Marriage and Divorce Oklahoma Style
By
Alfred K. “Kent”
Morlan
Morlan & Associates,
P.C.
406 South Boulder, Suite
450
Tulsa, OK
74103
Definition of Marriage in
Oklahoma
Marriage is a
personal relation arising out of a civil contract to which the consent of
parties legally competent of contracting and of entering into it is necessary,
and the marriage relation shall only be entered into, maintained or abrogated as
provided by law. 43
OS §1
Marriages between
ancestors and descendants of any degree, of a stepfather with a stepdaughter,
stepmother with stepson, between uncles and nieces, aunts and nephews, except in
cases where such relationship is only by marriage, between brothers and sisters
of the half as well as the whole blood, and first cousins are declared to be
incestuous, illegal and void, and are expressly prohibited. Provided, that any
marriage of first cousins performed in another state authorizing such marriages,
which is otherwise legal, is hereby recognized as valid and binding in this
state as of the date of such marriage. 42
O.S. §2
Persons Having Capacity to
Marry in Oklahoma
Any unmarried person of the age of
eighteen (18) years or upwards and not otherwise disqualified is capable of
contracting and consenting to marriage with a person of the opposite sex but no
person under the age of eighteen (18) years shall enter into the marriage
relation, nor shall any license issue therefor, except upon the consent and
authority expressly given by the parent or guardian of such underage applicant
in the presence of the authority issuing such license, or on the written consent
of the parent or guardian of such underage applicant executed and acknowledged
in person before a judge of the district court or the court clerk of any county
within the State of Oklahoma. Provided, if such parent or guardian resides
outside of the State of Oklahoma such written consent may be executed before a
judge or clerk of a court of record. Such executed foreign consent shall be duly
authenticated in the same manner as proof of documents from foreign
jurisdictions. Provided that if the certificate of a duly licensed medical
doctor or osteopath, acknowledged in the manner provided by law for the
acknowledgment of deeds, and stating that such parent or guardian is unable by
reason of health or incapacity to be present in person, is presented to such
licensing authority, the license may issue on the written consent of such parent
or guardian, acknowledged in the same manner as the accompanying medical
certificate. Any such certificate and written permission shall be retained by
the official issuing the marriage license; and provided that the license may
issue and the marriage relation be entered into if such parent or guardian is on
active duty with the Armed Forces of the United States, on the written
permission of such parent or guardian, acknowledged in the manner provided by
law for acknowledgment of deeds by military personnel authorized to administer
oaths, if such permission is presented to such licensing authority, accompanied
by a certificate executed by a commissioned officer in command of said
applicant, to the effect that said parent or guardian is on active duty in the
Armed Forces of the United States. Provided further, that in all cases where it
is made to appear by affidavit of three (3) reputable persons that both parents
of said minor are deceased, or mentally incompetent, or their whereabouts are
unknown to the minor, and that no guardian has theretofore been appointed for
said minor, the judge of the district court issuing said license may in his
discretion consent to said marriage in the same manner as in all cases in which
consent may be given by a parent or guardian and with the same effect. At the
time of application for the license, the parent or guardian of such underage
applicant or other person authorized by this section to give consent may sign a
waiver, waiving the seventy-two-hour waiting period provided for in Section 5 of
this title [43-5]. Provided, however, every person under the age of sixteen (16)
years is expressly forbidden and prohibited from entering into the marriage
relation. Provided, that this section shall not be construed to prevent the
courts from authorizing the marriage of persons under the ages herein mentioned,
in settlement of suits for seduction or paternity; and the courts may also
authorize the marriage of persons under the ages herein mentioned when the
unmarried female is pregnant, or has given birth to an illegitimate child,
whether or not any suits for seduction or paternity have been brought; provided
that no court shall authorize the marriage of any male under the age of sixteen
(16) or any female under the age of sixteen (16) when the unmarried female is
pregnant unless at least one parent of each minor, or the guardian or custodian
of such child, is present before the court and has an opportunity to present
evidence in the event such parent, guardian, or custodian objects to the
issuance of a marriage license, and if they are not present said parent,
guardian, or custodian may be given notice of the hearing at the discretion of
the court. No marriage may be authorized when such marriage would be incestuous
under this chapter. 43
O.S. §3
Marriage Between Persons of
Same Gender Not Recognized
A marriage between persons of the
same gender performed in another state shall not be recognized as valid and
binding in this state as of the date of the marriage. 43
O.S. §4
Marriage License
Requirement
No person shall enter into or
contract the marriage relation, nor shall any person perform or solemnize the
ceremony of any marriage in this state without a license being first issued by
the judge or clerk of the district court, of some county in this state,
authorizing the marriage between the persons named in such license. 43
O.S. §4
Performance or Solemnization
of Marriages-Witnesses
A. All marriages must be contracted
by a formal ceremony performed or solemnized in the presence of at least two
adult, competent persons as witnesses, by a judge or retired judge of any court
in this state, or an ordained or authorized preacher or minister of the Gospel,
priest or other ecclesiastical dignitary of any denomination who has been duly
ordained or authorized by the church to which he or she belongs to preach the
Gospel, or a rabbi and who is at least eighteen (18) years of age.
B. 1. The judge shall place his or
her order of appointment on file with the office of the court clerk of the
county in which he or she resides.
2. The
preacher, minister, priest, rabbi, or ecclesiastical dignitary who is a resident
of this state shall have filed, in the office of the court clerk of the county
in which he or she resides, a copy of the credentials or authority from his or
her church or synagogue authorizing him or her to solemnize marriages.
3. The
preacher, minister, priest, rabbi, or ecclesiastical dignitary who is not a
resident of this state, but has complied with the laws of the state of which he
or she is a resident, shall have filed once, in the office of the court clerk of
the county in which he or she intends to perform or solemnize a marriage, a copy
of the credentials or authority from his or her church or synagogue authorizing
him or her to solemnize marriages.
4. The
filing by resident or nonresident preachers, ministers, priests, rabbis,
ecclesiastical dignitaries or judges shall be effective in and for all counties
of this state; provided, no fee shall be charged for such recording.
C. No person herein authorized to
perform or solemnize a marriage ceremony shall do so unless the license issued
therefor be first delivered into his or her possession nor unless he or she has
good reason to believe the persons presenting themselves before him or her for
marriage are the identical persons named in the license, and for whose marriage
the same was issued, and that there is no legal objection or impediment to such
marriage.
D. Marriages between persons
belonging to the society called Friends, or Quakers, the spiritual assembly of
the Baha'is, or the Church of Jesus Christ of Latter Day Saints, which have no
ordained minister, may be solemnized by the persons and in the manner prescribed
by and practiced in any such society, church, or assembly. 43
O.S. §7
Laboratory and Physician's
Statement-Contents-Filing
Each physician's statement shall be
accompanied by a statement from the person in charge of the laboratory making
the test, or from some other person authorized to make such statement, setting
forth the name of the test, the date it was completed and the name and address
of the person whose blood was tested, but not stating the result of the test.
The physician's statement and the laboratory statement shall be on the same form
sheet. Upon said form a detailed report of the laboratory test, showing the
result of the test, shall be transmitted by the laboratory to the physician who,
after examining it and if he deems it desirable, discussing it with either or
both of the proposed marital parties, shall file it with the State Health
Officer, or State Superintendent of Health, where it shall be held in absolute
confidence and shall not be open to public inspection; provided that it shall be
produced for evidence at a trial or proceeding in a court of competent
jurisdiction, involving issues in which it may be material and relevant, on an
order of the judge of such court requiring its production. 43
O.S. §33
Grounds for
Divorce
The district court may grant a
divorce for any of the following causes:
First.
Abandonment for one (1) year.
Second.
Adultery.
Third.
Impotency.
Fourth.
When the wife at the time of her marriage, was pregnant by another than her
husband.
Fifth.
Extreme cruelty.
Sixth.
Fraudulent contract.
Seventh.
Incompatibility.
Eighth.
Habitual drunkenness.
Ninth.
Gross neglect of duty.
Tenth.
Imprisonment of the other party in a state or federal penal institution under
sentence thereto for the commission of a felony at the time the petition is
filed.
Eleventh.
The procurement of a final divorce decree without this state by a husband or
wife which does not in this state release the other party from the obligations
of the marriage.
Twelfth.
Insanity for a period of five (5) years, the insane person having been an inmate
of a state institution for the insane in the State of Oklahoma, or inmate of a
state institution for the insane in some other state for such period, or of a
private sanitarium, and affected with a type of insanity with a poor prognosis
for recovery; provided, that no divorce shall be granted because of insanity
until after a thorough examination of such insane person by three physicians,
one of which physicians shall be a superintendent of the hospital or sanitarium
for the insane, in which the insane defendant is confined, and the other two
physicians to be appointed by the court before whom the action is pending, any
two of such physicians shall agree that such insane person, at the time the
petition in the divorce action is filed, has a poor prognosis for recovery;
provided, further, however, that no divorce shall be granted on this ground to
any person whose husband or wife is an inmate of a state institution in any
other than the State of Oklahoma, unless the person applying for such divorce
shall have been a resident of the State of Oklahoma for at least five (5) years
prior to the commencement of an action; and provided further, that a decree
granted on this ground shall not relieve the successful party from contributing
to the support and maintenance of the defendant. The court shall appoint a
guardian ad litem to represent the insane defendant, which appointment shall be
made at least ten (10) days before any decree is entered.
