May 07, 2019
“I want custody of my child” “I want custody of my grandkids, niece, nephew, friend of a friend’s kids…” We hear it all. The majority of the time, at the beginning of the conversation, the person asking doesn’t really understand what they want – they just know they want to be the one responsible for taking of the child.
Custody is two-fold, physical custody of the child and legal custody of the child. Both have to be figured out when parents are no longer living together.
Physical custody of the child is what most parents typically think of when they are asked what they want regarding custody of the child; legal custody involves who is going to be making the decisions for the child regarding their health, education and welfare.
When a parent is in contest with the other parent regarding the children there are several types of custody situations that can ultimately resolve a case. In Oklahoma, historically, courts would look to the mother as the appropriate custodial parent. The statute for parentage cases currently states “Except as otherwise provided by law, the mother of a child born out of wedlock has custody of the child until determined otherwise by a court of competent jurisdiction.” 10 OS § 7800.
The statute is a jumping off point for determining custody, not the end, in parentage cases.
Custody of children has to be determined both in divorce actions and in parentage actions, actions involving two adults that are not married to each other. The statute above is only specific to a child born out of wedlock; if the parents are married and filing for divorce then this statute doesn’t apply and the court is going to determine custody based on, primarily, the best interests of the child. Talk to attorneys helping with divorce cases about the same and make sure to keep the child’s interests in mind first.
Public policy of Oklahoma at this time, is, unless there are mitigating factors, both parents are fit to be custodians of the child, therefore, joint custody is preferred by the courts if this is possible. I actually heard a judge say that he really didn’t care if the parents felt like they could co-parent; in his court, all custody matters would be joint custody situations even if the parents hate each other and refuse to get along. Not all courts rule this way, most courts prefer parents to have joint custody, but will look at all factors if the parties are unable to work together and they are in contest over who should have primary custody.
So what is joint custody and primary, or sole, custody?
Let’s tackle sole custody first. Sole custody means that one parent has all the responsibilities for the child and has all the decision-making authority regarding the health, education and welfare of the child. It does not mean the other parent’s rights are terminated or that the other parent never gets to see the child. What it does mean is the custodial parent doesn’t have to consult with the other parent to make decisions for the child and is the parent in control. It is not unusual in a sole custody situation for the non-custodial parent to have standard visitation, which typically is visitation with the child every other weekend and possibly an evening of visitation added on an off week.
Sole custody is preferred by the courts when one parent lives away from the child, ie. In another state, and establishing joint custody would be difficult. It is also preferred by most courts when the parents are completely unable to co-parent and their lack of cooperation or the hostility towards one another is such that it is affecting the child. Obviously, if one parent is completely unavailable to parent, ie. In prison, sole custody is a must.
Joint custody means that the parents are to communicate and make decisions regarding the child together. At times, one parent will still be deemed primary for situations where the parents can not agree on the big decisions, but not always. More and more, joint custody means they both are to make the big decisions and if they come to an impasse they either figure it out, go to mediation or lastly end up back in court. If one is deemed primary in a joint custody arrangement, typically, the primary parent will have to show a “good faith effort” to include the other parent in the big decisions and then, if they are at an impasse, the primary parent can make the final call on the issue.
I have even seen joint custody written in such a way that one parent is primary over the educational needs of the child and the other parent is primary over the health needs of the child and everything else is either figured out together or taken to mediation or, again, the parents are back in court.
If there is constant disagreement and no cooperation can be had between the parents even after a joint custody arrangement is determined, its not unusual for parents to file a Motion to Modify Custody to try and determine one parent as primary.
Needing to “take custody of a grandchild”, in Oklahoma, is called guardianship. The grandparent can attempt to get custody of the grandchild – both physical and legal custody – but this type of situation is not handled by the Family Docket and, instead, is handled by the Probate Docket and these types of cases are governed by a completely different statute than the parentage or divorce statutes.
These types of cases usually arise because the parents are unavailable to take care of their children for numerous reasons and the children need someone to step into the “shoes” of the parent to protect them and care for them.
Whereas parentage and divorce cases, once the final order is entered, ideally, that is the end of the case until the child becomes an adult; in guardianship cases the idea is that this is supposed to be a temporary fix until the parents, either both or one of them, can step back in and take back the role of parent. Obviously, parents in parentage and divorce cases end up back in court to address issues after the final order quite often; and its not unusual for a grandparent or relative to obtain a guardianship that is intended to be temporary and they maintain that guardianship until the child is an adult and the guardianship dissolves by issue of law.
So, depending on who you are to the child, what the relationship looks like between you and the other parent and how you are related to the child needing someone to have custody over them, these factors will determine what custody can look like and what that custody is called. The best-case scenario is that the child can enjoy being in the custody of both parents.