Oklahoma City, Edmond, Family Law Attorney, Divorce, Custody, Guardianship, Agreed Divorce
Oklahoma City, Edmond, Family Law Attorney, Divorce, Custody, Guardianship, Agreed Divorce
Thomas N. Lynn III Family Law Attorney Divorce, Custody, Guardianship Free Consult, 405-726-8710
Thomas N. Lynn IIIFamily Law AttorneyDivorce, Custody, GuardianshipFree Consult, 405-726-8710

Divorce Law

Oklahoma Information - Divorce, Custody, Child Support, Guardianship

To obtain a divorce in Oklahoma, at least one of the parties to the divorce must be a resident in good faith of Oklahoma for the 6 months next preceding the filing of the case. 43 OS 102. This 6-month requirement can't be waived. Pay attention to the military exception if there are children. The court does not necessarily get jurisdiction of the children if they have not been in Oklahoma. See the comments in CUSTODY below. The county in which the Divorce is brought must be a county in which one of the parties lives. 43 OS 103. But the place it must be brought can be waived. 

 

The grounds for divorce in Oklahoma are found in here. The most commonly used ground is #7, incompatibility. Use of incompatibility in a divorce case can avoid the necessity of testimony about emotional issues such as infidelity, abuse, etc. 

 

Some issues, such as abuse can be very relevant if custody of children or ability of the victim to support themselves is at issue in the case. (this is not to say that other grounds can't be relevant in resolving the case, but a family law attorney should be consulted to avoid unwanted or even disastrous problems later.

 

A Divorce undoes the marriage, that's usually the easy part.  Undoing the usual co-ownership of property (the division of assets) and the determination of custody of children and the necessity of support are usually the more troublesome issues.

 

UNDER CONSTRUCTION

Child Custody

This is a discussion of child custody between parents. The law is much different if the dispute is between a parent and a non-parent - such as occurs during a guardianship.
 
The issues that a Court is concerned with are different depending on how the case comes before the Court. A custody problem can be presented as an "initial determination," a "modification of an existing order," or a "third party action" where someone other than a parent is seeking custody.  
 
In an initial determination, the court must determine if it has jurisdiction or the power to grant the requested orders. See 43 O.S. 551-101 et seq (et seq is a fancy way to say and the following related stuff). This act is the Uniform Child Custody Jurisdiction and Enforcement Act. The Act says that for Oklahoma to be able to decide the custody the child either must have lived in Oklahoma for the previous 6 months or if the child lives in this state for less that 6 months, that the child and parents or parent are in Oklahoma and if only one parent is in this state, that the opposing parent is not living in the state that the child lived for more than 6 months before moving to Oklahoma. (there is a special law for infants less than 6 months old) There are other less common ways to establish jurisdiction, please ask your lawyer how jurisdiction is established if you are seeking initial custody.                                                                                                          
In a modification of custody, there is a prior custodial order. Again a court must decide if it has jurisdiction to modify the order. If the order is issued by an Oklahoma Court and at least one of the parties to the order has since the order was issued, lived in Oklahoma, the court has jurisdiction. If both parents and the child have left Oklahoma, the Court should refuse to modify the case due to a lack of jurisdiction. If the order is from another state and the child and a parent live in Oklahoma but a parent has lived in original that state since the custody order was issued, Oklahoma must defer to the other state and wait for the other state's court to either go forward with a modification or transfer the case to Oklahoma allowing the this state's Court to go forward. This process is a technical process and if not done correctly may result in a void order - meaning that there is no custody order in place. You should consult a family law attorney if you have a question about whether or not Oklahoma has jurisdiction to modify custody.                                                                                                                                                          
Once a court determines that it has jurisdiction a determination must be made on what is the current custodial order type. Is it Sole Custody or Joint? If the order is a sole custody, meaning that only one parent has legal right to make decisions, decide the residence of the child, consent to medical treatment, then the Court must make a determination based on case law from a case called Gibbons v. Gibbons from 1968. This Supreme Court opinion says that before a court can look at the best interests of a child to change a sole custody order, in the interests of stability in a child's life, it must first determine if "a permanent, material and substantial change" in the current custodial home, that directly and negatively affects the welfare of the child.
 
True Joint Custody does not require that the court use the Gibbons decision but may proceed to a best interest test.

Guardianship Law

Guardianship is the legal term for the process where a person assumes the Temporary legal right to act for another person in accord with the Orders of Guardianship with regard to their physical situation and/or their money.  The Guardian is the person assuming control and the Ward is the person whose person and/or estate is subject to control.   A guardianship can be issued "of the person" which allows the guardian to make decisions on medical treatment and to have control over the person, etc., and/or of "the estate" which allows the guardian to make decisions and act consistently with the order over the money and property of the ward, or both.  Guardianships over minor children are usually issued because the parents are not able due to poverty, illness, death, absence, or other unfitness, to have the care custody and control of vulnerable children.  Guardianships over adults are issued because the adult is unable due to physical or mental disability whether caused by age, defect, injury or illness to take care of their physical needs and/or an inability to manage their financial affairs.  Any court order granting a guardianship for an adult should allow as much autonomy to the ward as the court finds appropriate.  It should be noted, that a senior citizen is not incompetent just because they decide to spend money against the wishes of their children ie spending the kids' inheritance on things the kids think are frivolous.

 

A Guardian is a fiduciary of the estate of the ward and must report to the Court on the management of the estate on a yearly basis.  Fraud or deliberate misuse for a personal benefit of an elderly person's money or estate can result in criminal charges.

 

A Guardianship can and should be terminated when it is no longer necessary. Such as, when a person recovers from a debilitating illness, or when a parent regains the ability to care for their children or the child reaches the age of majority.  For a parent to terminate a guardianship over their children held by another person, the parent must show not only that there is no need for the guardianship now, they must also show that the child will not be harmed by the termination of the guardianship.



GrandParental Visitation

GrandParental visitation is a very emotional topic. It pits Grandparent(s) against the parent(s) of children.  The most recent State Supreme Court case to address this topic is CRAIG v. CRAIG 2011 OK 27, 253 P.3d 57.  This case says that Grandparents must use the Grandparental Visitation statute 43 O.S. 109.4 to establish visitation.  Grandparents can't exercise the visitation of a non-custodial and non-participating parent. A non-custodial parent can allow their parents to visit during the parent's visitation time, but the Grandparents can't enforce the parent's visitation.  Rather they must satisfy the visitation statutes requirements and show that the child will be harmed if the child does not visit the Grandparents.  A simple denial of contact with a grandparent is not a sufficient showing of harm.  There must be a showing to the Court that there is a meaningful existing and beneficial relationship between the child and grandparent, perhaps as a result of having lived with the grandparent for a time, such that would cause harm to the child if that relationship is severed.

 

A new case from the Court of Appeals, HILLHOUSE v. FITZPATRICK, 2013 OK CIV APP 36, ___ P3rd ______ recognizes the application of CRAIG above in the temporary order phase of a Divorce action and prior to entry of a Divorce.  The case said that Grandparents who try to get visitation as part of a divorce must follow the Grandparental Visitation statute.

 

 

 

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