43 O.S.
§101
Residency Requirement of
Plaintiff or Defendant-Army Post or Military
Reservation
A. Except as otherwise provided by
subsection B of this section, the petitioner or the respondent in an action for
divorce or annulment of a marriage must have been an actual resident, in good
faith, of the state, for six (6) months immediately preceding the filing of the
petition.
B. Any person who has been a
resident of any United States army post or military reservation within the State
of Oklahoma, for six (6) months immediately preceding the filing of the
petition, may bring action for divorce or annulment of a marriage or may be sued
for divorce or annulment of a marriage.
Venue-Divorce, Annulments
and Separate Maintenance
A. The venue of any action for
divorce, annulment of a marriage or legal separation may be in the following
counties:
1. An action for divorce or
annulment of a marriage may be filed in the county in which the petitioner has
been a resident for the thirty (30) days immediately preceding the filing of the
petition or in the county in which the respondent is a resident; provided, the
action may be assigned for trial in any county within the judicial district by
the chief judge of the district; and
2. An action for legal separation
may be brought in the county in which either party is a resident at the time of
the filing of the petition.
B. The court may, upon application
of a party, transfer an action for divorce, annulment of marriage or legal
separation at any time after filing of the petition to any county where venue
would be proper under subsection A of this section if the requirements of
subsection C or D of this section are met.
C. The court shall grant a party's
application for change of venue when the other party is not a resident of this
state at the time the application for change of venue is filed, or the plaintiff
has departed from this state and has been absent for more than six (6) months
preceding the date the application for change of venue is filed, and transfer is
requested to the county where the applying party resides in this
state.
D. The court shall grant a party's
application for change of venue when the court determines that it is an
inconvenient forum under the circumstances and the court in another county is a
more appropriate forum consistent with the factors in subsection B of Section
551-207 of the Uniform Child Custody Jurisdiction and Enforcement Act after
substitution of the word "county" for the word "state" in such section of the
act, and transfer is requested to the county where the applying party resides in
the state.
Personal
Jurisdiction-Persons Once Living Within the
State-Service
A court may exercise personal
jurisdiction over a person, whether or not a resident of this state, who lived
within this state in a marital or parental relationship, or both, as to all
obligations for alimony and child support where the other party to the marital
relationship continues to reside in this state. When the person who is subject
to the jurisdiction of the court has departed from the state, he may be served
outside of the state by any method that is authorized by the statutes of this
state.
43 O.S. §104
Petition-Summons
A. A proceeding for dissolution of
marriage, annulment of a marriage, or legal separation shall be titled "In re
the Marriage of _______ and ______".
B. The initial pleading in all
proceedings under this title shall be denominated a petition. The person filing
the petition shall be called the petitioner. A responsive pleading shall be
denominated a response. The person filing the responsive pleading shall be
called the respondent. Other pleadings shall be denominated as provided in the
Rules of Civil Procedure, except as otherwise provided in this
section.
C. The petition must be verified as
true, by the affidavit of the petitioner.
D. A summons may issue thereon, and
shall be served, or publication made, as in other civil
cases.
Answer May Allege Cause-New
Matters Verified by Affidavit
A. The respondent, in his or her
answer, may allege a cause for a divorce, annulment of the marriage or legal
separation against the petitioner, and may have the same relief thereupon as he
or she would be entitled to for a like cause if he or she were the
petitioner.
B. When new matter is set up in the
answer, it shall be verified as to such new matter by the affidavit of the
respondent.
Time for Final Order Where
Minor Children Involved-Waiver-Educational
Program-Exceptions
A. 1. In an action for divorce where
there are minor children involved, the court shall not issue a final order
thereon for at least ninety (90) days from the date of filing the petition which
ninety (90) days may be waived by the court for good cause shown and without
objection by either party.
2. The court may require that within
the ninety-day period specified by paragraph 1 of this subsection, the parties
attend and complete an educational program specified by Section 107.2 of this
title.
B. This section shall not apply to
divorces filed for any of the following causes:
1. Abandonment for one (1)
year;
2. Extreme
cruelty;
3. Habitual
drunkenness;
4. Imprisonment of the other party
in a state or federal penal institution under sentence thereto for the
commission of a felony at the time the petition is filed;
5. The procurement of a final
divorce decree outside this state by a husband or wife which does not in this
state release the other party from the obligations of the marriage; 6. Insanity
for a period of five (5) years, the insane person having been an inmate of a
state institution for the insane in the State of Oklahoma, or an inmate of a
state institution for the insane in some other state for such period, or an
inmate of a private sanitarium, and affected with a type of insanity with a poor
prognosis for recovery;
7. Conviction of any crime defined
by the Oklahoma Child Abuse Reporting and Prevention Act committed upon a child
of either party to the divorce by either party to the divorce;
or
8. A child of either party has been
adjudicated deprived, pursuant to the Oklahoma Children's Code, as a result of
the actions of either party to the divorce and the party has not successfully
completed the service and treatment plan required by the
court.
C. After a petition has been filed
in an action for divorce where there are minor children involved, the court may
make any such order concerning property, children, support and expenses of the
suit as provided for in Section 110 of this title, to be enforced during the
pendency of the action, as may be right and proper.
D. The court may issue a final order
in an action for divorce where minor children are involved before the ninety-day
time period set forth in subsection A of this section has expired, if the
parties voluntarily participate in marital or family counseling and the court
finds reconciliation is unlikely.
Court Authority to Mandate
Educational Program Concerning the Impact of Separate Parenting and
Co-parenting, Visitation, Conflict Management, etc.-Adoption of Local
Rules
A. In all actions for divorce,
separate maintenance, guardianship, paternity, custody or visitation, including
modifications or enforcements of a prior court order, where the interest of a
child under eighteen (18) years of age is involved, the court may require all
adult parties to attend an educational program concerning, as appropriate, the
impact of separate parenting and coparenting on children, the implications for
visitation and conflict management, development of children, separate financial
responsibility for children and such other instruction as deemed necessary by
the court. The program shall be educational in nature and not designed for
individual therapy.
B. Each judicial district may adopt
its own local rules governing the program.
Proceeding for Disposition
of Children.
1. In any proceeding when the
custody or visitation of a minor child or children is contested by any party,
the court may appoint an attorney at law as guardian ad litem on the court's
motion or upon application of any party to appear for and represent the minor
children.
2. The guardian ad litem may be
appointed to objectively advocate on behalf of the child and act as an officer
of the court to investigate all matters concerning the best interests of the
child. In addition to other duties required by the court and as specified by the
court, a guardian ad litem shall have the following
responsibilities:
a. review documents, reports,
records and other information relevant to the case, meet with and observe the
child in appropriate settings, and interview parents, caregivers and health care
providers and any other person with knowledge relevant to the case including,
but not limited to, teachers, counselors and child care
providers,
b. advocate for the child's best
interests by participating in the case, attending any hearings in the matter and
advocating for appropriate services for the child when
necessary,
c. monitor the child's best
interests throughout any judicial proceeding,
d. present written reports to the
parties and court prior to trial or at any other time as specified by the court
on the child's best interests that include conclusions and recommendations and
the facts upon which they are based, and
e. the guardian ad litem shall, as
much as possible, maintain confidentiality of information related to the case
and is not subject to discovery pursuant to the Oklahoma Discovery
Code.
3. Expenses, costs, and attorney's
fees for the guardian ad litem may be allocated among the parties as determined
by the court.
B. When property, separate
maintenance, or custody is at issue, the court:
1. May refer the issue or issues to
mediation if feasible unless a party asserts or it appears to the court that
domestic violence or child abuse has occurred, in which event the court shall
halt or suspend professional mediation unless the court specifically finds
that:
a. the following three conditions
are satisfied:
(1) the professional mediator has
substantial training concerning the effects of domestic violence or child abuse
on victims,
(2) a party who is or alleges to be
the victim of domestic violence is capable of negotiating with the other party
in mediation, either alone or with assistance, without suffering an imbalance of
power as a result of the alleged domestic violence, and
(3) the mediation process contains
appropriate provisions and conditions to protect against an imbalance of power
between parties resulting from the alleged domestic violence or child abuse,
or
b. in the case of domestic violence
involving parents, the parent who is or alleges to be the victim requests
mediation and the mediator is informed of the alleged domestic violence;
and
2. When custody is at issue, the
court may order, in addition to or in lieu of the provisions of paragraph 1 of
this subsection, that each of the parties undergo individual counseling in a
manner that the court deems appropriate, if the court finds that the parties can
afford the counseling.
C. As used in this
section:
1. "Child abuse or neglect" shall
have the same meaning as such term is defined by the Oklahoma Child Abuse
Reporting and Prevention Act or shall mean the child has been adjudicated
deprived as a result of the actions or omission of either parent pursuant to the
Oklahoma Children's Code; and
2. "Domestic violence" shall
have the same meaning as such term is defined by the Protection from Domestic
Abuse Act.
