FAQ

Every separated or divorced parent of a minor child should keep a simple calendar and keep notes about when they have the child and when the other parent has the minor child. Each parent should especially note when there is a court-ordered schedule, and the other parent routinely does not exercise the time they could have under the schedule.

If there is a court order for custody and visitation and a parent frequently declines to exercise their time with a child, their failure to exercise their time with a child could be a reason to modify the custody and visitation schedule. Whether there is a court order or not, when parents are separated, it is a good idea to make a record of the time that each parent has each minor child. One factor that can impact child support orders is the number of overnights each parent has. When a non-custodial or non-primary parent has 121 or more overnights over a year, they can get a discount on their child support obligation called a “parenting time adjustment.” 

In a divorce or child custody case, sometimes a parent will try to get a schedule of at least 121 overnights with a child just so that the parent can get the parenting time adjustment child support discount. In those cases, an accurate calendar or record showing how much time that parent actually exercises can be good evidence either for or against the proposed schedule. There is a child support law that says when a parent gets the parenting time adjustment discount but does not exercise enough time with the child to have the discount, the other parent can go back to court and ask for the full amount of child support that should have been paid all along without the discount. In those cases, accurate records showing which parent had the child are valuable evidence proving that the child support obligor did not spend the time necessary to receive the child support reduction.

Keeping track of parenting time and significant events is relatively simple. All it takes is a small calendar or daily planner. A mobile phone app that allows you to keep notes works, too. When there is a noteworthy event related to the other parent or the child, make a simple note about what happened. Include enough information about what happened so that if you are looking at it months or even years later, you will be able to remember the important details. If the notes are made very close to when the event occurred, such as the same day or the next day, there is a special rule of evidence that allows such notes to be read into evidence in court if necessary. 

The law treats records and notes made at the time events happened as more reliable and trustworthy instead of sitting down and trying to think back and remember events that weren’t recorded when they happened. 

If you use an app to keep your notes, make sure that your electronic devices are routinely backed up so that you can access the information when needed. If you use a paper calendar, try to use a calendar that can easily be copied or scanned. Do not keep notes about your private life on the same calendar, and do not make derogatory notes or comments about the other parent. Keep in mind that at some unknown point in the future, complete strangers such as lawyers, judges, and even child custody experts could be looking at your notes and deciding if the notes are reliable and accurate.

Yes. A father can obtain custody, and a mother can lose custody, even if both parents are fit parents. There are many myths and misconceptions about child custody. Here is a short list:

• Mothers will have an advantage in a custody case, especially if the child is a toddler or younger

• Mothers cannot lose custody unless they are found to be “unfit”

• Fathers will likely have alternating weekends or some form of parenting time (visitation), that is less than the mother’s time

• Mothers will not have to pay child support

• Only the noncustodial parent will have to pay child support – the custodial parent cannot be ordered to pay child support

The law presumes that each parent is fit. “Fitness” in the child custody context generally has more to do with that individual parent, and that parent’s time and relationship with the child, than it has to do with child custody between parents. In other words, an unfit parent is someone who poses some sort of safety risk to their child, resulting in severe restrictions and limitations on their contact with a child. Since it is presumed that each parent is a fit parent, neither parent has an advantage over the other parent simply because they are fit.

It is unconstitutional for a judge to prioritize custody to one parent over another based on that parent’s gender. There is still a perception that some judges will lean towards the mother having more time with younger children, especially if they are breastfeeding, but that is changing. Oklahoma law prioritizes shared parenting, so many judges are encouraging the mother to pump breast milk for the child’s time with the father, but breastfeeding is not being used as a reason to limit the father’s parenting time.

Unless there is a question of parental fitness for one or both parents, child custody contests are comparative and situational. In other words, the child’s “best interests” will be based on what each parent has to offer the child, and how each parent treats the other parent. The standards of the case will vary from case to case. In one case, a parent may obtain custody because they live closer to and have access to superior schools and hospitals than the other parent. In another case, a parent who lives by the school and hospital may lose custody because they work nights and weekends and are unavailable.

When all things are equal, the judge is supposed to assess which parent is most likely to encourage a relationship between the child and the other parent. One way this assessment is made is by viewing which parent follows the court’s orders (and which parent does not). Oklahoma’s appellate courts have upheld changes in custody that were made due to one parent not following court orders and interfering with the other parent’s time and relationship with the child.

Child support has more to do with each parent’s respective income and parenting time. When parents have equal time, the parent with the highest income is the child support obligor, even if that parent has custody. It is possible for a parent having demonstrably more time with a child than the other parent to still be the child support obligor (payor), depending on each parent’s income.

