Hosted By: Diana Shepherd, Editorial Director, Divorce Magazine
Guest Speaker: Moura Robertson, Family Lawyer
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Read the Transcript of this Podcast Below.
Diana: My name is Diana Shepherd. I’m the Editorial Director of Divorce Magazine and Family Lawyer Magazine and your host for this Divorce Magazine podcast. The topic today is child custody, visitation, and child support in Oklahoma, and my guest is Tulsa, Oklahoma family lawyer Moura Robertson. A Fellow of the American Academy of Matrimonial Lawyers – the most prestigious organization for family lawyers in the nation – Moura is regarded as one of the top family law attorneys in Oklahoma. She has over 25 years of negotiation, litigation, and trial experience exclusively in the area of family law – including divorce, child custody, visitation, and child support – and she is here to share what all divorcing parents in Oklahoma need to know about divorce-related parenting and children’s issues. Let’s dive right in.
Since there’s no “one size fits all” when it comes to families, can you describe the different types of child custody arrangements available in Oklahoma?
Moura Robertson: In Oklahoma, the term “custody” refers to the collection of parental rights people have with respect to rearing their children. When parents separate, the question becomes whether they can continue to share those rights under a joint custody scheme. The court may grant the care, custody, and control of a child jointly to both parents or solely to either parent. “Joint custody” and “joint care, custody, and control” mean the parents will share in some or all of the aspects of the physical and legal care, custody, and control of their children.
If a parent has sole custody, however, that means that parent has sole decision-making authority over major decisions affecting the child’s health, education, and moral upbringing: for example, where the child will go to school, who the child’s doctors will be, and what religious instruction the child will receive. Even if one parent has sole custody, both parents will retain the right to decide all normal, routine matters while the children are in their care – such as what’s for dinner, how much time they can spend on their phone, and when bedtime is.
If one parent has sole custody, then is the other parent completely out of the loop when it comes to their children’s upbringing? Do they retain the rights they had pre-divorce to access records about their child’s education and healthcare, for example?
Regardless of who has custody, both parents also retain the right to access their children’s education and medical records and information. Sometimes, the court will grant one parent sole decision-making authority over certain aspects of child-rearing and joint custody over other aspects. For instance, if one parent is particularly religious and the other is not, the court might grant sole decision-making authority over the child’s religious upbringing to the religiously-inclined parent while granting joint decision-making authority over the child’s health care and education.
Moura, can you help our listeners to understand what “legal custody” and “physical custody” mean in the context of a divorce?
The court also has the authority to split custody between parents, meaning one parent is given the authority to make decisions for one child and the other parent is given authority to make decisions for another child. The important thing to keep in mind is that legal custody, which relates to decision-making, is not the same as physical custody in Oklahoma. Legal and physical custody are separate and distinct from one another, and one does not necessarily follow the other.
“Physical custody” or “visitation” is a set schedule as to when the children are to be with each of their parents under their direct physical control. Physical custody can be anything from alternating weeks between parental households to primary physical custody with one parent and alternating weekends with the other parent and anything in between. Having more decision-making authority does not necessarily mean having more time with the children.
Do the courts favor joint legal custody and physical custody over sole custody in Oklahoma?
Oklahoma law encourages separated or divorced parents to share the rights and responsibilities of rearing their children as a matter of public policy. That is, the parents agree to cooperate with one another, and there is no history of domestic violence, stalking, or harassing behaviors in their familial relationships. In my experience, most people are eventually able to set aside their differences and co-parent in their children’s best interests. That is not always possible, however.
If the parents cannot come to an agreement, what factors do the Oklahoma courts consider in granting custody?
There are parents who simply refuse to or are incapable of healthy co-parenting, and there are situations where co-parenting is simply not possible due to serious issues of mental illness, addiction, or domestic abuse. In those cases, the court will decide what custodial arrangement is in the children’s best interests based upon the court’s interpretation of the particular facts of the case. When deciding custody of minor children, the court is required to consider what appears to be in the best interests of the child’s physical, mental, and moral welfare. The focus of the trial examination is on the children’s needs and the parents’ respective abilities to meet those needs. The court will consider evidence of the character and conduct of the parents and the nature of their parent-child relationships.
The court will also consider the ability of the parents to encourage the sharing of love, affection, and contact between the child and their other parent, the interaction and interrelationship of the child with their parents and siblings, and which parent is more likely to allow the child frequent and continuing contact with the other parent. When establishing a physical custodial or “visitation” schedule, the court will consider things such as the developmental stages of the children, work and school schedules, distance from each parent’s residences to the children’s schools, plus other factors particular to the circumstances of the case.
It sounds like the Oklahoma courts have a lot to consider when awarding custody and visitation. What about the parents and the children? Do they have any say in this at all?
Parental preferences as to custody and visitation do matter and they are taken into consideration by the court, but the court is not bound by expressions of preference. For example, the court may award joint custody over the objection of one parent. Parental agreement for joint custody is not necessary for the court to award joint custody. Similarly, children in Oklahoma may express a preference as to which parent they wish to have custody or as to limits or periods of visitation, but the court does not have to follow the children’s preferences, either.
Can you tell us more about how the court decides whether or not to follow the children’s preferences when it comes to custody and visitation in Oklahoma?
The law requires the court to first determine whether the child’s best interests will be served by allowing the child to express a preference. The court is required to consider a child’s expression of preference if the child is of sufficient age to form an intelligent preference, which the law generally presumes to be at age 12 – assuming the child is not developmentally delayed by a chronic condition or accident. Nevertheless, the child’s preference does not diminish the court’s discretion to determine the best interests of the child. The court is not bound by the child’s choice or wishes and is required to take all factors into consideration when awarding custody and visitation in Oklahoma.