D. During any proceeding concerning
child custody, should it be determined by the court that a party has
intentionally made a false or frivolous accusation to the court of child abuse
or neglect against the other party, the court shall proceed with any or all of
the following:
1. Find the accusing party in
contempt for perjury and refer for prosecution;
2. Consider the false allegations in
determining custody; and
3. Award the obligation to pay all
court costs and legal expenses encumbered by both parties arising from the
allegations to the accusing party.
43 O.S. §107.3
Equally Wrong
Parties-Divorce Granted to Both Parties-Powers of Court When Granting Alimony
without Divorce or Refusing Divorce
That the parties appear to be in
equal wrong shall not be a basis for refusing to grant a divorce, but if a
divorce is granted in such circumstances, it shall be granted to both parties.
In any such case or where the court grants alimony without a divorce or in any
case where a divorce is refused, the court may for good cause shown make such
order as may be proper for the custody, maintenance and education of the
children, and for the control and equitable division and disposition of the
property of the parties, or of either of them, as may be proper, equitable and
just, having due regard to the time and manner of acquiring such property,
whether the title thereto be in either or both of said
parties.
Best Interest of Child
Considered in Awarding Custody or Appointing Guardian-Joint
Custody-Plan-Arbitration
A. In awarding the custody of a
minor unmarried child or in appointing a general guardian for said child, the
court shall consider what appears to be in the best interests of the physical
and mental and moral welfare of the child.
B. The court, pursuant to the
provisions of subsection A of this section, may grant the care, custody, and
control of a child to either parent or to the parents jointly.
For the purposes of this section,
the terms joint custody and joint care, custody, and control mean the sharing by
parents in all or some of the aspects of physical and legal care, custody, and
control of their children.
C. If either or both parents have
requested joint custody, said parents shall file with the court their plans for
the exercise of joint care, custody, and control of their child. The parents of
the child may submit a plan jointly, or either parent or both parents may submit
separate plans. Any plan shall include but is not limited to provisions
detailing the physical living arrangements for the child, child support
obligations, medical and dental care for the child, school placement, and
visitation rights. A plan shall be accompanied by an affidavit signed by each
parent stating that said parent agrees to the plan and will abide by its terms.
The plan and affidavit shall be filed with the petition for a divorce or legal
separation or after said petition is filed.
D. The court shall issue a final
plan for the exercise of joint care, custody, and control of the child or
children, based upon the plan submitted by the parents, separate or jointly,
with appropriate changes deemed by the court to be in the best interests of the
child. The court also may reject a request for joint custody and proceed as if
the request for joint custody had not been made.
E. The parents having joint custody
of the child may modify the terms of the plan for joint care, custody, and
control. The modification to the plan shall be filed with the court and included
with the plan. If the court determines the modifications are in the best
interests of the child, the court shall approve the modifications.
F. The court also may modify the
terms of the plan for joint care, custody, and control upon the request of one
parent. The court shall not modify the plan unless the modifications are in the
best interests of the child.
G. 1. The court may terminate a
joint custody decree upon the request of one or both of the parents or whenever
the court determines said decree is not in the best interests of the child.
2. Upon termination of a joint
custody decree, the court shall proceed and issue a modified decree for the
care, custody, and control of the child as if no such joint custody decree had
been made.
H. In the event of a dispute between
the parents having joint custody of a child as to the interpretation of a
provision of said plan, the court may appoint an arbitrator to resolve said
dispute. The arbitrator shall be a disinterested person knowledgeable in
domestic relations law and family counseling. The determination of the
arbitrator shall be final and binding on the parties to the proceedings until
further order of the court.
If a parent refuses to consent to
arbitration, the court may terminate the joint custody decree.
Custody of Child During
Separation without Divorce
If the parents of a minor unmarried
child are separated without being divorced, the judge of the district court,
upon application of either parent, may issue any civil process necessary to
inquire into the custody of said minor unmarried child. The court may award the
custody of said child to either party or both, in accordance with the best
interests of the child, for such time and pursuant to such regulations as the
case may require. The decision of the judge shall be guided by the rules
prescribed in Section 2 of this act.
Determination of Paternity,
Custody and Child Support
Except as otherwise provided by
Section 3 of Title 10 of the Oklahoma Statutes, in any action concerning the
custody of a minor unmarried child or the determination of child support, the
court may determine if the parties to the action are the parents of the
children. If the parties to the action are the parents of the children, the
court may determine which party should have custody of said children, may award
child support to the parent to whom it awards custody, and may make an
appropriate order for payment of costs and attorney's
fees.
Orders concerning property,
children, support and expenses.
A. 1. Upon the filing of a petition
for dissolution of marriage, annulment of a marriage, legal separation by the
petitioner and upon personal service of the petition and summons on the
respondent, or upon waiver and acceptance of service by the respondent, an
automatic temporary injunction shall be in effect against both parties pursuant
to the provisions of this section unless the automatic temporary injunction has
been waived pursuant to this section:
a. restraining the parties from
transferring, encumbering, concealing, or in any way disposing of, without the
written consent of the other party or an order of the court, any marital
property, except in the usual course of business, for the purpose of retaining
an attorney for the case or for the necessities of life and requiring each party
to notify the other party of any proposed extraordinary expenditures and to
account to the court for all extraordinary expenditures made after the
injunction is in effect,
b. restraining the parties
from:
(1) intentionally or knowingly
damaging or destroying the tangible property of the parties, or of either of
them, including, but not limited to, any document that represents or embodies
anything of value,
(2) making any withdrawal for any
purpose from any retirement, profit-sharing, pension, death, or other employee
benefit plan or employee savings plan or from any individual retirement account
or Keogh account,
(3) withdrawing or borrowing in any
manner all or any part of the cash surrender value of any life insurance
policies on either party or their children,
(4) changing or in any manner
altering the beneficiary designation on any life insurance policies on the life
of either party or any of their children,
(5) canceling, altering, or in any
manner affecting any casualty, automobile, or health insurance policies insuring
the parties' property or persons,
(6) opening or diverting mail
addressed to the other party, and
(7) signing or endorsing the other
party's name on any negotiable instrument, check, or draft, such as tax refunds,
insurance payments, and dividends, or attempting to negotiate any negotiable
instruments payable to either party without the personal signature of the other
party,
c. requiring the parties to maintain
all presently existing health, property, life and other insurance which he or
she is presently carrying on any member of this family unit, and to cooperate as
necessary in the filing and processing of claims. Any employer-provided health
insurance currently in existence shall remain in full force and effect for all
family members,
d. enjoining both parties from
molesting or disturbing the peace of the other party or of the children to the
marriage,
e. restraining both parties from
disrupting or withdrawing their children from an educational facility and
programs where the children historically have been enrolled, or day
care,
f. restraining both parties from
hiding or secreting their children from the other party,
and
g. restraining both parties from
removing the minor children of the parties, if any, beyond the jurisdiction of
the State of Oklahoma, acting directly or in concert with others, except for
vacations of two (2) weeks or less duration, without the prior written consent
of the other party, which shall not be unreasonably withheld.
2. a. The automatic temporary
injunction may be waived by the parties if both parties have indicated on the
automatic temporary injunction notice in the space provided that the parties
have both agreed to waive the automatic temporary injunction. Each party must
sign his or her own name on the notice in the space
provided.
b. The automatic temporary
injunction notice shall contain a provision which will allow the parties to
waive the automatic temporary injunction. In addition, the provision must state
that unless both parties have agreed and have signed their names in the space
provided, that the automatic temporary injunction will be effective. Along with
the waiver provision, the notice shall contain a check box and space available
for the signatures of the parties.
3. The provisions of the automatic
temporary injunction shall be printed as an attachment to the summons and the
petition and entitled "Automatic Temporary Injunction Notice". The automatic
temporary injunction shall become an order of the court upon fulfillment of the
requirements of paragraph 1 of this subsection unless:
a. a party, within three (3) days of
service on the party files an objection to the injunction and requests a
hearing, or
b. the automatic temporary
injunction is waived as provided in paragraph 2 of this
subsection.
4. Nothing in this subsection shall
preclude either party from applying to the court for further temporary orders,
pursuant to this section, an expanded automatic temporary injunction, or
modification or revocation thereto.
5. With regard to an automatic
temporary injunction, when a petition for dissolution of marriage, annulment of
a marriage, or a legal separation is filed and served:
a. a peace officer shall use every
reasonable means to enforce the injunction which enjoins both parties from
molesting or disturbing the peace of the other party or the children of the
marriage against a petitioner or respondent, whenever there is exhibited by a
respondent or by the petitioner to the peace officer a copy of the petition or
summons, with an attached Temporary Injunction Notice, duly filed and issued
pursuant to this section, together with a certified copy of the affidavit of
service of process or a certified copy of the waiver and acceptance of service,
and
b. the peace officer has cause to
believe that a violation of the automatic temporary injunction has occurred. A
peace officer shall not be held civilly or criminally liable for his or her
action pursuant to this paragraph if his or her action is in good faith and
without malice.