Neither parent can afford to take anything for granted. In a child custody dispute, each parent has to work hard to make their best presentation to the court about why they should have maximum parenting time.

A parenting coordinator is an impartial third party appointed by the court to assist parents in resolving issues related to parenting and other family issues. A parenting coordinator must be a family law attorney or a licensed mental health professional. Parents may agree to the appointment of a parenting coordinator, or the judge may appoint a parenting coordinator even if the parents don’t want one, provided that the judge makes a finding that the situation between the parents is “high conflict.” A parenting coordinator is appointed by a special order that sets out the coordinator’s roles, responsibilities, and scope of work.

Once a parenting coordinator is appointed, either parent may bring certain parenting issues and disputes to the parenting coordinator. In most cases, the dispute is initially presented by email, then the parenting coordinator may request input from the other parent and even call a Zoom or in-person meeting. The parenting coordinator typically hears each parent’s side of each issue. The parenting coordinator may interview the children if necessary, although this is rare. After hearing each side, the parenting coordinator issues a written report with a recommendation for resolution of the disputed issue. The report is often in the form of a letter that is mailed to the court for filing. The written report becomes a court order within 10 days unless one of the parents files an objection to the report. Unless the parenting coordinator made a serious, obvious mistake, an objection to a parenting coordinator report has a low chance of success, as parenting coordinators are a great asset to judges. The written reports can result in mini-adjustments and additions to the court orders, but they cannot make long-term changes to parenting time.

Parenting coordinators can be excellent resources when communication between parents is difficult, when one parent is unreasonable or a bully, when time-sensitive matters need prompt attention, or when other issues arise that are important but would not be enough to initiate litigation. The best results from parenting coordinators happen when the parent who needs assistance treats the parenting coordinator like a judge. This means identifying the issues, trying to resolve them before taking them to the parenting coordinator, and making the issues as simple as possible. Generally, the fewer issues that the parenting coordinator has to deal with in any particular session, the better the parenting coordinator’s decision and report will be.

Joint custody and sole custody are legal decision-making concepts. Parents with joint legal custody must make child-related decisions together, or jointly. When a parent has sole custody, that parent is permitted to make the final call, or decision, on major decisions affecting the child.

Child-related matters include:

• Educational choices

• Religious practices

• Elective medical decisions

• Forms of discipline

• Travel

• Selection of extracurricular activities

In a sense, joint custody and sole custody have little to do with visitation or parenting time. Parents may have equal time with their child, yet one may be designated as the “sole custodian” to make the final call for major child-related decisions. Or, one parent may have the child most of the time, yet both parents may have joint custody and still be expected to co-parent and share decision-making responsibility.

However, child-related matters related to custody generally concern “major” decisions affecting the well-being of the child. Legal decision-making authority may matter less for parenting choices that have less long-term impact, such as clothing and style, diet, and daily activities. Viewed this way, there is a very loose relationship between a parent’s decision-making authority and the time that the parent has with the child. A non-custodial parent may still decide things during visitation such as what food the child eats, what they do together, other children that the child can play and socialize with, and bedtime. The more time a parent has with a child, the more that parent will be a decisionmaker for the child, even if that parent is the “non-custodial” parent, due to the nature of day-to-day decisions that must be made when parenting a child. Both joint custodians and non-custodians will be expected to take their child on time to the child’s school, appointments, practices and games, regardless of who and how the appointment was scheduled.

In Oklahoma, there are four types of custodial arrangements:

• Joint legal custody. This is the most common scenario. Both parents have equal decision-making rights, and neither parent has superior decision-making authority, so they have to agree on final major decisions, or they will need to get help making the decision from someone like a parenting coordinator, mediator or judge.

• Sole legal custody. The custodial parent has the legal authority to make the final call for major child-related decisions.

• Joint custody with the final say. Sometimes, the court order will include a joint custody plan and contain all the joint custody language and orders, with one extra provision providing one parent ultimate decision-making authority in the event of a dispute. Some argue that this is really sole custody in disguise, but it is not.

• Parallel parenting. Parallel parenting is an unusual, uncommon and disfavored approach to child custody. It is sometimes implemented in extremely dysfunctional, high-conflict cases. In parallel parenting, the parents may not communicate or engage with one another in any meaningful way, and each parent is responsible for making decisions about their child during their respective parenting time.

Oklahoma law provides that each parent is entitled to access their child’s academic and health records, regardless of custodial status. Unfortunately, third-party providers such as school administrators, physicians and counselors are all affected by the myths and misinformation about what custody means. A joint custodian may experience less resistance from third parties than a non-custodial parent.

