David Echols, an Oklahoma Family Attorney, on Issues Related to Children & Divorce`

By David Echols
March 27, 2014

Divorce creates a number of challenges that families must face, especially those with minor children. It's valuable for divorcing parents to be informed on the various issues that may affect their family dynamic and to understand how Oklahoma courts will treat factors such as child custody and visitation, issues of paternity, motions to modify, victim protection orders, guardianship, and adoption.

 

 
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Hosted by: Dan Couvrette, CEO, Divorce Magazine 
Guest speakers: Oklahoma Family Lawyer - David Echols. A Senior Attorney at Echols & Associates, David. W. Echols is an Oklahoma City divorce lawyer who specializes in family law issues such as divorce and child custody. Practicing matrimonial law and divorce since 1978, David is an expert in his field and well versed in all matters related to Oklahoma family law. He has the extensive experience, reputation, and professionalism that make him an invaluable asset for Oklahoma families and individuals seeking representation and advice. Learn more at www.echolslawfirm.com.

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Read the Transcript of this Podcast Below.

Let’s get started. We’re going to start with visitation. David, can you tell me what the Oklahoma court does to grant visitation and what is the requirement to be granted visitation.


Echols:
Well, when we’re talking about visitation between parents, the use of the word visitation would indicate that there’s a custodial parent and a visiting parent, and that it’s not joint custody, in which case it would be custodial time between the parents. Oklahoma statutes in case law favor an expanded use of visitation. Now, this is true around most courts across the country. The statute requires the court in deciding custody to assure the child a frequent and continuing contact with both parents.

And the statute requires the court to encourage parents to share rights and responsibilities of childrearing. Of course, there are exceptions to this where there has been domestic violence, harassment, or stalking. But our statutes require that the court enter a visitation schedule if there are not these intervening factors that would cause the court to be concerned about the safety of the child.

So, is there a minimum time in terms of visitation time for a non-custodial parent?

Echols: Well, it will be decided on a case-by-case basis, but there’s not a uniform for the state of Oklahoma standard visitation schedule. But the courts across Oklahoma have developed standard visitation schedules. For example, the standard visitation schedule in Oklahoma County is slightly different than the one in Cleveland County, but they’re essentially the same in this respect.

Ordinarily, it would call for alternate week visitation. In other words, the weekends would be divided between the parents. There are some inconsistencies in the schedules as to whether the visitation would start on 6pm on Friday and end 6pm on Sunday or would it start after school on Friday and end with delivery to school on Monday. Some visitation, and there’s certainly room within the standard visitation, there might be a midweek visitation.

The standard visitation schedule further would divide—all of them would—the holidays between the two parents, and would also divide the summertime approximately equally between the two parents. Now this is a guide and the court depending on the schedule of the parents, the schedule of the kids, how far the parents are from one another, can use this as a guide. And it would then be up to the court if the parties were unable to agree to determine what the visitation ought to be.

The key here is that the statute requires that there be a schedule and that this be a minimum, but that the parents be encouraged to exceed this in terms of phone calls and other contact with the children

Right. Just talking for a moment about grandparents, do they have any rights in terms of visitation with children?

Echols: Well, the rights of grandparents, if they have any, are very different than the rights of parents. Parents’ rights are protected by both the Oklahoma constitution and the United States constitution. As a matter of fact, some years ago Oklahoma had a grandparental visitation statute that simply allowed the court to impose visitation over the objection of parents on a best interest test. Simply listening to the evidence and entering an order for visitation based upon best interest.

In Oklahoma, that statute was found to be unconstitutional by our Supreme Court. And that was actually prior to the Troxel case, which was the United States Supreme Court that found the state of Washington statute to unconstitutional. The Washington statute was a broader statute. But the point is for a court to impose visitation upon parents there has to be a showing of actual harm. And as a matter of fact, our statute now says on its face that even with the showing of actual harm, if it’s an intact family there can be no grandparental visitation over the objection of both parents.