B. After a petition has been filed
in an action for divorce or legal separation either party may request the court
to issue:
1. A temporary
order:
a. regarding child custody, support
or visitation,
b. regarding spousal
maintenance,
c. regarding payment of
debt,
d. regarding possession of
property,
e. regarding attorney fees,
and
f. providing other injunctive relief
proper in the circumstances.
All applications for temporary
orders shall set forth the factual basis for the application and shall be
verified by the party seeking relief. The application and a notice of hearing
shall be served on the other party in any manner provided for in the Rules of
Civil Procedure.
The court shall not issue a
temporary order until at least five (5) days' notice of hearing is given to the
other party.
After notice and hearing, a court
may issue a temporary order granting the relief as provided by this paragraph;
and/or
2. A temporary restraining order. If
the court finds on the basis of a verified application and testimony of
witnesses that irreparable harm will result to the moving party, or a child of a
party if no order is issued before the adverse party or attorney for the adverse
party can be heard in opposition, the court may issue a temporary restraining
order which shall become immediately effective and enforceable without requiring
notice and opportunity to be heard to the other party. If a temporary
restraining order is issued pursuant to this paragraph, the motion for a
temporary order shall be set within ten (10) days.
C. Any temporary orders and the
automatic temporary injunction, or specific terms thereof, may be vacated or
modified prior to or in conjunction with a final decree on a showing by either
party of facts necessary for vacation or modification. Temporary orders and the
automatic temporary injunction terminate when the final judgment on all issues,
except attorney fees and costs, is rendered or when the action is dismissed. The
court may reserve jurisdiction to rule on an application for a contempt citation
for a violation of a temporary order or the automatic temporary injunction which
is filed any time prior to the time the temporary order or injunction
terminates.
D. Upon granting a decree of
divorce, annulment of a marriage, or legal separation, the court may require
either party to pay such reasonable expenses of the other as may be just and
proper under the circumstances.
E. The court may in its discretion
make additional orders relative to the expenses of any such subsequent actions,
including but not limited to writs of habeas corpus, brought by the parties or
their attorneys, for the enforcement or modification of any interlocutory or
final orders in the divorce action made for the benefit of either party or their
respective attorneys.
43 O.S.
§110
Policy for equal access to
the minor children by parents
It is the policy of this state to
assure that minor children have frequent and continuing contact with parents who
have shown the ability to act in the best interests of their children and to
encourage parents to share in the rights and responsibilities of rearing their
children after the parents have separated or dissolved their marriage. To effectuate this policy, if requested
by a parent, the court shall provide substantially equal access to the minor
children to both parents at a temporary order hearing, unless the court finds
that such shared parenting would be detrimental to such child. The burden of proof that such shared
parenting would be detrimental to such child shall be upon the parent requesting
sole custody and the reason for such determination shall be documented in the
court record.
Indirect Contempt for
Disobeying Property Division Orders
Any order pertaining to the division
of property pursuant to a divorce or separate maintenance action, if willfully
disobeyed, may be enforced as an indirect contempt of
court.
Order to Provide Minimum
Visitation for Non-Custodial Parent-Violation of
Order
A. 1. Any order providing for the
visitation of a noncustodial parent with any of the children of such
noncustodial parent shall provide a specified minimum amount of visitation
between the noncustodial parent and the child unless the court determines
otherwise.
2. Except for good cause shown and
when in the best interests of the child, the order shall encourage additional
visitations of the noncustodial parent and the child and in addition encourage
liberal telephone communications between the noncustodial parent and the child.
B. 1. Except for good cause shown,
when a noncustodial parent who is ordered to pay child support and who is
awarded visitation rights fails to pay child support, the custodial parent shall
not refuse to honor the noncustodial parent's visitation rights.
2. When a custodial parent refuses
to honor a noncustodial parent's visitation rights, the noncustodial parent
shall not fail to pay any ordered child support or alimony.
C. 1. Violation of an order
providing for the payment of child support or providing for the visitation of a
noncustodial parent with any of the children of such noncustodial parent may be
prosecuted as indirect civil contempt pursuant to Section 566 of Title 21 of the
Oklahoma Statutes or as otherwise deemed appropriate by the court.
2. Unless good cause is shown for
the noncompliance, the prevailing party shall be entitled to recover court costs
and attorney fees expended in enforcing the order and any other reasonable costs
and expenses incurred in connection with the denied child support or denied
visitation as authorized by the court.
Liability and Remedies
Available Where Person Not a Party to a Custody Proceeding Denies Another of
Right to Custody or Visitation
Any person who is not a party to a
child custody proceeding, and who intentionally removes, causes the removal of,
assists in the removal of, or detains any child under eighteen (18) years of age
with intent to deny another person's right to custody of the child or visitation
under an existing court order shall be liable in an action at law. Remedies
available pursuant to this section are in addition to any other remedies
available by law or equity and may include, but shall not be limited to, the
following:
1. Damages for loss of service,
society, and companionship;
2. Compensatory damages for
reasonable expenses incurred in searching for the missing child or attending
court hearings; and
3. The prevailing party in such
action shall be awarded reasonable attorney fees.
Enforcement of Visitation
Rights of Noncustodial Parent.
A. When a noncustodial parent has
been granted visitation rights and those rights are denied or otherwise
interfered with by the custodial parent, in addition to the remedy provided in
subsection B of Section 111.1 of Title 43 of the Oklahoma Statutes, the
noncustodial parent may file with the court clerk a motion for enforcement of
visitation rights. The motion shall be filed on a form provided by the court
clerk. Upon filing of the motion, the court shall immediately:
1. Issue ex parte an order for
mediation; or
2. Set a hearing on the motion,
which shall be not more than twenty-one (21) days after the filing of the
motion.
B. Within five (5) days of
termination of mediation ordered pursuant to paragraph 1 of subsection A of this
section, the mediator shall submit the record of termination and a summary of
the parties' agreement, if any, to the court. Upon receipt of the record of
termination, the court shall enter an order in accordance with the parties'
agreement, if any, or set the matter for hearing, which shall be not more than
ten (10) days after the record of termination is received by the court.
C. Notice of a hearing pursuant to
subsection A or B of this section shall be given to all interested parties by
certified mail, return receipt requested, or as ordered by the court.
D. If the court finds that
visitation rights of the noncustodial parent have been unreasonably denied or
otherwise interfered with by the custodial parent, the court shall enter an
order providing for one or more of the following:
1. A specific visitation schedule;
2. Compensating visitation time for
the visitation denied or otherwise interfered with, which time shall be of the
same type (e.g. holiday, weekday, weekend, summer) as the visitation denied or
otherwise interfered with, and shall be at the convenience of the noncustodial
parent;
3. Posting of a bond, either cash or
with sufficient sureties, conditioned upon compliance with the order granting
visitation rights;
4. Assessment of reasonable attorney
fees, mediation costs, and court costs to enforce visitation rights against the
custodial parent;
5. Attendance of one or both parents
at counseling or educational sessions which focus on the impact of visitation
disputes on children;
6. Supervised visitation; or
7. Any other remedy the court
considers appropriate, which may include an order which modifies a prior order
granting child custody.
E. If the court finds that the
motion for enforcement of visitation rights has been unreasonably filed or
pursued by the noncustodial parent, the court may assess reasonable attorney
fees, mediation costs, and court costs against the noncustodial parent.
F. Final disposition of a motion
filed pursuant to this section shall take place no later than forty-five (45)
days after filing of the motion.
G. The Office of the Court
Administrator shall develop the form required by subsection A of this section to
be used for a motion to enforce visitation rights.
Care, Custody and Support of
Minor Children
A. A petition or cross-petition for
a divorce, legal separation, or annulment must state whether or not the parties
have minor children of the marriage. If there are minor children of the
marriage, the court:
1. Shall make provision for
guardianship, custody, medical care, support and education of the
children;
2. Unless not in the best interests
of the children, may provide for the visitation of the noncustodial parent with
any of the children of the noncustodial parent; and
3. May modify or change any order
whenever circumstances render the change proper either before or after final
judgment in the action; provided, that the amount of the periodic child support
payment shall not be modified retroactively or payment of all or a portion of
the past due amount waived, except by mutual agreement of the obligor and
obligee, or if the obligee has assigned child support rights to the Department
of Human Services or other entity, by agreement of the Department or other
entity. Unless the parties agree to the contrary, a completed child support
computation form provided for in Section 120 of this title shall be required to
be filed with the child support order.
The social security numbers of both
parents and the child shall be included on the child support order summary form
provided for in Section 120 of this title, which shall be submitted to the
Central Case Registry as provided for in Section 112A of this title with all
child support or paternity orders.
B. In any action in which there are
minor unmarried children in awarding or modifying the custody of the child or in
appointing a general guardian for the child, the court shall be guided by the
provisions of Section 21.1 of Title 10 of the Oklahoma Statutes and shall
consider what appears to be in the best interests of the
child.
C. 1. When it is in the best
interests of a minor unmarried child, the court shall:
a. assure
children of frequent and continuing contact with both parents after the parents
have separated or dissolved their marriage, and
b.
encourage parents to share the rights and responsibilities of child rearing in
order to effect this policy.