Noncustodial parents have no rights

• False. Custodial status does not necessarily impact parenting time or visitation rights. A designation of “non-custodial parent” does not mean that you have lost parenting rights. A non-custodial parent has the legal right to access their child’s records, including records from school, doctors, and child care providers. Generally, if the custodial parent dies, the noncustodial parent becomes the custodial parent.

The custodial parent gets to make every single decision about the child

• False. The custodial parent is the final decision-maker for major decisions affecting the well-being of the child. The noncustodial parent may still make ordinary day-to-day decisions for the child during visitation. Even for major decisions, the custodial parent may be required to confer with the non-custodial parent before making the final call.

The custodial parent gets to decide whether the non-custodial parent gets visitation

• False. The custodial parent has a legal duty to facilitate and foster a relationship between the child and the non-custodial parent.

The non-custodial parent will have to pay child support

• Possibly. Child support is mostly a function of the parents’ respective gross incomes and their parenting time. There are frequent scenarios where the custodial parent is required to pay child support to the non-custodial parent.

The custodial parent will always get to claim the child for tax purposes

• Possibly. However, a judge can re-allocate this benefit between the parents, and the IRS will recognize the court order. The custodial parent may be required to fill out IRS Form 8332.

If one parent has sole custody, then the parents do not have to communicate or co-parent with one another.

• False. Each parent is entitled to child-related information, especially from school and medical care providers. The custodial parent has a duty to encourage a relationship between the child and the non-custodial parent.

The custodial parent will be the only one who can take a vacation with the child outside of the United States.

• False. The custodial parent will have the authority to obtain a passport for the child. However, the court order can permit the non-custodial parent to access the passport for travel.

The custodial parent will be able to relocate from Oklahoma if they desire.

• False. The law concerning relocation has several factors. Custodial status is just one factor for relocation. The custodial parent will have a slight advantage in the event of a relocation request, but the relocation will not be automatically approved simply due to custody.

The noncustodial parent will only have alternating weekend visitation with the child

• False. Custody is distinct from time. Oklahoma law creates a presumption of “shared parenting,” meaning equal time or substantially equal time, regardless of joint custody or sole custody.

Judges have a great deal of discretion when assigning custody. Judges have the ability to award joint legal custody but to designate one parent as the final decision-maker for disputes over one or more child-related matters. There is presently no legal preference or presumption in favor of or against an award of joint legal custody or sole legal custody. It is improper for a judge to award a parent joint or sole custody based solely on that parent’s gender. Even though it is unconstitutional to favor one gender over another when determining custody, it is no secret that some judges still have a default preference for placing children with the mother, especially when the children are younger.

To share joint custody, the parents generally must demonstrate an ability to communicate and co-parent. Sometimes, in divorce, a parent will try to obstruct communication and co-parenting so the other parent cannot make a case for joint custody. There are cases where this strategy backfires, as judges are required to assess which parent will encourage and facilitate a relationship between the child and the other parent.

There are some extreme cases where both parents have behaved so badly in the eyes of the judge that the judge will award both parents joint custody rather than give one of the parents sole custody. As joint custody requires parents to agree on major decisions, situations like this often lead to the appointment of a parenting coordinator or other expert, and many times, these cases end up back in court.

Being a noncustodial parent does not mean that there has been a loss of parental rights. Being a noncustodial parent does not mean that the noncustodial parent is “unfit.” The noncustodial parent may still have liberal visitation, or parenting time, access to all information about the child’s development and wellbeing, as well as the ability to attend the child’s events and activities.

Even when one parent is awarded sole custody, the noncustodial parent has the right to access all child-related information, including medical and academic records. If one parent has sole custody and dies or becomes incapacitated, the noncustodial parent automatically has custodial rights, unless there is a question about parental fitness.

On rare occasions, third-party providers such as teachers and pediatricians can be reluctant to share information with a non-custodial parent, even though the law provides for information access, especially if the custodial parent has misled the provider about what custody means. In those circumstances, sometimes the issue can be cleared up with a copy of your court order and a letter from your attorney.

When the parents of a child were never married, Oklahoma law places sole legal and physical custody of the child automatically with the biological mother, even if the father signed an acknowledgment of paternity, and even if the father is named on the child’s birth certificate.

The father’s only right to the child is his duty to pay child support.

In these circumstances, the father would typically benefit significantly by initiating a lawsuit to obtain an order to judicially establish his parental rights, including his custodial rights and rights to visitation.

The father will not have legal rights, and the mother retains all custodial rights and control unless the father files and obtains a judicial order that expressly determines that he is the father and that he has parental rights of custody and visitation.

Same-sex couples have similar rights and obligations.