It then provides a variety of factors for the court to consider where there has been a death of one of the parents or where there’s been a divorce. And it is very difficult for grandparents to obtain visitation because parents’ rights to make decisions for their children and not to have the court intervene in their lives is protected by the constitution. And it’s only upon a showing of harm that will allow the court to intervene and to order some kind of visitation.

I see. So with a parent, is it necessary that they have a visitation schedule? Is that standard with all divorce cases in Oklahoma?

Echols: As a matter of fact, the statutes of Oklahoma require that there be a minimum schedule of visitation. Now, of course, the exception of that is where there is evidence of domestic violence, stalking, or harassment. And in those kinds of cases the court has to frame a visitation schedule where the court has confidence that the safety and welfare of the child would be protected. But absent those factors, and even with those factors, the court has a number of opportunities available including supervised visitation, having the exchange of the child between parents supervised, having the parents attend some kind of course involving appropriate parenting and anger management. So, it’s very unusual that there would be any kind of a divorce case in Oklahoma where there would not be some kind of visitation schedule.

So, when a couple separates do they get a visitation schedule set up right away or does that not happen until after the divorce is finalized?

Echols: It depends on whether or not the parties have requested a temporary order. Now, the purpose of a temporary order is to regulate the conduct of the parties until ultimately the court can enter the decree of divorce, which now in Oklahoma is called dissolution of marriage. Been doing this for 40 years, so our statute also uses interchangeably the words divorce and dissolution of marriage that the action now in Oklahoma is dissolution of marriage.

But the point is, on entry of a temporary order the first thing the lawyer’s going to do is move for a temporary order that will set up a schedule of visitation while the divorce is pending. And as a matter of fact, it’s even more likely that that temporary order would call for somewhat of an equal split of the time between the parents, to keep the parents on an even track in terms of if they’re unable to resolve the case then there has to be a custody fight.

So, what happens if one parent lives out of state? How is visitation decided then?

Echols: Those are difficult questions. But the court actually has some schedules available to them, for as such a mobile society that it’s not an unusual occurrence anymore. And it would call for longer periods of time, maybe most of the summer. Longer times and, depending on if the school is a year round school, then for each break or each quarterly break where there would be a week or so would call for visitation during that period of time. So, the effort would be made to increase the time. Now it’s going to depend on if they’re out of state, you know, in Dallas, Texas or someplace and Kansas, it’s not very far. It might still be the standard visitation schedule for the most part.

I see.

Echols: But the court’s going to enter an order for some kind of minimum visitation based upon the schedule and where the parents live in an effort to try to keep frequent and continuing contact between the parent and the child.

Is it possible that somebody would receive no visitation, perhaps in the case of domestic violence or if the person has been charged with something and may be in jail? Is that no visitation, is that possible?

Echols: There’s one phrase that lawyers…possible. And certainly it’s possible. It is unlikely, but there are those cases where there has been domestic violence, where there has been stalking and harassment, and especially in those cases where the court has entered some orders and one of the parties violate those orders. Or you have a parent who tested positively for drug and alcohol consumption, that visitation would be terminated until that parent could produce a random drug testing that showed that they’re no longer on drugs.

So, it certainly is possible, but absent those factors. There’s not a lot of cases in Oklahoma on visitation, but the cases that we have on visitation, unless the court has a really good reason for entering an order for no visitation, it’s going to be turned around. By the same token, the court has the power to enter orders where the child will be, in the court’s point of view, protected and insulated from harm. That is always going to be the utmost concern to the court.

But if it’s simply a difference in parenting styles, in other words you have one parent who has a more strict style of parenting than the other parent and is frustrated that the other parent won’t follow their style, that’s not going to be a basis for restricted visitation. It has to be something very serious.

Right. Let’s move onto the subject of paternity and what happens with children who are from unwed couples. When can a paternity action be initiated in Oklahoma?

