Child Custody and Child Preference

July 25, 2014 6:11 pm

Child Custody | Tulsa Divorce Attorneys and Associates |

As previously discussed there are two types of child custody in Oklahoma: legal and physical.  We also previously provided examples and descriptions of how both types of child custody can be joint or sole.  Most paternity or divorce cases involving the determination of child custody in Oklahoma resolves outside of court.  But when the matter of custody becomes contested, the courts do rely on specific statutory and case law.

Child Custody and Paternity Actions:

The determination of child custody for paternity actions can be fairly simple.  Until such time that the court adjudicates or issues orders to the contrary, the mother presumably has sole legal custody.  However, once an individual has been found to be the father, a contested custody matter becomes similar to a custody hearing for divorcing parents.

In those situations, law provides no presumption regarding legal child custody exists, except during domestic abuse, stalking and harassment.  Ultimately the court looks to see what would be in the child’s or children’s physical, mental, and moral welfare and best interest.  Factors that the court may look at include, but are not limited to:  appropriate living arrangements, ability to support the children financially, the ability of one parent to work with the other for the benefit of the children, and if appropriate the child’s preference.

Child Custody and the Child’s Desire to Live With a Given Parent:

Oklahoma family law provides a rebuttable presumption.  It states that a child twelve (12) years of age is old enough to declare a  custody and visitation preference. This, however, is not as simple as it seems.  The court first determines if it is in the child’s best interest to allow them to express a preference as to which parent should have custody or limits to or periods of visitation. If the court so finds, then the child may express such preference or give other testimony.

If the court determines that the child is of a sufficient age to form an intelligent preference, the court will consider the expression of preference or other testimony of the child in determining custody or limits to or periods of visitation. However, the court’s interviewing of the child does not ultimately diminish the discretion of the court in determining the best interest of the child.  The child’s choice or wishes is not binding to the court.  Further, it can take all factors into consideration in awarding custody or limits of or period of visitation.

Oklahoma Court Cases

Child preference was an important issue in the recent case of Lowry v. Lewis.  In this Oklahoma family law case, father sought to modify a previous child custody order, because the parties child had expressed an interest for the father to have sole legal custody subject to the mother’s visitation.  Normally, when seeking to modify a previous family law order, whether for child support, alimony, visitation or custody, the party must prove that there has been a permanent, substantial and material change of conditions that directly affects the best interests of the minor children.  This is referred to as the “Gibbons standard”.

The trial court in Lowry, after interviewing the minor child, awarded custody to the father.  Mother appealed, arguing that the Gibbons standard did not fulfill.  The Court of Civil Appeals of Oklahoma determined a child’s expressed preference supports modification without further proof of circumstance changes.

This is a great article related to child custody; relocating with your child after divorce.

Tulsa Child Custody Attorneys:

If involved in a Child Custody dispute in Oklahoma call Tulsa Divorce Attorneys and Associates for a free consultation. Our Family law attorneys have handled countless divorce and custody cases in Oklahoma.