Oklahoma law provides for a two-year “lookback” in these cases for child support. When an individual is determined to be the father, the judge is required to order the father to pay past-due child support for the two years prior to the filing of the petition initiating the case. If the parents lived together for part of the 2 year lookback period, the father may not have to pay child support for the time that they lived together. Also, if the father paid child support during that two-year lookback period, he may get credit for those payments.

Guardianship may be an option for minor children who do not have proper parental care. Guardianships are usually necessary in unfortunate circumstances, including the death or incarceration of both parents or abandonment of the children by the parents. To obtain guardianship of a minor child in a situation where the parent does not agree that he or she is unfit, the potential guardian must prove that the parent is “unfit.” The United States and Oklahoma Constitution provide strong protections for parental rights, so a person seeking guardianship of a minor over the objection of the child’s parents must have strong evidence that the parents are unfit to have custody and care of children. This often means that the parent is guilty of abuse or neglect. Prospective guardians must pass stringent, thorough background checks and investigations to demonstrate that they are qualified to have guardianship of children. While many guardianships are resolved by agreement, in many circumstances, they are not agreed, so each involved individual will need strong legal counsel to protect their rights and the interests of the children.

Because so many guardianships concern parental fitness, many times there are other legal considerations and rights at issue. For example, if family members do not act quickly enough to intervene for their relative children, the state may remove the children and place them in foster care. In other cases, guardianship can be a predicate to the establishment of grandparent visitation rights. Guardians generally have the responsibility for managing the child’s property and income, such as Social Security survivors or disability benefits. Individuals involved in or associated with guardianship cases will benefit from the analysis and advice of an experienced, knowledgeable family lawyer.

Having the ability to claim a “qualifying child” may give a taxpayer several tax benefits, such as head of household filing status, the exemption for a dependent, the child tax credit, the child and dependent care credit and the earned income tax credit. The IRS has specific tests to determine if a child is a qualifying child. Claiming a child for tax purposes can have significant value. The 2017 Tax Cuts and Jobs Act doubled the maximum child tax credit from $1,000 to $2,000 per child under age 17 and added a $500 nonrefundable credit for children ineligible for the $2,000 credit.

A child may be a dependent of only one taxpayer for a given tax year. In other words, divorced parents may not claim the same child for the same tax year.

Generally, the child will be treated as the qualifying child of the custodial parent.

Parents can agree, or family court judges can order, that the noncustodial parent may claim the child as a dependent and as a qualifying child for the child tax credit. Oklahoma appellate courts have held over and over again that the right to claim a child as a dependent for tax purposes is a modifiable child support issue and that judges have jurisdiction to allocate the federal income tax dependency exemption for children. A judge can order a custodial parent to sign IRS Form 8332 to permit the noncustodial parent to claim a child for a given tax year.

However, even in those circumstances, IRS rules will not permit the noncustodial parent to claim head of household filing status, the earned income credit, the credit for child and dependent care expenses, the exclusion for dependent care benefits, or the health coverage tax credit.

Here is a reason why claiming a child is a child support issue: under tax laws, child support is not taxed as income, and it is not a deductible expense for the child support obligor. If the parent who receives child support also gets to claim the child every year, that parent effectively receives a “windfall” by having all of the tax benefits related to the child (receiving both non-taxable child support and the child dependency exemption). So in both joint custody and sole custody cases, even where the child support obligor has limited visitation, courts typically allocate the dependency exemption on an alternating basis so that at least every other year, the person paying child support gets at least part of the tax benefit for the child they are supporting.

There is an exception: when the child support obligor is seriously behind on child support or does not pay altogether, that parent may not be permitted to claim the child for income tax purposes. It would not be fair to allow a nonpayer to claim a child that they are not supporting when the other parent has had to go for months without any child support, and it would not be fair for a nonpayer to fail to pay support then get a tax refund from the child they were not supporting, even if the tax refund goes toward child support. In many cases, courts require the noncustodial parent to be current on child support by the end of the tax year, or the noncustodial parent will lose the ability to claim the child for that tax year.

Child support and visitation are not equivalents. A noncustodial parent who pays all their child support and is being denied visitation cannot expect the custodial parent to receive the scrutiny and criticism that the noncustodial parent would receive if they did not pay child support. Being timely and current on child support is viewed as a minimum standard, and a parent who pays on time may not receive special credit or even acknowledgment for it.

All child-related matters are controlled by a concept called equity. Here is the rule you need to know about equity:

He who seeks equity must do equity and come into court with clean hands.

This means you will have a hard time asking for anything and getting any kind of good result if you have not done what you were supposed to do.