Echols: Well, that’s an excellent question. The paternity action in Oklahoma by statute can actually be commenced before the birth of the child. Now, it can’t be finished until after the birth of the child. But it can be commenced before the birth or any time after the birth of the child.

And is paternity determined by the courts then or is it determined in some other way?

Echols: Well, it can be determined by the courts and that would be an adjudicated father. We have the uniform Parentage Act, which many other states have some version of. And this Act calls for various kinds of fathers, it actually identifies them. And what you just mentioned would be an adjudicated father. This would be someone who has been adjudicated by a court of confident jurisdiction to be the father.

Then you have the alleged father. This would be either the father filing the paternity and not knowing for sure that he’s the father, and requesting genetic testing, or the mother filing the action not knowing for sure and requesting genetic testing. Then there is the presumed father. This is the father by operation of law is recognized to be the father and of the statute.

And this is where the child has lived for more than two years in the home of both parents; it doesn’t even have to be a marriage. And certainly if a child is born of a marriage, it’s going to be presumed to be the child of that marriage. And that presumption lasts during the two-year period and after the two-year period it becomes irreparable and is really not subject to being challenged.

There is also one of the acknowledged fathers. The United States Supreme Court required that states have some kind of mechanism where parental rights can be conferred without the necessity of having a court intervention. And prior to this, at least in Oklahoma and most other states, you had to have a court intervention before you could have the relationship of father/child established.

The acknowledged fathers, where the father signs a form that is prepared by the Department of Human Services in Oklahoma stating that ‘I am the father of this child,’ if this form is not challenged within the period of time provided by statute, creates that parent/child relationship.

And he may or may not be the father in that case right?

Echols: That’s correct. The move across the country and in Oklahoma is to focus on the relationship and on the child less than on the parents in this case. And by the way, I’m maybe jumping ahead, but the United States Supreme Court also requires that a child that is born of parents who are not married must by law be treated the same as children that are born of a marriage.

And there’s a word that we won’t go into that was in our statutes and most other states statutes, and children were not treated the same by statute prior to the Supreme Court decisions. As a matter of fact, that Supreme Court decision cost our statute to be unconstitutional and it was subsequently changed so that it’s the same law in terms of visitation and child support for a child that’s born outside of a marriage as a child born within the marriage.

I see. And you mentioned DNA or genetic testing; can mothers or fathers be forced to have a DNA test done to determine paternity?

Echols: Yes, they can. And, you know, prior to the quality of testing that exists now, we actually had jury trials. And as a matter of fact, my wife, while she was on the bench in Oklahoma County, tried the last jury trial in Oklahoma County dealing with a paternity case. Prior to that the statutes changed because the genetic testing is so good that no longer does it become a question of who’s the parent.

There’s an exception to this, and that is after the period of time of the presumed parent, after that becomes irreparable then even the person who might say ‘I’m the father, I want testing,’ will not be allowed to have testing. But either parent can ask for testing and the court will order it.

Now, there’s another exception to this and that is if the action is filed prior to the birth of the child, the courts are not going to require testing that would require any kind of possible harm to the fetus.

Right. We’re going to move onto motions to modify. And perhaps you could just quickly explain to me what motions to modify is?

Echols: Well, let’s start with the issues in a divorce. And we can make short work of grounds because now every state in the union has some kind of a no-fault ground. So, we have no-fault grounds in Oklahoma and most other states do too. Our no-fault ground in Oklahoma is incompatibility, irreconcilable difference. The marriage is irreconcilably broken.

The other types of no-fault grounds would be living separate and apart for a period to time. So, that’s one of the major issues. The second major issue would be property and debt division. Now, property and debt division becomes a final judgment, and if it is not appealed within 30 days it can only be modified or vacated based upon our general fraud statutes. Then the other general area would be anything dealing with children, child support, and visitation.

Those orders are subject to modification when an application to the court, changed condition we can get into what the standard is for that, but those are modifiable. And any issue dealing with support of a spouse, spousal support, is subject to modification during the term of the award.