2. There shall be neither a legal
preference nor a presumption for or against joint legal custody, joint physical
custody, or sole custody.
3. When in the best interests of the
child, custody shall be awarded in a way which assures the frequent and
continuing contact of the child with both parents. When awarding custody to
either parent, the court:
a. shall consider, among other
facts, which parent is more likely to allow the child or children frequent and
continuing contact with the noncustodial parent, and
b. shall
not prefer a parent as a custodian of the child because of the gender of that
parent.
4. In any action, there shall be
neither a legal preference or a presumption for or against private or public
school or home-schooling in awarding the custody of a child, or in appointing a
general guardian for the child.
5. In making an order for custody,
the court shall require compliance with Section 8 of this
act.
D. 1. Except for good cause shown, a
pattern of failure to allow court-ordered visitation may be determined to be
contrary to the best interests of the child and as such may be grounds for
modification of the child custody order.
2. For any action brought pursuant
to the provisions of this section which the court determines to be contrary to
the best interests of the child, the prevailing party shall be entitled to
recover court costs, attorney fees and any other reasonable costs and expenses
incurred with the action.
E. Except as otherwise provided by
Section 112.1A of this title, any child shall be entitled to support by the
parents until the child reaches eighteen (18) years of age. If a dependent child
is regularly and continuously attending high school, said child shall be
entitled to support by the parents through the age of eighteen (18) years. No
hearing shall be required to extend such support through the age of eighteen
(18) if the child is regularly and continuously attending high
school.
F. In any case in which provision is
made for the custody or support of a minor child or enforcement of such order,
the court shall inquire whether public assistance money or medical support has
been provided by the Department of Human Services for the benefit of each child.
If public assistance money or medical support has been provided for the benefit
of the child, the Department of Human Services shall be a necessary party for
the just adjudication and establishment of the debt due and owing the State of
Oklahoma, as defined in Section 238 of Title 56 of the Oklahoma Statutes, for
the just adjudication and establishment of paternity, current child support, and
medical insurance coverage for the minor children in accordance with federal
regulations.
G. In any case in which a child
support order or custody order or both is entered, enforced or modified, the
court may make a determination of the arrearages of child
support.
A. 1. The Child Support Enforcement
Division of the Department of Human Services shall maintain a central case
registry on all Title IV-D cases and all child support orders established or
modified in this state after October 1, 1998.
Title IV-D cases are cases in which
child support services are being provided under the state child support plan as
provided under Section 237 of Title 56 of the Oklahoma Statutes.
2. In Title IV-D cases, the case
registry shall include, but not be limited to, information required to be
transmitted to the federal case registry pursuant to 42 U.S.C., Section 654A.
3. In cases in which child support
services are not being provided under the state child support plan as provided
under Section 237 of Title 56 of the Oklahoma Statutes and in which a child
support order is established or modified in this state after October 1, 1998,
the case registry shall include, but not be limited to, information required to
be transmitted to the federal case registry pursuant to 42 U.S.C., Section 654A,
and information from the support order summary form provided for in Section 120
of Title 43 of the Oklahoma Statutes.
B. 1. All orders entered after
October 31, 2001, which establish paternity or establish, modify or enforce a
child support obligation shall state for all parties and custodians subject to
the order:
a. an address of record for service
of process in support, visitation and custody actions, and
b. the address of record may be
different from the party's or custodian's physical address.
2. The address shall be maintained
by the central case registry. The order shall direct that any changes in the
address of record shall be provided in writing to the central case registry
within thirty (30) days of the change. The address of record is subject to
disclosure to a party or custodian upon request pursuant to the provisions of
this section and rules promulgated by the Department of Human Services. The
Department of Human Services may refuse to disclose address and location
information if the Department has reasonable evidence of domestic violence or
child abuse and the disclosure of such information could be harmful to a party,
custodian or child.
C. 1. All parties and custodians
ordered to provide an address of record to the central case registry as
specified in this section may, in subsequent child support actions, be served
with process by regular mail to the last address of record provided to the
central case registry.
2. Proof of service shall be made by
a certificate of mailing from a United States Post Office, or in child support
cases where services are being provided under the state child support plan, by a
certificate of mailing from the child support representative.
D. The Department of Human Services
shall promulgate rules as necessary to implement the provisions of this section.
Parental Support of Children
with Disabilities
A. In this section:
1. "Adult child" means a child
eighteen (18) years of age or older.
2. "Child" means a son or daughter
of any age.
B. 1. The court may order either or
both parents to provide for the support of a child for an indefinite period and
may determine the rights and duties of the parents if the court finds that:
a. the child, whether
institutionalized or not, requires substantial care and personal supervision
because of a mental or physical disability and will not be capable of
self-support, and
b. the disability exists, or the
cause of the disability is known to exist, on or before the eighteenth birthday
of the child.
2. A court that orders support under
this section shall designate a parent of the child or another person having
physical custody or guardianship of the child under a court order to receive the
support for the child. The court may designate a child who is eighteen (18)
years of age or older to receive the support directly.
C. 1. A suit provided by this
section may be filed only by:
a. a parent of the child or another
person having physical custody or guardianship of the child under a court order,
or
b. the child if the child:
(1) is eighteen (18) years of age or
older,
(2) does not have a mental
disability, and
(3) is determined by the court to be
capable of managing the child's financial affairs.
2. The parent, the child, if the
child is eighteen (18) years of age or older, or other person may not transfer
or assign the cause of action to any person, including a governmental or private
entity or agency, except for an assignment made to the Title IV-D agency.
D. 1. A suit under this section may
be filed:
a. regardless of the age of the
child, and
b. as an independent cause of action
or joined with any other claim or remedy provided by this title.
2. If no court has continuing,
exclusive jurisdiction of the child, an action under this section may be filed
as an original suit.
3. If there is a court of
continuing, exclusive jurisdiction, an action under this section may be filed as
a suit for modification pursuant to Section 115 of this title.
E. In determining the amount of
support to be paid after a child's eighteenth birthday, the specific terms and
conditions of that support, and the rights and duties of both parents with
respect to the support of the child, the court shall determine and give special
consideration to:
1. Any existing or future needs of
the adult child directly related to the adult child's mental or physical
disability and the substantial care and personal supervision directly required
by or related to that disability;
2. Whether the parent pays for or
will pay for the care or supervision of the adult child or provides or will
provide substantial care or personal supervision of the adult child;
3. The financial resources available
to both parents for the support, care, and supervision of the adult child; and
4. Any other financial resources or
other resources or programs available for the support, care, and supervision of
the adult child.
F. An order provided by this section
may contain provisions governing the rights and duties of both parents with
respect to the support of the child and may be modified or enforced in the same
manner as any other order provided by this title.
Evidence of Domestic Abuse
Considered-Rebuttable Presumption
A. In
every case involving the custody of, guardianship of or visitation with a child,
the court shall consider for determining the custody of, guardianship of or the
visitation with a child:
1.
Evidence of ongoing domestic abuse which is properly brought before it. If the
occurrence of ongoing domestic abuse is established by clear and convincing
evidence, there shall be a rebuttable presumption that it is not in the best
interests of the child to have custody, guardianship or unsupervised visitation
granted to the abusive person;
2.
Evidence of child abuse as such term is defined by the Oklahoma Child Abuse
Reporting and Prevention Act pursuant to this paragraph. If the parent
requesting custody of a child has been convicted of any crime defined by the
Oklahoma Child Abuse Reporting and Prevention Act or the child has been
adjudicated deprived pursuant to the provisions of the Oklahoma Children's Code
as a result of the acts of the parent requesting custody and the requesting
parent has not successfully completed the service and treatment plan required by
the court, there shall be a rebuttable presumption that it is not in the best
interests of the child for such parent to have sole custody, guardianship or
unsupervised visitation; and
3.
Whether any person seeking custody or who has custody of, guardianship of or
visitation with a child:
a. is or
has been subject to the registration requirements of the Oklahoma Sex Offenders
Registration Act or any similar act in any other state,
b. is
residing with an individual who is or has been subject to the registration
requirements of the Oklahoma Sex Offenders Registration Act or any similar act
in any other state, or
c. is
residing with a person who has been previously convicted of a crime listed in
Section 582 of Title 57 of the Oklahoma Statutes.
B. There
shall be a rebuttable presumption that it is not in the best interests of the
child to have custody, guardianship or unsupervised visitation granted to a
person who is:
1.
Subject to or has been subject to the registration requirements of the Oklahoma
Sex Offenders Registration Act or any similar act in any other state;
2.
Residing with a person who is or has been subject to the registration
requirements of the Oklahoma Sex Offenders Registration Act or any similar act
in any other state; or
3.
Residing with a person who has been previously convicted of a crime listed in
Section 582 of Title 57 of the Oklahoma Statutes.