However, if there is no court order, voluntary child support payments will look good for you, especially as opposed to “I’m not paying until there’s an order.” Every parent has a legal duty to financially support their minor children, even if there is no child support calculation. If there is no court order and the other parent is denying access to a child without justification, you will be able to point out that despite their obstinance, you continue to pay child support because you are a responsible parent. If there is a court order and the other side is interfering with your visitation or parenting time, you will be better served to continue paying your child support rather than taking the position, “I’m not paying until I get to see my kid.” If you refuse to pay because the other side is violating the order, you will both be viewed as guilty of violating court orders, even if the other side violated the order first.

If you are ordered to pay child support and your child custody situation needs to be changed, you should prioritize making your child support current. Otherwise, you risk spending a great deal of time and money only to lose the case, and for your child to not get the help it needs, because you allowed the judge to be distracted by your nonpayment.

Yes. In many child custody cases, a judge may consider a child’s preference as a factor in its decision. The law says that at age 12, a child is of sufficient age to form an intelligent preference about custody and visitation. Children younger than 12 may also state a preference if the circumstances show that the child is intelligent and has good reasons for their preference.

No matter the age of the child, many courts view child preference testimony with skepticism. A child may be subject to manipulation, especially if one parent has had the child isolated from the other parent for a significant period of time or if one parent has substantial financial resources and can promise the child a reward for stating a specific preference. Even if no one has tried to influence a child, the child may feel an extraordinary, inappropriate amount of pressure when asked to “choose” a parent. Some judges are less comfortable than other judges with the idea of bringing a child into their office for an interview, so child preference interviews take place in several non-exclusive formats:

• The parents may agree on what the child’s preference is, even if they do not agree about what is best for the child (in other words, a parent can claim that despite a child’s preference, the child’s best interests would be served by an alternative arrangement)

• The child’s preference may come through the child’s counselor

• The child preference may come through a court-appointed attorney for the child (different from a guardian ad litem)

• The child’s preference may come through a court-appointed guardian ad litem (different from an attorney for the child)

• The child may state a preference directly to the judge

A child’s preference does not mean that the child will run the show. The judge has to consider the preference in light of all the other circumstances of the situation. If your child has a strong preference, you cannot take anything for granted, and you will need to prepare your evidence for your custody case as if the child may not be interviewed at all.

Child Support and Child Custody are Legally Distinct From One Another

Okla. Stat. tit. 43 § 111.1(B) says,

B. 1. Except for good cause shown, when a noncustodial parent who is ordered to pay child support and who is awarded visitation rights fails to pay child support, the custodial parent shall not refuse to honor the visitation rights of the noncustodial parent.

2. When a custodial parent refuses to honor the visitation rights of the noncustodial parent, the noncustodial parent shall not fail to pay any ordered child support or alimony.

If that’s not clear enough, in 1983, the Oklahoma Supreme Court ruled,

The welfare of the child is paramount, and the duty of a non-custodial parent to support his or her child is contingent upon the needs of the children. It is not dependent upon the opportunity of the parents to exercise visitation privileges.

The duties of support and visitation are not interdependent and should be separately enforced.

Entitlement to child support is not contingent upon visitation rights.

This was in the case of Hester v. Hester, 1983 OK 50, 663 P.2d 727.

So, we are told that “legal” custody and visitation are separate from child support.

In Some Ways, Child Support and Child Custody are Not Very Distinct

However, as a practical matter, if a parent is behind on child support, that parent should expect extra scrutiny and skepticism from the judge if the parent who owes child support is in court for any reason. Many parents know that child support is separate from visitation, so they expect to be able to go to court to ask for changes to visitation or custody and have a level playing field.

They won’t.

Okla. Stat. tit. 43 § 112(G) says,

G. In any case in which a child support order or custody order or both is entered, enforced or modified, the court may make a determination of the arrearages of child support.

This means even if neither side really brings up the issue of child support before trial, if the parent who was ordered to pay hasn’t been paying, you can expect it to be brought up. The reality on the ground is that judges are very critical of parents who are not paying their court-ordered child support. By not paying child support, the nonpaying parent effectively hands the other parent a hammer: a powerful, blunt weapon that they can use to attack any claims for visitation or custody made by the nonpaying parent. Some examples:

The nonpaying parent says, “Judge, they’re not taking the child to the doctor as needed. I am available and will take the child if given the opportunity.”

The other parent: “It would be easier to make appointments if we had the child support we need to make ends meet!”

The nonpaying parent says, “Judge, the child is making statements that indicate that the other parent is talking bad about me.”

The other parent: “Judge, he’s not paying child support. Life in our home is extra difficult as a result.”

