what changes have occurred in the life of the noncustodial parent in this context. (Although changes with the noncustodial parent could be a reason to modify Joint Custody or visitation.)
A typical example is Parent 1 has a drug or some other big problem. As a result, Parent 2 is awarded custody. Parent 1 gets clean and then decides they want custody back. The problem here is the change involves the noncustodial parent, not the child. For that reason, at least by itself, that does not meet the standard to modify custody because the change involves the noncustodial parent and not the child.
Additionally, we have some protection for service members. A military deployment shall not be evidence of a permanent, material, and substantial change of circumstances for a permanent custody modification. 43 O.S. §112.7.
If we have Joint Custody, is there still child support?
Yes. Even when the parties have Joint Custody, child support is calculated according to the Oklahoma Child Support Guidelines. Therefore, each parent’s number of overnight visits will be a factor, as will the parties’ gross income. However, suppose the parents have similar incomes and equal time. In that case, it may be that the result of the support computation is zero. However, the only way to know the actual number is to run the support guidelines.
What if my spouse wants to leave the state with our child?
The moment the divorce petition is filed, the Automatic Temporary Injunction (ATI) becomes effective. The ATI states that the parties are prohibited from removing any child(ren) of the marriage out of Oklahoma. There is an exception for vacations of two (2) weeks or less in duration. It is important to note that the ATI only applies to divorce cases and not paternity cases.
If you anticipate the other parent may try to leave the state with the child, you need to consult an attorney ASAP! Remember, the protections of the ATI only take effect upon the filing of the divorce petition.
The ATI goes away once replaced by final orders. However, even after custody orders are filed, there is still protection if a parent intends to move with the child. Oklahoma has a Relocation Statute 43 O.S. § 112.3. The statute requires that if a parent wants to move more than seventy-five miles, a specific procedure must be followed. This procedure allows the other parent to object to the relocation and request a hearing. The court will then decide whether or not to allow the move.
If you receive a relocation notice, you must file an objection within the time provided. A failure to object will allow the other parent to move.
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