Ideally, the parents will be able to decide for themselves how they are going to parent their children rather than hand over this important decision to a total stranger to their family because the judge won’t necessarily give them what either of them wants.
A seasoned family law attorney has the skills necessary either to negotiate a parenting plan that works for everyone involved or to effectively make your case for custody to the court in case those negotiations fall through.
What can a parent do if they are being denied court-ordered visitation, or if they think their children are being abused while they’re with their other parent?
It is public policy in Oklahoma to ensure that children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children. Under Oklahoma law, a custodial parent has a duty to facilitate visitation with a noncustodial parent, and when a custodial parent is denying or interfering with the noncustodial parent’s visitation, the noncustodial parent may file a motion with the court for enforcement of their visitation rights. The court is then required to schedule a hearing within 21 days after the noncustodial parent filed their motion for enforcement of visitation. At the hearing, if the court finds that the noncustodial parent’s visitation rights have been unreasonably denied or otherwise interfered with by the custodial parent, the court has an array of options available to remedy the situation.
Can you give us an example of how this works?
For example, the court can order compensating visitation or “makeup” time, which must be the same type of visitation lost. In other words, if the parent was denied holiday visitation, the court can order the holiday to be made upon the next holiday. If the parent was denied weekend visitation, the court can order that time to be made up during the other parent’s weekend. The same is true for weekday and summertime visitation, and the statute requires that such “make-up” time take place at the convenience of the noncustodial parent.
Other options the court has are requiring the custodial parent to post a bond, to attend counseling, or to attend educational sessions focusing on the impact visitation disputes have on children. The court can also order supervised visitation or any other remedy the court considers appropriate – including an order that modifies a prior order granting child custody.
This is not to say that you cannot withhold visitation if you reasonably believe that your children are at imminent risk of irreparable harm. In that instance, however, you must file a motion with the court for an emergency order.
What does a separated or divorced parent do if they need to relocate? Can a parent who has sole custody make a unilateral decision to move and take their children with them?
The short answer to this question is “it depends”. In Oklahoma, “relocation” is defined as a change in the principal residence of the child over 75 miles for a period of 60 days or more – not including a temporary absence. Parents have a constitutional right to relocate anywhere they want. The question is whether they can lawfully take their children with them.
Under Oklahoma law, a parent entitled to custody has a right to change the child’s residence, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child. This is a highly litigated area of the law, and the answer will depend on the specific facts of the case.
Moura, can you describe the legal process for relocating with a child? If the court agrees to the relocation, how long will it be before the parent can move away with their child?
If you are entitled to custody or visitation, the law requires that the other parent must provide written notice of a proposed relocation of your child and change in primary residence address. The notice must include the specific new address of the intended new residence if known, the mailing address, if not the same, the home telephone number, if known, and the date of the intended move or proposed relocation. They must include a brief statement of the specific reasons for the proposed relocation of the child together with a proposal for a revised visitation schedule. The parent wishing to relocate must provide 60-days’ advance notice to the other parent – unless they did not know and could not have reasonably known of the change in time to provide a 60-day notice, in which case the notice must be given within 10 days after the date when they knew of the change.
If the non-relocating parent does not file a court proceeding seeking an order to prevent the relocation within 30 days thereafter, then the court will authorize the relocation. It is important to comply with these notice requirements because the court can consider failure to notify of a relocation of the child when deciding custody and visitation. Reasonable costs and attorney fees may also be assessed against the relocating parent if they fail to give the required notice.
Let’s switch gears and talk about child support in Oklahoma. How is child support calculated, and what does it include?
In Oklahoma, child support is calculated according to a statutory formula set forth in the Oklahoma Child Support Guidelines. These Guidelines assume that all families incur certain child-rearing expenses during a child’s minority, comprised of housing, food, transportation, basic public educational expenses, clothing, and entertainment. They are used to determine each parent’s percentage share of these expenses, with adjustments being made for shared parenting time. These percentages also apply to the cost of health insurance, uncovered health care expenses, and work or education-related childcare.
Are there any circumstances where child support would cover more than the basics or continue after the child’s age of majority? For example, what if a child has special needs – or one parent wants their child to go to college?
Under certain circumstances, provisions can also be made for payment of extraordinary and special child-related expenses, such as private educational programs and the costs associated with transporting children long distance for visitation. Costs for college education, however, are not included within the Oklahoma Child Support Guidelines. Parents’ legal obligation to support their children continues until the child “ages out”, that is, until they turn 18 or if they are regularly and continually attending high school (or a high school equivalent program) until they graduate or turn 19, whichever occurs later.
If the child has special needs, then support can continue into the child’s adulthood, but the parent seeking support into adulthood must get a court order to that effect before their child “ages out”.
Moura, I have one final question for you: after child support has been set, can it be modified for any reason?
It’s also important to note that child support in Oklahoma is subject to modification when there has been a substantial change in condition, such as changes in gross monthly income, parenting time, health insurance, and childcare expenses. When modifying child support, the court will examine each parent’s current gross monthly income, the current cost of available health insurance coverage, what actual annualized childcare expenses are, and the number of overnight periods each parent is exercising. Based on these factors, the court will recalculate child support accordingly.
Diana: I’d like to thank my guest for this podcast, Tulsa family lawyer Moura Robertson, for providing such valuable information to our listeners! Moura is highly regarded by her peers; aside from being an AAML Fellow, she is a top 25 Women Lawyer in Oklahoma, an Oklahoma Super Lawyer, and she was honored as the Lawyer of the Year for 2020 by Best Lawyers. If you are facing a dispute over child custody, visitation, or child support in Oklahoma, learn how Moura Robertson can help by visiting her website at www.DSDA.com.