Child support delinquency will be treated as a complete defense by the other parent, and the judge will likely be very critical of any issues raised by the parent who is behind on child support.

Times get tough and people get behind, but if you have custody and visitation issues, you cannot afford to get behind on child support. You cannot imagine the additional scrutiny you will go through. If you are behind on child support and go to court about an issue related to custody or visitation, you can expect to be asked about your hobbies and lifestyle in the most invasive, intrusive ways possible.

If you’re behind on child support yet you frequent casinos, use tobacco, vape, travel, carry an expensive cell phone, play video games, eat at restaurants, drink at bars, donate to a church, hunt, fish, drive a nice car, or buy new tires for your car, your credibility will be absolutely destroyed in court. If you are behind on child support, you cannot afford any indulgence, any luxury, or any extravagant expense. The court will be a very unpleasant experience.

Paying Child Support Can Benefit Your Custody Case

Child support and visitation are not equivalents. A noncustodial parent who pays all their child support and is being denied visitation cannot expect the custodial parent to receive the scrutiny and criticism that the noncustodial parent would receive if they did not pay child support. Being timely and current on child support is viewed as a minimum standard, and a parent who pays on time may not receive special credit or even acknowledgment for it.

All child-related matters are controlled by a concept called equity. Here is the rule you need to know about equity:

He who seeks equity must do equity and come into court with clean hands.

This means you will have a hard time asking for anything and getting any kind of good result if you have not done what you were supposed to do.

However, if there is no court order, voluntary child support payments will look good for you, especially as opposed to “I’m not paying until there’s an order.” Every parent has a legal duty to financially support their minor children, even if there is no child support calculation. If there is no court order and the other parent is denying access to a child without justification, you will be able to point out that despite their obstinance, you continue to pay child support because you are a responsible parent. If there is a court order and the other side is interfering with your visitation or parenting time, you will be better served to continue paying your child support rather than taking the position, “I’m not paying until I get to see my kid.” If you refuse to pay because the other side is violating the order, you will both be viewed as guilty of violating court orders, even if the other side violated the order first.

If you are ordered to pay child support and your child custody situation needs to be changed, you should prioritize making your child support current. Otherwise, you risk spending a great deal of time and money only to lose the case, and for your child to not get the help it needs, because you allowed the judge to be distracted by your nonpayment.

There are two answers to this question.

No, a protective order cannot be used to obtain child custody.

The protective order statute includes the following:

A protective order issued under the Protection from Domestic Abuse Act shall not in any manner affect title to real property, purport to grant to the parties a divorce or otherwise purport to determine the issues between the parties as to child custody, visitation or visitation schedules, child support or division of property or any other like relief obtainable pursuant to Title 43 of the Oklahoma Statutes, except child visitation orders may be temporarily suspended or modified to protect from threats of abuse or physical violence by the defendant or a threat to violate a custody order. Orders not affecting title may be entered for good cause found to protect an animal owned by either of the parties or any child living in the household.

In a case called Murlin v. Pearman, the Oklahoma Supreme Court held that a protective order was frivolous when it was filed to gain an advantage in a child custody case.

So the law is clear: a protective order cannot be used for child custody. Child custody cases are separate legal matters that are filed in family court.

Yes, protective orders are used every day to obtain child custody.

Every day in Oklahoma, people who are separating or breaking up file protective orders to gain leverage in their divorce or child custody case. Judges routinely award protective orders that include and cover minor children, meaning that the minor child is removed from the other parent, even when the other parent has a valid court order for custody. Parents use protective orders to obtain emergency, ex parte orders based on false or exaggerated statements even when they know that what they claim would be insufficient to obtain emergency custody of the child. Judges allow this to happen and refuse to find that it is frivolous conduct even though the Oklahoma Supreme Court said that doing so is frivolous.

If a protective order has been filed against you simply to obtain an advantage in a divorce or child custody case, you will need the assistance of an attorney to review the allegations and advise you concerning your options.

To request emergency custody of a child, the person seeking the emergency must be able to show that an emergency order is necessary because the child is in harm’s way and will likely be irreparably harmed if the emergency is not granted. An emergency motion must have a report of some kind attached, such as a police report, DHS report or a sworn statement by someone who is an eyewitness to the dangerous situation. In at least one Oklahoma court, the sworn statement cannot be made by the person who is asking for emergency custody – it must be from someone else.

Years ago, the law about emergency orders was unclear. There were no clear standards defining what was an emergency. As a result, people would claim things were emergencies simply because of their own oversight or disagreements. For example, it was common to see separated or divorced parents file emergency motions during Christmas break when they simply could not agree on how to divide the break.