Relocation Notification of
Children
. As used in this
section:
1. "Change of residence address"
means a change in the primary residence of an adult;
2. "Child" means a child under the
age of eighteen (18) who has not been judicially
emancipated;
3. "Person entitled to custody of or
visitation with a child" means a person so entitled by virtue of a court order
or by an express agreement that is subject to court
enforcement;
4. "Principal residence of a child"
means:
a. the location designated by a
court to be the primary residence of the child,
b. in the absence of a court order,
the location at which the parties have expressly agreed that the child will
primarily reside, or
c. in the absence of a court order
or an express agreement, the location, if any, at which the child, preceding the
time involved, lived with the child's parents, a parent, or a person acting as
parent for at least six (6) consecutive months and, in the case of a child less
than six (6) months old, the location at which the child lived from birth with
any of the persons mentioned. Periods of temporary absence of any of the named
persons are counted as part of the six-month or other period;
and
5. "Relocation" means a change in
the principal residence of a child over seventy-five (75) miles from the child's
principal residence for a period of sixty (60) days or more, but does not
include a temporary absence from the principal residence.
B. 1. Except as otherwise provided
by this section, a person who has the right to establish the principal residence
of the child shall notify every other person entitled to visitation with the
child of a proposed relocation of the child's principal residence as required by
this section.
2. Except as otherwise provided by
this section, an adult entitled to visitation with a child shall notify every
other person entitled to custody of or visitation with the child of an intended
change in the primary residence address of the adult as required by this
section.
C. 1. Except as provided by this
section, notice of a proposed relocation of the principal residence of a child
or notice of an intended change of the primary residence address of an adult
must be given:
a. by mail to the last-known address
of the person to be notified, and
b. no later
than:
(1) the sixtieth day before the date
of the intended move or proposed relocation, or
(2) the tenth day after the date
that the person knows the information required to be furnished pursuant to this
subsection, if the person did not know and could not reasonably have known the
information in sufficient time to comply with the sixty-day notice, and it is
not reasonably possible to extend the time for relocation of the
child.
2. Except as provided by this
section, the following information, if available, must be included with the
notice of intended relocation of the child or change of primary residence of an
adult:
a. the
intended new residence, including the specific address, if
known,
b. the
mailing address, if not the same,
c. the
home telephone number, if known,
d. the
date of the intended move or proposed relocation,
e. a
brief statement of the specific reasons for the proposed relocation of a child,
if applicable,
f. a
proposal for a revised schedule of visitation with the child, if any,
and
g. a
warning to the nonrelocating parent that an objection to the relocation must be
made within thirty (30) days or the relocation will be
permitted.
3. A person required to give notice
of a proposed relocation or change of residence address under this subsection
has a continuing duty to provide a change in or addition to the information
required by this subsection as that information becomes
known.
D. After the effective date of this
act, an order issued by a court directed to a person entitled to custody of or
visitation with a child shall include the following or substantially similar
terms:
"You, as a party in this action, are
ordered to notify every other party to this action of a proposed relocation of
the child, change of your primary residence address, and the following
information:
1. The intended new residence,
including the specific address, if known;
2. The mailing address, if not the
same;
3. The home telephone number, if
known;
4. The date of the intended move or
proposed relocation;
5. A brief statement of the specific
reasons for the proposed relocation of a child, if applicable;
and
6. A proposal for a revised schedule
of visitation with the child, if any.
You are further ordered to give
notice of the proposed relocation or change of residence address on or before
the sixtieth day before a proposed change. If you do not know and could not have
reasonably known of the change in sufficient time to provide a sixty-day notice,
you are ordered to give notice of the change on or before the tenth day after
the date that you know of the change.
Your obligation to furnish this
information to every other party continues as long as you, or any other person,
by virtue of this order, are entitled to custody of or visitation with a child
covered by this order.
Your failure to obey the order of
this court to provide every other party with notice of information regarding the
proposed relocation or change of residence address may result in further
litigation to enforce the order, including contempt of
court.
In addition, your failure to notify
of a relocation of the child may be taken into account in a modification of
custody of, visitation with, possession of or access to the child. Reasonable
costs and attorney fees also may be assessed against you if you fail to give the
required notice.
If you, as the nonrelocating parent,
do not file a proceeding seeking a temporary or permanent order to prevent the
relocation within thirty (30) days after receipt of notice of the intent of the
other party to relocate the residence of the child, relocation is
authorized."
E. 1. On a finding by the court that
the health, safety, or liberty of a person or a child would be unreasonably put
at risk by the disclosure of the required identifying information in conjunction
with a proposed relocation of the child or change of residence of an adult, the
court may order that:
a. the
specific residence address and telephone number of the child or of the adult and
other identifying information shall not be disclosed in the pleadings, other
documents filed in the proceeding, or the final order, except for an in camera
disclosure,
b. the
notice requirements provided by this article be waived to the extent necessary
to protect confidentiality and the health, safety or liberty of a person or
child, and
c. any
other remedial action that the court considers necessary to facilitate the
legitimate needs of the parties and the best interest of the
child.
2. If appropriate, the court may
conduct an ex parte hearing pursuant to this subsection.
F. 1. The court may consider a
failure to provide notice of a proposed relocation of a child as provided by
this section as:
a. a factor
in making its determination regarding the relocation of a
child,
b. a factor
in determining whether custody or visitation should be
modified,
c. a basis
for ordering the return of the child if the relocation has taken place without
notice, and
d.
sufficient cause to order the person seeking to relocate the child to pay
reasonable expenses and attorney fees incurred by the person objecting to the
relocation.
2. In addition to the sanctions
provided by this subsection, the court may make a finding of contempt if a party
violates the notice requirement required by this section and may impose the
sanctions authorized for contempt of a court order.
G. 1. The person entitled to custody
of a child may relocate the principal residence of a child after providing
notice as provided by this section unless a parent entitled to notice files a
proceeding seeking a temporary or permanent order to prevent the relocation
within thirty (30) days after receipt of the notice.
2. A parent entitled by court order
or written agreement to visitation with a child may file a proceeding objecting
to a proposed relocation of the principal residence of a child and seek a
temporary or permanent order to prevent the relocation.
3. If relocation of the child is
proposed, a nonparent entitled by court order or written agreement to visitation
with a child may file a proceeding to obtain a revised schedule of visitation,
but may not object to the proposed relocation or seek a temporary or permanent
order to prevent the relocation.
4. A proceeding filed pursuant to
this subsection must be filed within thirty (30) days of receipt of notice of a
proposed relocation.
H. 1. The court may grant a
temporary order restraining the relocation of a child, or ordering return of the
child if a relocation has previously taken place, if the court
finds:
a. the required notice of a proposed
relocation of a child as provided by this section was not provided in a timely
manner and the parties have not presented an agreed-upon revised schedule for
visitation with the child for the court's approval,
b. the child already has been
relocated without notice, agreement of the parties, or court approval,
or
c. from an examination of the
evidence presented at the temporary hearing there is a likelihood that on final
hearing the court will not approve the relocation of the primary residence of
the child.
2. The court may grant a temporary
order permitting the relocation of the child pending final hearing if the
court:
a. finds that the required notice of
a proposed relocation of a child as provided by this section was provided in a
timely manner and issues an order for a revised schedule for temporary
visitation with the child, and
b. finds from an examination of the
evidence presented at the temporary hearing there is a likelihood that on final
hearing the court will approve the relocation of the primary residence of the
child.
I. A proposed relocation of a child
may be a factor in considering a change of custody.
J. 1. In reaching its decision
regarding a proposed relocation, the court shall consider the following
factors:
a. the nature, quality, extent of
involvement, and duration of the child's relationship with the person proposing
to relocate and with the nonrelocating person, siblings, and other significant
persons in the child's life,
b. the age, developmental stage,
needs of the child, and the likely impact the relocation will have on the
child's physical, educational, and emotional development, taking into
consideration any special needs of the child,
c. the feasibility of preserving the
relationship between the nonrelocating person and the child through suitable
visitation arrangements, considering the logistics and financial circumstances
of the parties,
d. the child's preference, taking
into consideration the age and maturity of the child,
e. whether there is an established
pattern of conduct of the person seeking the relocation, either to promote or
thwart the relationship of the child and the nonrelocating
person,
f. whether the relocation of the
child will enhance the general quality of life for both the custodial party
seeking the relocation and the child, including but not limited to financial or
emotional benefit or educational opportunity,
g. the reasons of each person for
seeking or opposing the relocation, and
h. any other factor affecting the
best interest of the child.
2. The court may
not:
a. give undue weight to the
temporary relocation as a factor in reaching its final decision, if the court
has issued a temporary order authorizing a party seeking to relocate a child to
move before final judgment is issued, or
b. consider whether the person
seeking relocation of the child has declared that he or she will not relocate if
relocation of the child is denied.
K. The relocating person has the
burden of proof that the proposed relocation is made in good faith. If that
burden of proof is met, the burden shifts to the nonrelocating person to show
that the proposed relocation is not in the best interest of the
child.
L. 1. After notice and a reasonable
opportunity to respond, the court may impose a sanction on a person proposing a
relocation of the child or objecting to a proposed relocation of a child if it
determines that the proposal was made or the objection was
filed:
a. to harass a person or to cause
unnecessary delay or needless increase in the cost of
litigation,
b. without being warranted by
existing law or was based on frivolous argument, or
c. based on allegations and other
factual contentions which had no evidentiary support or, if specifically so
identified, could not have been reasonably believed to be likely to have
evidentiary support after further investigation.