So, if we look at the primary issues of the divorce being property and debt division, that cannot be modified. Unless the parties are in breach of it, it is a final judgment and if it’s not appealable within 30 days it stands period. Whereas any issue dealing with children whether it be custody, visitation support, those are all subject to modification. And any issue dealing with spousal support within the term of the support award from the divorce court is subject to modification. It can be modified based upon the appropriate evidence.

So, if a client comes to you and they want to modify something, it sounds like they can only modify things that have to do with the children. Do they have to notify their spouse, or do you notify the spouse if you’re wanting to have something modified? What’s the actual process, how does that work?

Echols: It’s a good question and it requires the filing of a motion. And under Oklahoma law, it requires service of process. In other words, it requires that the parent be served just as the same process of when the divorce is filed. So, this is considered a new action and you have a motion of the parties by agreements, of course could go in and do whatever they want to do. But it’s important they enter orders. But the modification, whether it is for children or support alimony, spousal support, is by motion. And the person must be served; the former spouse must be served with process and with the motion.

Now, if they’re served do they need to get a lawyer? Couldn’t they deal with this on their own?

Echols: It would be imperative when they’re served that they look over their paperwork carefully. They determine if there are hearings that are already set on the paperwork. They determine what kind of relief is being requested and then they need to find an experienced divorce lawyer. It could be the lawyer that handled the case to begin with, it doesn’t have to be, but they’re behooved to get the assistance of counsel.

Right. Let’s talk now about victim protections orders. What is a victim protections order?

Echols: A victim protective order is an order that is separate and apart from many orders that are entered by the divorce court. It involves cases of alleged violence, domestic violence, or threats of harm, either actual harm or threats of harm. It involves possibility of stalking or harassment. And, by the way, for the protective order itself, for violence or for harassment, it has to be some kind of a family relationship, such as former family members or folks who live in the same household together.

I see. So when during a divorce case would a victim protective order be necessary?

Echols: That is an excellent question. And primarily the answer to it is, and this is something that the client would want to discuss with her lawyer, if there have been threats of violence or violence prior within the 30 to 60 days, prior to the filing of the divorce. Or, if after the filing of the divorce, there is violence or threats of violence, then the VPO should be at least considered by the lawyer and by the client.

The lawyer can assist the client in filing the VPO, but it is a filing that the client has to go to the courthouse themselves, fill out the paperwork. It’s admitted to the judge. The judge determines whether or not there is an emergency basis or not. In other words, the judge looks at the allegations the same day it’s presented at the courthouse and determines whether or not there needs to be an ex-parte emergency order without hearing.

And then whether they determine there’s an ex-parte order or not that becomes a process for the sheriff to serve on the person. And then they have the opportunity to come into court and object to the entrance to the protective order being entered. If the court determines that there are facts that justify the protective order, then they fashion that order to try to stop the conduct. It is a piece of paper signed by a judge. It won’t stop a bullet, it won’t stop a fist, but it has consequences that are greater than the orders entered by the divorce court even though the orders on their face look very similar.

And how long does the VPO, for the acronym, how long does that victim protective order last?

Echols: That has been a subject of change in our statutes through the years. Right now, the statute allows the court to enter a protective order for a maximum of five years, unless there is some other intervening conduct, like the person that’s in jail getting out of jail. But, generally, five years right now by statute is the maximum of a victim protective order. Now, it can be renewed at the end of five years, but it would expire by statute at the end of five years.

It sounds like the order is what some people would refer to as a restraining order. Is it the same or is it different than that?

Echols: That’s a really good question because when you look at the orders on their face they look very similar. The restraining orders are entered by a divorce court to restrain the parties from harassing or molesting each other, and restraining the parties from harming each other, or stalking each other. But the big difference withthe victim protective order is if there is an alleged violation of that, the person, after the first alleged violation, is actually charged with a crime.

