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In 2017, about 19.97 million children in the United States lived in single-parent households. And, according to the U.S. Census, this is a significant change from 8.2 million children in 1970. If you and your spouse are going through a divorce and have children younger than 18, you’re not alone, and child custody will be an important factor in the process.
If you’re unable to come to an agreement with your spouse as to child custody matters, the Court will order who is responsible for making medical, educational, and religious decisions, as well as how much time the child will spend with each parent. Child custody can be a complex issue to navigate. In today’s blog, we’ll be highlighting five things you should know about child custody matters.
1. Types of Custody
There are two types of child custody in Oklahoma: legal custody and physical custody. Legal custody refers to decision-making power regarding the child(ren)’s educational, medical, and religious upbringing. Physical custody refers to the amount of time the child spends with each parent. Within the two types of child custody, there are variations parties may agree to or a judge may order, depending on the best interests of the child(ren).
Within legal custody, parents may agree to or have a judge order a parent to have sole legal custody. This means that this parent is always responsible for making decisions regarding the child(ren)’s educational, medical, and religious upbringing, no matter who the child is with, and they do not need to consult with the other parent.
You also may agree to or have a judge order the parents to share joint legal custody, which means that both parents must confer with each other about all of these major decisions at all times and must attempt to agree on a conclusion that is in the child(ren)’s best interests.
If an agreement cannot be met, a parenting coordinator may be assigned to assist, or the parties may be ordered to mediate the situation. With joint legal custody, there is also a possibility for one parent to have final decision-making authority for one, some, or all major decisions. This makes that parent the tie-breaker. Both parents must still confer on all major decisions, but, if an agreement cannot be made, the parent with the final decision-making authority in that area may make the final call.
Within physical custody, parents can either share joint physical custody or one parent can have sole physical custody. Joint physical custody means the parents share equal, or nearly equal, time with the child(ren). When each parent has the child(ren) in their care, they have the duty of providing food, shelter, and clothing, making the day-to-day decisions, and allowing reasonable communication with the other parent. The parent without the child(ren) may not interfere with that parent’s time with the child(ren) and each must notify the other of all emergencies regarding the child(ren).
Sole physical custody means that one parent is the primary custodian and that their home is the child(ren)’s residence. The non-custodial parent may get no visitation, supervised visitation, standard-minimum visitation, or “reasonable” visitation depending on the agreement of the parties or court order. The non-custodial parent must always respect the custodial parent’s wishes and is simply exercising visitation with the child(ren) whenever they see or have them.
2. How Legal and Physical Custody is Determined
In a divorce, unless there is an agreement between the parties, the judge determines child custody matters based on what is in the best interests of the child(ren). Traditionally, one parent was awarded custody, both legal and physical. However, there is a growing trend to have both parents involved in their children’s lives and to take part in decision-making as long as each is fit to do so. There are statutory factors a judge considers when determining child custody matters, but they all focus on the rights and best interests of the child.
3. If and When a Parent Can Withhold Visitation from the Other Parent
Judges aim for minor children to have ongoing and frequent contact with both parents when it is in their best interests. Violation of a court order by not paying child support, not paying support alimony, or not providing reimbursements for out-of-pocket expenses is not a basis for withholding visitation.
However, if a parent has reasonable suspicion that the other parent poses a threat to the child(ren)’s welfare, visitation rights can be withheld with proper notification. If the Court finds that there has been abuse or neglect by a parent and that the child would be in danger in that parent’s care, the judge may grant emergency custody, then modify custody and impose limits on parental contact such as suspended or supervised visitation.
4. How a Custody Order Can be Changed
Once a Petition for Dissolution of Marriage is filed, the Court may issue a Temporary Order upon the Application of one of the parties. Among other things, this tells the parties how to handle child custody and child support issues during the pendency of the divorce. Of course, once the divorce is finalized, the Court will issue the Decree of Dissolution of Marriage.
Either one of these Orders may be modified under the right circumstances. A party may file to modify the child custody, visitation, and child support aspects of either the Temporary Order of the Decree of Dissolution of Marriage if a permanent, substantial and material change of conditions that directly affect the best interests of the minor child(ren) has occurred.
The party must also be able to show that, as a result of such change in conditions, the minor child(ren) would be substantially better off, with respect to their temporal, mental, and moral welfare if custody were changed. This may seem like a big hurdle, and it is. Without agreement from the other party, modifying child custody successfully can be tricky.
5. How Child Support is Determined
Child support is another factor that arises in child custody matters. In Oklahoma, the calculation follows a strict guideline which considers how many children the payor needs to support in this matter, the needs of the child(ren), the parents’ ability to pay, and how much time each parent has the child(ren).
Ability to pay is determined by the parties’ monthly income and how much time each parent has with the child(ren) is reflected by the number of overnight visits per year. The payor receives credit for any other children they are supporting outside of this matter, any health insurance they are providing for the child(ren) in this matter, and if they have the child(ren) a large portion of the year.
Oklahoma has also created a base for the lowest amount of money a parent is able to report as their income for child support purposes. Even if a parent is making less than minimum wage, they are imputed at Oklahoma’s monthly minimum wage amount unless they receive Social Security benefits.
It’s wise to enlist the help of an experienced attorney.
Sometimes, what starts out as a simple divorce can become increasingly complicated as you navigate the waters of child custody. If you and your spouse are having difficulties settling issues of child custody, child support or alimony, it’s best to work with an attorney experienced in matters of family law.
To learn more about child custody or to discuss your specific case, we encourage you to reach out to our team today at (405) 701-6376.
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