2. A sanction imposed under this
subsection shall be limited to what is sufficient to deter repetition of such
conduct or comparable conduct by others similarly situated. The sanction may
include directives of a nonmonetary nature, an order to pay a penalty into
court, or, if imposed on motion and warranted for effective deterrence, an order
directing payment to the other party of some or all of the reasonable attorney
fees and other expenses incurred as a direct result of the
violation.
M. If the issue of relocation is
presented at the initial hearing to determine custody of and visitation with a
child, the court shall apply the factors set forth in this section in making its
initial determination.
N. 1. The provisions of this section
apply to an order regarding custody of or visitation with a child
issued:
a. after the effective date of this
act, and
b. before the effective date of this
act, if the existing custody order or enforceable agreement does not expressly
govern the relocation of the child or there is a change in the primary residence
address of an adult affected by the order.
2. To the extent that a provision of
this section conflicts with an existing custody order or enforceable agreement,
this section does not apply to the terms of that order or agreement that govern
relocation of the child or a change in the primary residence address of an
adult.
Preference of Child
Considered in Custody or Visitation Actions
A. In any action or proceeding in
which a court must determine custody or limits of or period of visitation, the
child may express a preference as to which of its parents the child wishes to
have custody.
B. 1. The court shall determine
whether the best interest of the child will be served by the child's expression
of preference as to which parent should have custody or limits of or period of
visitation rights of either parent. If the court so finds, the child may express
such preference or give other testimony.
2. If the child is of a sufficient
age to form an intelligent preference, the court shall consider the expression
of preference or other testimony of the child in determining custody or limits
of or period of visitation. The court shall not be bound by the child's choice
and may take other facts into consideration in awarding custody or limits of or
period of visitation. However, if the child is of a sufficient age to form an
intelligent preference and the court does not follow the expression of
preference of the child as to custody, or limits of visitation, the court shall
make specific findings of fact supporting such action if requested by either
party.
3. There shall be a rebuttable
presumption that a child who is twelve (12) years of age or older is of a
sufficient age to form an intelligent preference.
C. If the child expresses a
preference or gives testimony, such preference or testimony may be taken by the
court in chambers without the parents or other parties present. If attorneys are
not allowed to be present, the court shall state, for the record, the reasons
for their exclusion. At the request of either party, a record shall be made of
any such proceeding in chambers.
Interest on Delinquent Child
Support and Suit Moneys Payments
Interest on delinquent court-ordered
child support payments and payments of suit money.
Court-ordered child support payments
and court-ordered payments of suit moneys shall draw interest at the rate of ten
percent (10%) per year from the date they become delinquent, and the interest
shall be collected in the same manner as the payments upon which the interest
accrues.
Support Orders to Include
Provision for Income Assignment-Voluntary Income
Assignment
A. Every order providing for the
support of a minor child or a modification of such order, whether issued by a
district court or an administrative court, shall contain an immediate income
assignment provision if child support services are being provided under the
state child support plan as provided under Section 237 of Title 56 of the
Oklahoma Statutes, regardless of whether support payments by such parent are in
arrears.
B. In all child support cases
arising out of an action for divorce, paternity or other proceeding in which
services are not being provided under the state child support plan, the district
court shall order the wage of the obligor subject to immediate income
assignment, regardless of whether support payments by such parent are in
arrears, unless:
1. One of the parties demonstrates and the
district court finds there is good cause not to require immediate income
withholding; or
2. A written agreement is reached between the
parties which provides for an alternative arrangement.
C. The obligated party may execute a
voluntary income assignment at any time. The voluntary assignment shall be filed
with the district or administrative court and shall take effect after service on
the payor, as required by Section 1171.3 of Title 12 of the Oklahoma Statutes.
Security or Bond for Payment
of Child Support
The district or administrative court
may order a person obligated to support a minor child to post a security, bond,
or other guarantee in a form and amount satisfactory to the court to ensure the
payment of child support.
Modification, Suspension or
Termination of Income Assignment Order
A. Except as otherwise provided by
subsection B of this section, the person obligated to pay support or the person
entitled to the support may petition the district or administrative court to:
1. Modify, suspend, or terminate the
order for income assignment because of a modification, suspension, or
termination of the underlying order for support; or
2. Modify the amount of income to be
withheld to reflect payment in full of the delinquency by income assignment or
otherwise; or
3. Suspend the order for income
assignment because of inability to deliver income withheld to the person
entitled to support payments due to the failure of the person entitled to
support to provide a mailing address or other means of delivery.
B. If the income assignment has been
initiated by the Department of Human Services, the district court shall notify
the Department of Human Services prior to the termination, modification, or
suspension of the income assignment order.
Child Support
Guidelines
A. Except in those cases where
parties represented by counsel have agreed to a different disposition, there
shall be a rebuttable presumption in any judicial or administrative proceeding
for the award of child support, that the amount of the award which would result
from the application of the following guidelines is the correct amount of child
support to be awarded.
B. The district or administrative
court may deviate from the amount of child support indicated by the child
support guidelines if the amount of support so indicated is unjust, inequitable,
unreasonable, or inappropriate under the circumstances, or not in the best
interests of the child . If the district or administrative court deviates from
the amount of child support indicated by the child support guidelines, the court
shall make specific findings of fact supporting such
action.
C. The court shall not take into
account any stepchildren of such parent in making the determination, but in
making such determination, the court may take into account the reasonable
support obligations of either parent as to only natural, legal, or legally
adopted minor children in the custody of the parent.
D. For purposes of this section and
in determining child support, the noncustodial parent shall be designated the
obligor and the custodial parent shall be designated the
obligee.
E. The child support guidelines are
as follows:
1. All child support shall be
computed as a percentage of the combined gross income of both parents. The Child
Support Guideline Schedule as provided in Section 119 of this title shall be
used for such computation. The child support obligations of each parent shall be
computed. The obligor's share shall be paid monthly to the obligee and shall be
due on a specific date;
2. a. (1) "Gross income", subject to
paragraph 3 of this subsection, includes earned and passive income from any
source, except as excluded in this section.
(2) "Earned income" is defined as
income received from labor, or the sale of goods or services and includes, but
is not limited to, income from:
(a) salaries,
(b) wages,
(c)
commissions,
(d) bonuses,
and
(e) severance
pay.
(3) "Passive income" is defined as
all other income and includes, but is not limited to, income
from:
(a) dividends,
(b) pensions,
(c) rent,
(d) interest
income,
(e) trust
income,
(f) annuities,
(g) social security
benefits,
(h) workers' compensation
benefits,
(i) unemployment insurance
benefits,
(j) disability insurance
benefits,
(k) gifts,
(l) prizes,
and
(m) royalties.
b. Specifically excluded from gross
income are:
(1) actual child support received
for children not before the court, and
(2) benefits received from
means-tested public assistance programs including, but not limited
to:
(a) Temporary Assistance for Needy
Families (TANF),
(b) Supplemental Security Income
(SSI),
(c) Food Stamps,
and
(d) General Assistance and State
Supplemental Payments for Aged, Blind and the Disabled;
3. a. For income from
self-employment, rent, royalties, proprietorship of a business, or joint
ownership of a partnership or closely held corporation, "gross income" is
defined as gross receipts minus ordinary and necessary expenses required for
self-employment or business operations.
b. Specifically excluded from
ordinary and necessary expenses for purposes of this paragraph are amounts
determined by the district or administrative court to be inappropriate for
determining gross income for purposes of calculating child
support.
c. The district or administrative
court shall carefully review income and expenses from self-employment or
operation of a business to determine an appropriate level of gross income
available to the parent to satisfy a child support
obligation.
d. The district or administrative
court shall deduct from self-employment gross income an amount equal to the
employer contribution for F.I.C.A. tax which an employer would withhold from an
employee's earnings on an equivalent gross income amount. A determination of
business income for tax purposes shall not control for purposes of determining a
child support obligation.
e. Expense reimbursements or in-kind
payments received by a parent in the course of employment, self-employment, or
operation of a business shall be counted as income if they are significant and
reduce personal living expenses. Such payments may include but are not limited
to a company car, free housing, or reimbursed meals;
4. a. For purposes of computing
gross income of the parents, the district or administrative court shall include
for each parent, whichever is most equitable, either:
(1) all earned and passive monthly
income,
(2) all passive income, and earned
income equivalent to a forty-hour work week plus such overtime and supplemental
income as the court deems equitable,
(3) the average of the gross monthly
income for the time actually employed during the previous three (3) years,
or
(4) the minimum wage paid for a
forty-hour work week.
b. If equitable, the district or
administrative court may instead impute as gross monthly income for either
parent the amount a person with comparable education, training and experience
could reasonably expect to earn.