It’s a criminal filing in that it’s a misdemeanor. And of course, a misdemeanor is any crime that has a maximum punishment of one year or less. If there’s an allegation of a second violation then it becomes a felony. So there are very serious consequences to the violation of a victim protective order. Where if the divorce orders and the temporary orders that are entered there are remedies. But those remedies can be very frustrating; it calls for filing of contempt of court, a hearing on contempt.

And there’s no immediate arrest of the person, booking in jail and being charged with a crime. So, there is a very big difference. Now a victim protective order could be used to require someone to leave their home. Victim protective orders could be used to be an embarrassing proposition for somebody. And if the divorce person is stating allegations that are determined not to be true, there are serious consequences that can flow from that because of the serious nature of the victim protective order.

Right. Let’s move onto adoption. What if a couple is together and the child is from one spouse and another relationship? It’s not their child and they want to adopt that child, what are the must-haves to go through this process in Oklahoma?

Echols: Well, adoptions occur in two ways. They either occur because both parents have consented to the adoption. Or, the facts fall within the statutes that allow for adoption without the consent of the parent. And it is true that, in Oklahoma, if the parent fails to comply with a court order for support for 12 out of the last 14 months prior to the filing of a petition to determine if a child is eligible for adoption without consent, or if there’s no order entered according to the parent’s ability to support the child 12 months of the last 14, then an application can be filed to have the child adopted.

This is a stepparent adoption by the stepparent. And then that person is notified, there’s a hearing set, and that person has the opportunity to defend against the allegations of their failure to support for the last 12 out of 14 months. Now, after that then there’s still a best interest hearing. Even if the court determines the child to be eligible for adoption without consent, there’s a next hearing with a guardian ad litem appointed to make sure that it is in the best interest of the child that the adoption take place.

So, there’s actually a two-stage process here. The first stage would be requesting that the court finds the child to be eligible for adoption without the consent of the parent. And that would have to do with the providing of support as required. And then the second step would be convincing the court that it’s in the best interest of the child that the stepparent adoption takes place.

In a case where the child is adopted in the relationship, will that person have the same rights for custody?

Echols: The answer to that question is absolutely yes. The adoption creates a parent/child relationship such that the person who adopts the child has exactly the same rights, the same responsibilities as if it was a natural birth. As a matter of fact, there’s a new birth certificate that’s issued. And if you look at the birth certificate, you can’t tell that there’s been an adoption.

So, that’s why it should be approached with the gravity and the significance that it deserves, because this is creating a parent/child relationship that is the same as if it were a natural birth. Both the parent who is already the parent and the stepparent need to think very carefully about that because there will be no difference under the law between a parent who is a parent by way of adoption or a parent who is a parent because of the natural birth of the child.

And that would be true even if that parent who adopted the child wanted to move out of state, they would have the same rights as if it were their own child? Not saying for sure that they could move them, but they’d have the same rights?

Echols: Yes, and as a matter of fact both the United States Supreme Court and the Oklahoma Supreme Court and the various Supreme Courts around the country made it very clear that the adopted children, because the court looks at it from the point of view of the child, must be treated no differently. Just as a child that comes by the way of paternity must be treated no differently than a child of either a natural birth or a child that’s of the marriage.

Right. Let’s talk for a few minutes; we’ll wrap up our conversation talking about guardianship. And, first of all, can you tell me what is guardianship in relation to divorce cases?

Echols: Well, guardianship is where a third party, a party that’s not a parent, is seeking to have an order giving them custody of the child. Now, obviously there are various kinds of guardianships. There are guardianships for minors and guardianships for adults. And what we’re talking about here of course would be guardianships for minors. For adults, primarily, the guardianship is to assist with their estate. Most of the time with minors there’s not an estate to be dealt with and it has to do with the guardianship of the minor.