In 2010, Oklahoma passed a law setting standards for emergency custody requests. The motion must show that the child is in surroundings that endanger the safety of the child and that if such conditions continue, the child would likely be subject to irreparable harm. Because emergency motions are presented in a hurry, the statute attempts to set some standards and expectations for reliability. In addition to the requirement that a report or a sworn statement be attached to the motion, the statute also provides that if any of the information in the motion that the judge relied on turns out to be false, the person who asked for emergency custody must pay attorney fees and costs that resulted from their emergency motion.

The person seeking emergency custody has to create (type out) an emergency motion, attach a report or a sworn statement in support of the motion, and sign a verification attached to the motion asserting that the allegations are true. The person seeking emergency custody must also create a proposed emergency order setting out the relief they are requesting. Most judges require the person seeking emergency custody to call the other side (usually the other parent) to give them notice that they are seeking emergency relief. Emergency custody motions are generally reviewed the same day, and the judge will either issue an order granting emergency relief or deny the motion for failure to properly allege an emergency.

What are surroundings endangering the safety of the child, and What is irreparable harm? The answers depend on the facts and circumstances of each case. If domestic violence is taking place in a child’s home, it is probably an emergency situation, even if the aggressor is not the other parent. If drug use is taking place in a child’s home, again, even if the user is not the other parent, it is probably an emergency situation. However, other situations depend on the age and needs of the child. For example, there is a big difference between a 15-year-old being left at home for an hour versus an infant being left alone for an hour.

Even with the law setting standards for emergency custody orders, the procedure for emergency custody varies widely in each county and with each judge. For example, protective order law includes this:

A protective order issued under the Protection from Domestic Abuse Act shall not in any manner affect title to real property, purport to grant to the parties a divorce or otherwise purport to determine the issues between the parties as to child custody, visitation or visitation schedules, child support or division of property or any other like relief obtainable pursuant to Title 43 of the Oklahoma Statutes, except child visitation orders may be temporarily suspended or modified to protect from threats of abuse or physical violence by the defendant or a threat to violate a custody order.

Even though that is the law, the reality is many judges allow people to file protective orders on behalf of their children and use the protective order process to completely disrupt custody and visitation schedules for months. In some cases, the person who is seeking emergency custody will file a motion for emergency custody with the family judge and a petition for a protective order, sometimes with a different judge, and sometimes even in a completely different county! The standards for emergency custody and protective orders are different, so a parent could have inconsistent rulings by different judges concerning the allegations.

If an emergency order is granted, judges and attorneys operate by a “rule of thumb” and generally expect to have an adversarial hearing (a mini-trial) on the emergency either 10 days or 14 days after the emergency order was granted. There is no law on this. If DHS has an open investigation, some judges will refuse to permit the full hearing until the DHS investigation is complete. This means that if an emergency order is granted, months could pass before there is ever any kind of meaningful hearing or progress in the case.

What This Means For You

If you believe a child is in harm’s way, you have to have evidence to convince the judge that an emergency order is necessary that day. Most judges initially view emergency requests with skepticism, because everyone knows that some people still say things are emergencies that are not. You must be proactive about identifying potential witnesses and finding out if there are any reports, including police reports, DHS reports, news articles or medical records. You should also look for other evidence, including text messages, photos, and social media posts that you may be able to use. If you are successful in getting an emergency order, you cannot take anything for granted. You must continue to prepare for the adversarial hearing, which means organizing your evidence and subpoenaing your witnesses. You should expect that the other parent will deny everything at the hearing, so you will need as much strong, independent proof about the situation as you can get.

If the judge will not permit a full, adversarial hearing until the DHS investigation is complete, you may think that the outcome will depend on what DHS says. This is not necessarily the case. DHS may “unsubstantiate” the allegations, yet the judge may disagree with DHS and keep the emergency in place. DHS may “substantiate” the allegations, but the judge may find that there is no emergency and vacate the emergency order. The work of DHS, like any other investigator, is simply a factor, or part of the evidence for the judge to consider.

Sometimes there are law enforcement investigations taking place at the same time as the emergency custody request, where law enforcement tries to determine if a crime possibly occurred. Just like with DHS, it is possible for someone to be arrested, yet the family law judge determines that there was no emergency. It is just as possible for no arrests to be made and for the family law judge to find that the allegations are true and keep the emergency order in effect.

Likewise, if there is a protective order in front of one judge and an emergency custody request in front of another judge, the judges may not treat the situation the same. The protective order judge may rule that the matter is a family law situation and dismiss the protective order, but the protective order judge may also keep the protective order in place indefinitely. The family law judge could dismiss the emergency, but the protective order could still be in effect. Or, even if the protective order is dismissed, the family law judge could still sustain the emergency and keep the emergency order in place.