c. If a parent is permanently
physically or mentally incapacitated, the child support obligation shall be
computed on the basis of actual monthly gross income;
5. The amount of any preexisting
district or administrative court order for current child support for children
not before the court or for support alimony arising in a prior case shall be
deducted from gross income to the extent payment is actually made under the
order;
6. The amount of reasonable expenses
of the parties attributable to debt service for preexisting, jointly acquired
debt of the parents may be deducted from gross income to the extent payment of
the debt is actually made. In any case where deduction for debt service is made,
the district or administrative court may provide for prospective upward
adjustments of support made possible by the reasonably anticipated reduction or
elimination of any debt service;
7. The results of paragraphs 2, 3,
4, 5, and 6 of this subsection shall be denominated "adjusted gross
income";
8. In cases in which one parent has
sole custody, the adjusted monthly gross income of both parents shall be added
together and the Child Support Guideline Schedule consulted for the total
combined base monthly obligation for child support;
9. After the total combined child
support is determined, the percentage share of each parent shall be allocated by
computing the percentage contribution of each parent to the combined adjusted
gross income and allocating that same percentage to the child support obligation
to determine the base child support obligation of each
parent;
10. a. In cases where shared
parenting time has been ordered by a district court or agreed to by the parents,
the base monthly obligation shall be adjusted. "Shared parenting time" means
that each parent has physical custody of the child or children overnight for
more than one hundred twenty (120) nights each year.
b. An adjustment for shared
parenting time shall be made to the base monthly child support obligation by the
following formula: The total combined base monthly child support obligation
shall be multiplied by one and one-half (1 1/2). The result shall be designated
the adjusted combined child support obligation.
c. To determine each parent's
adjusted child support obligation, the adjusted combined child support
obligation shall be divided between the parents in proportion to their
respective adjusted gross incomes.
d. (1) The percentage of time a
child spends with each parent shall be calculated by determining the number of
nights the child is in the physical custody of each parent and dividing that
number by three hundred sixty-five (365).
(2) Each parent's share of the
adjusted combined child support obligation shall then be multiplied by the
percentage of time the child spends with the other parent to determine the base
child support obligation owed to the other parent.
(3) The respective adjusted base
child support obligations for each parent are then offset, with the parent owing
more base child support paying the difference between the two amounts to the
other parent. The base child support obligation of the parent owing the lesser
amount is then set at zero dollars.
e. The parent owing the greater
amount of base child support shall pay the difference between the two amounts as
a child support order. In no case shall the amount of child support ordered to
be paid exceed the amount of child support which would otherwise be ordered to
be paid if the parents did not participate in shared parenting
time.
f. In no event shall the provisions
of this paragraph be construed to authorize or allow the payment of child
support by the custodial parent to the noncustodial
parent;
11. a. The actual medical and dental
insurance premium for the child shall be allocated between the parents in the
same proportion as their adjusted gross income and shall be added to the base
child support obligation. If the insurance policy covers a person other than the
child before the court, only that portion of the premium attributed to the child
before the court shall be allocated and added to the base child support
obligation.
b. If the obligor pays the medical
insurance premium, the obligor shall receive credit against the base child
support obligation for the obligee's allocated share of the medical insurance
premium.
c. If the obligee pays the medical
insurance premium, the obligor shall pay the obligor's allocated share of the
medical insurance premium to the obligee as part of the base child support
obligation;
12. In cases of split custody, where
each parent is awarded custody of at least one of their natural or legally
adopted children, the child support obligation for each parent shall be
calculated by application of the child support guidelines for each custodial
arrangement. The parent with the larger child support obligation shall pay the
difference between the two amounts to the parent with the smaller child support
obligation;
13. a. The district or
administrative court shall determine the "actual" child care expenses reasonably
necessary to enable either or both parents to:
(1) be
employed,
(2) seek employment,
or
(3) attend school or training to
enhance employment income.
b. The actual child care costs
incurred for the purposes authorized by this paragraph shall be allocated and
paid monthly in the same proportion as base child support.
c. The district or administrative
court shall require the obligee to provide the obligor with timely documentation
of any change in the amount of the child care costs. Upon request by the
obligor, whose requests shall not exceed one each month, or upon order of the
court, the obligee shall provide the documentation of the amount of incurred
child care costs which are related to employment, employment search or education
or training as authorized by this paragraph.
d. If the court determines that it
will not cause detriment to the child or will not cause undue hardship to either
parent, in lieu of payment of child care expenses incurred during employment,
employment search, or while the obligee is attending school or training, the
obligor may provide care for the child during that time;
14. Reasonable and necessary
medical, dental, orthodontic, optometric, psychological, or any other physical
or mental health expenses of the child incurred by either parent and not
reimbursed by insurance may be allocated in the same proportion as the parents'
adjusted gross income as separate items that are not added to the base child
support obligation. If reimbursement is required, the parent who incurs the
expense shall be reimbursed by the other parent within thirty (30) days of
receipt of documentation of the expense;
15. Transportation expenses of a
child between the homes of the parents may be divided between the parents in
proportion to their adjusted gross income;
16. a. (1) Child support orders may
be modified upon a material change in circumstances.
(2) Modification of the Child
Support Guideline Schedule shall not alone be a material change in circumstances
for child support orders in existence on November 1, 1999.
(3) Providing support for children
born to or adopted by either parent after the entry of a child support order
shall not alone be considered a material change in
circumstances.
(4) An order of modification shall
be effective upon the date the motion to modify was filed, unless the parties
agree to the contrary or the court makes a specific finding of fact that the
material change of circumstance did not occur until a later
date.
b. (1) A child support order shall
not be modified retroactively regardless of whether support was ordered in a
temporary order, a decree of divorce, an order establishing paternity,
modification of an order of support, or other action to establish or to enforce
support.
(2) All final orders shall state
whether past due support and interest has accrued pursuant to any temporary
order and the amount due, if any; however, failure to state a past due amount
shall not bar collection of that amount after entry of the final support
order.
c. The amount of a child support
order shall not be construed to be an amount per child unless specified by the
district or administrative court in the order. A child reaching the age of
majority or otherwise ceasing to be entitled to support pursuant to the support
order shall constitute a material change in circumstances, but shall not
automatically serve to modify the order;
17. a. When a child support order is
entered or modified, the parents may agree or the district or administrative
court may require a periodic exchange of information for an informal review and
adjustment process.
b. When an existing child support
order does not contain a provision which requires an informal review and
adjustment process, either parent may request the other parent to provide the
information necessary for the informal review and adjustment process.
Information shall be provided to the requesting parent within forty-five (45)
days of the request.
c. Requested information may include
verification of income, proof and cost of children's medical insurance, and
current and projected child care costs. If shared parenting time has been
awarded by the court, documentation of past and prospective overnight visits
shall be exchanged.
d. Exchange of requested information
may occur once a year or less often, by regular mail.
e. (1) If the parents agree to a
modification of a child support order, their agreement shall be in writing on a
standard agreed order form provided for in Section 120 of this title and shall
comply with the child support guidelines.
(2) The standard agreed order form,
the standard child support guideline calculation form, and the standard
financial affidavit form shall be submitted to the district or administrative
court.
(3) The standard agreed order form
and supporting documents submitted shall be reviewed by the district or
administrative court for approval to confirm that the standard agreed order form
and documents comply with the child support guidelines and that all necessary
parties have been notified. The approved standard agreed order form shall be
filed with the court.
(4) If the standard agreed order
form does not comply with the child support guidelines, or all necessary parties
have not been notified, the matter shall be set for
hearing.
f. (1) If the parents fail to
cooperate in the exchange of information, either parent may move for a
modification hearing or for mediation. The district or administrative court on
its own motion may refer the parents to a mediator.
(2) If referred to mediation, and
modification is subsequently found to be appropriate, the modification shall be
effective on the date the motion was filed.
(3) Costs for mediation, if any,
shall be paid by the parent who failed to cooperate in the exchange of
information. Otherwise, the court may assess costs equally between the parents,
or as determined by the court;
18. Child support orders may include
such provisions as the district or administrative court deems appropriate to
assure that the child support payments to the custodial parent are used for the
support of the child;
19. The district or administrative
court shall require and enforce a complete disclosure of assets by both parents
on a financial affidavit form prescribed by the Administrative Office of the
Courts;
20. Child support orders issued for
prior-born children of the payor may not be modified for the purpose of
providing support for later-born children;
21. The court, to the extent
reasonably possible, shall make provision in an order for prospective adjustment
of support to address any foreseen changes including, but not limited to,
changes in medical insurance, child care expenses, medical expenses, and
extraordinary costs;
22. The social security numbers of
both parents and the children who are the subject of a paternity or child
support order shall be included in the support order summary form provided for
in Section 120 of this title; and
23. A completed support order
summary form shall be presented to the judge with all paternity and child
support orders, and no such order shall be signed by the judge without
presentation of the form.
See: BURGESS v.
BURGESS, 2000 OK CIV APP 122:
This statute is
substantial in nature. It cannot be deemed to be procedural because substantial
rights and duties are involved, and more than the remedy or a procedural matter
is involved. Therefore, it cannot be applied retroactively. Thus, it is apparent
that it cannot be deemed to be applicable here. Only remedial or procedural
statutes may operate retrospectively. Cf. McCormack v. Town of
Granite, 1996
OK 19, 913
P.2d 282 and Testerman v. First Family Life Insurance Company,
1990
OK CIV APP 108, 808
P.2d 703.