The guardianship, where it’s entered, that person who is the guardian becomes the same as the custodial parent in a divorce case. And so the process of the guardianship within a divorce, once again, must be entered either by consent, or in Oklahoma there’s actually a couple of different ways it can go from there. One of those is a finding that’s required by clear and convincing evidence that the parents are unfit. If this is not a comparative test, and if you’re dealing with grandparents or third parties who might have more of this world’s good than the parents and might have the ability to have a nicer lifestyle for the child, it’s not a comparative test, it’s a test of the parents are unfit.

A guardianship is an action of necessity and it’s necessary because parents have either abandoned the child or are determined as being unfit. Now, there’s certainly a third category and that is the parents might, because of a physical infirmity or because of they’re not in a position where they can take care of the child, could consent to the guardianship. But, essentially, in Oklahoma, all guardianships tend to be like temporary orders in that if the parent can demonstrate to the court that whatever the circumstances were that caused the guardianship to be entered has been alleviated and they are now in a position where they are a fit parent.

Unless there has been the second type of guardianship, which is abandonment, then the court will dissolve the guardianship because it’s been said many times in Oklahoma cases that guardianships are cases of necessity. And if the necessity no longer exists, then the parent can have the opportunity to have the child back through convincing the court that they are now able to take care of the child.

Since 2010, there has been another kind of guardianship in Oklahoma. And that is one that is not entered based upon the unfitness test, but it’s based upon abandonment. And that is where the natural parent has left the child with a relative. In this case, it must be a relative. And the person they left the child with or the relative does not know how to get a hold of the parent. Then they can enter and request a guardianship on the grounds of abandonment.

The second way that that can be done is if the parent has left the child with the grandparent or a relative and the relative notifies the parent and the parent refuses to come and get the child. Those are the two circumstances where guardianship can be entered by abandonment. And under those circumstances, for the parent to get the child back requires a different test. It requires what, in Oklahoma, is called a Gibbons Test. And that is the way a decree is modified; you’ve got to show that there’s been a substantial material and permanent change condition so it’s no longer in the best interest that testing be there. In other words it’s not just a simple best interest test.

So, those are the two ways in the Oklahoma that a person might obtain guardianship of a minor child. It would always be a non-parent, because a parent by law is the lawful custodian of their child. A guardianship is where you establish that lawful custodianship in a third party.

And I think you’ve answered this question David, but what does a guardian do? Are they essentially acting like a parent?

Echols: That’s it. They do everything that the custodial parent would do, and they have all the rights. There’s only one right that they don’t have: they can’t consent to adoption. A natural parent can consent to adoption of their child, and a guardian can’t do that. But in all other respects, they’re exactly the same as a custodial parent.

And you’ve also touched on when is a guardianship needed? Is there a list of, you know, A, B, C, as to when it’s needed or is it on an as need be emergency case?

Echols: It’s on an as-made basis and there are many cases where a parent consents or the parent recognizes ‘I’m not in a position to take care of this child right now.’ And consents to the grandparent or the aunt or uncle or someone to have this… because they can’t enroll them in a school without it, they can’t put them on their insurance without it. It is truly a matter of necessity.

Of course, in the abandonment situation, it’s also a necessity. So it lasts as long as there’s reason for it to be entered. The question is if the parent comes back in and they want to end it, what proof do they have to have to try to convince the court to do it? Because it’s not an adoption, I mean, it’s not a conferring of rights that have no end. They certainly have the possibility of ending if the parent can come back in and show that they have corrected whatever the problem is.

Now, the advantage to the abandonment statute is that on the unfitness test it could be just devastating for a child to spend years in a home of a guardian and then have to leave that home because the parent can now establish that they’re not unfit. So, one of the advantages of doing the guardianship on the basis of abandonment—and but these are totally separate statutes, they’re both under the guardianship, the auspices of guardianship, but they’re two different ways of obtaining a guardianship.

So, the advantage of the abandonment is it is more difficult for the natural parent to be able to come back in and to have the child taken from the guardian and restored to them. Now, the court has mechanisms of doing this on a gradual basis and other things they can do, but it can be very devastating for a child to be taken from a home where they’ve been in for a number of years and go to a parent that they really don’t even know.

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