Sometimes emergencies happen, and the courthouse is closed. Courts are only open Monday through Friday, from 8:30 to 5 pm. When a parent has good cause to believe that their child is a victim of abuse or neglect or suffering from the effects of domestic violence in the other parent’s home, visitation may be withheld. This is a very short-term, temporary solution, meaning that a parent with this kind of information must take legal action as soon as possible, rather than simply withhold visitation indefinitely.

If you have been falsely accused and someone has obtained emergency custody of your child, you need a courtroom trial lawyer who has experience in child custody emergencies, parental rights and criminal defense trials. Our law firm is one of the very few law firms that handle both family law and criminal defense cases. You may be facing an emergency child custody case in family court, a protective order in protective order court, and investigations by DHS and law enforcement. The stress is compounded by the reality that your contact with your child will be very limited, and sometimes nonexistent until you go to court. You cannot take anything for granted. You must prepare with your lawyer for the hearing as if it is a full trial because the judge has already determined, based on one-sided information, that your child is in a dangerous situation.

In protective order cases, the law says that if the petitioner prevails and obtains a protective order, the judge can award the petitioner their attorney fees associated with bringing the protective order. It is almost impossible for the defendant to recover attorney fees from the petitioner if the defendant wins. If the defendant wins, the defendant has to show:

• The petition for a protective order was filed frivolously, and

• No victim exists

This is a very high standard, and it is extremely rare to see defendants obtain attorney fees in protective order cases. It is very common to see petitioners obtain attorney fees in protective order cases.

In emergency custody cases, the law says that if any relevant information provided to the court which the court relied on to make its emergency custody decision turns out to be false, the court shall assess against the person who brought the emergency all attorney fees and costs incurred as a result of the emergency custody hearing. Even though this is the law, it is rare to see an award of attorney fees and costs awarded against the person who brought the emergency custody motion, even when most or all of the allegations in the emergency motion can be disproven.

Our law firm has special skills for these situations. Many attorneys can tell you the law about emergencies, but few have a real strategy for the courtroom. Whether we are seeking emergency custody or contesting a false or exaggerated claim, our procedure for handling cases is a product of our skills, training and experience. If your parental rights have been impacted by an emergency custody order, you need a lawyer who can advise you about family law and criminal law. We can help you prepare to testify for these hearings so you can be prepared to handle the stress and anxiety of testifying and present your evidence in an effective, credible way.

We Identify the Evidence Early On

We stress the importance of information-gathering at the onset of our work in every case. We have found that proactively gathering and organizing information on our own, without a court order or a request by anyone, helps us have superior case analysis. Early information-gathering gives our clients an advantage for identifying and requesting more data, settlement offers and negotiation, and trial preparation. In many cases, we are able to obtain very favorable settlements or favorable court rulings based solely on the hard work we do with our clients by organizing our evidence as soon as possible. Our attorneys have taught these concepts to other attorneys due to our insight and perspective into the trial preparation process.

Sometimes, We Have To Push The Other Side To Produce Evidence

However, there are some cases where we need information from someone else: either the opposing party or a third party. In many cases, the opposing party does not produce needed material, even when they are legally required to do so. Often, we can get the judge involved and force them to produce because we can show that we have clean hands and have produced everything while they are obstructing progress in the case through bad behavior. Involving the judge takes time and can cause case delays, so in every circumstance, we try to pause and ask, “How bad do we really need this?” to evaluate whether the cost of pursuing the information will outweigh the benefit.

You May Be Temporarily Inconvenienced Due To The Other Side’s Delay

There are circumstances where we should stop case progress and even wait to have a hearing until the other side has appropriately participated in the exchange of information. Most of those situations are in cases where the other side is making a false or exaggerated claim and refusing to produce any evidence pertaining to their claim. The most difficult of those circumstances is when our client lives in another state or country. We have had clients make plans to travel from long distances for hearings, only to arrive and learn that the opposing party and their lawyer have been misleading about their evidence. Unfortunately, if we choose to proceed with a hearing in those cases, the other side will sit on the witness stand and offer bad evidence because they know they did not produce the requested evidence that would show that they are wrong.

Family law is notorious for bad behavior. Your opponent may be willing to see what they can get away with simply to run up your costs of preparation and travel to hearings that will be delayed due to their misconduct. You should work with your attorney to assess whether you are ready to have the hearing with what you have or if you should wait and work with the judge to force the other side to produce evidence. If you proceed with the hearing without everything you need, you may receive an unfavorable ruling from the judge simply because you did not have the information the other side should have produced.