CUSTODY & VISITATION IN OKLAHOMA
A. Petition for Visitation
The ability to successfully petition the court for visitation rights, and the contents of such a petition, depend heavily on the status and relationship of the petitioner to the minor child involved, specifically whether you are a parent or non-parent seeking visitation. Our statutes favor granting visitation rights to parents. The United States Constitution denies such favored status to non-parents. The United States Supreme Court has held that the Fourteenth Amendment provision that no State shall “deprive any person of life, liberty, or property, without due process of law” includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” including the parent-child relationship, which is deemed to be a “liberty” interest. This includes the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054, 2059-2060, 147 L. Ed. 2d 49, 68 USLW 4458, 00 Cal. Daily Op. Serv. 4345, 2000 Daily Journal D.A.R. 5831, 2000 CJ C.A.R. 3199, 13 Fla. L. Weekly Fed. S 365, 2000 WL 712807 (2000).
If you are a biological parent, considering filing an action for visitation, you are most likely the father of a child born out of wedlock. If you were a married parent, your quest for visitation would probably be but part of an action for separate maintenance, annulment, or divorce. Even for unwed fathers, a Petition for Visitation is not a common filing in my experience because usually the quest for visitation rights is part of a proceeding to establish paternity or an alternative to a quest for some degree of custody. Okla. Stat. tit. 43, §112 requires the petition in actions for divorce, legal separation, or annulment to state whether there are minor children and mandates the court to:
- Shall make provision for guardianship, custody, medical care, support, and education of the children;
- 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.
The policy to favor granting visitation rights to a noncustodial parent is further expressed in Okla. Stat. tit. 43, §111.1:
- 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.
- 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.
Moreover, Okla. Stat. tit. 43, §111.3 imposes a duty on the custodial parent to facilitate visitation to the noncustodial parent. Further, “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. Okla. Stat. tit. 43, § 112.
The mother of a child born out of wedlock has custody of the child until determined otherwise by a court of competent jurisdiction. Okla. Stat. tit. 10, § 7800. If the father of a child born out of wedlock is seeking visitation, the action is usually brought as one to adjudicate paternity, with visitation rights incident thereto.
In the context of a child born out of wedlock, the legislative expression favoring visitation rights is stated as follows:
In all cases of paternity and for arrearage of child support, the district court shall make inquiry to determine if the noncustodial parent has been denied reasonable visitation. If reasonable visitation has been denied by the custodial parent to the noncustodial parent, the district court shall include visitation provisions in the support order
Okla. Stat. tit. 10, § 90.5.
Any person other than a parent seeking visitation rights will fall into one of two categories again. Either such person is a grandparent (including a great grandparent), or they are not. In certain limited circumstances a grandparent may have the right to petition for visitation rights over the objection of a parent. Okla. Stat. tit. 43, §109.4. This will be discussed at greater length in section F, below. On the other hand, there is no constitutional or statutory right to visitation for anyone else. K.R. v. B.M.H., 1999 OK 40, 982 P.2d 521, 1999 WL 342769.
Finally, it is important to note that in some contexts, court have drawn a distinction between actions for custody or modification as opposed to actions for visitation or modification. Robinson v. Robinson, 2020 OK CIV APP 68, ¶ 9, 480 P.3d 924, 926, 2020 WL 7906677. On the other hand, for jurisdiction purposes the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) treats them as equivalents – visitation rights just being a subset of custody rights.
B. Petition for Custody
Similar to a petition for visitation, a petition for custody is usually brought incident to some other proceeding such as a paternity action, or action for divorce, legal separation, or annulment. A petition seeking custody must be brought in compliance with the UCCJEA. This requires it to be brought in a forum that has jurisdiction under the act. In addition, requisite information must be included.
A. In a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
- Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
- Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions, and, if so, identify the court, the case number, and the nature of the proceeding; and
- Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
Okla. Stat. tit. 43, § 551-209.
Custody determinations are based upon the best interests of the child. “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.” Okla. Stat. tit. 43, § 109.
Okla. Stat. tit. 43, § 112.5 sets out the list of priorities of preference the court should invoke in awarding custody or guardianship. The order is as follows:
- A parent or to both parents jointly;
- A grandparent;
- A person who was indicated by the wishes of a deceased parent;
- A relative of either parent;
- The person in whose home the child has been living in a wholesome and stable environment including but not limited to a foster parent; or
- Any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
The best interests test the Court must apply is described in greater detail in Okla. Stat. tit. 43, § 112. There shall be neither a legal preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody. 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. The court is required, consistent with best interests, to assure children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing to effect this policy.
“Best interests” of the child can cover a lot of territory. There is, of course, consideration given to the ability of each parent to nurture the child, as well as the demeanor and manner of parenting of each, the emotional, residential, and financial stability of each parent. Interestingly, our statute makes mention of none of these factors. What it does say is most informative:
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.
Okla. Stat. tit. 43, § 112.
C. Motion for a Change of Custody or Visitation
Okla. Stat. tit. 43, § 112(A)(3) gives the court authority to modify or change any order relating to the care and custody of children whenever circumstances render the change proper either before or after final judgment in the action. What that may entail depends entirely on what existing circumstance is sought to be changed. The finality of judgments is a philosophy driving the policies behind these rules. On the one hand, once custody is established, there should be an end to the litigation. On the other hand, children (and their parents) are not static inanimate objects, and circumstances may indeed change. The rules regulating a change will vary depending on whether it is visitation that is sought to be modified, or a joint custody arrangement, or a sole custody arrangement.
The rules regulating a modification of sole custody are the most stringent.
Under these basic rules, the burden of proof is upon the parent asking that custody be changed from the other parent to make it appear: (a) that, since the making of the order sought to be modified, there has been a permanent, substantial and material change of conditions which directly affect the best interests of the minor child, and (b) that, as a result of such change in conditions, the minor child would be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered.
Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482, 485. In this case, the father was granted custody in 1962. Five years later the mother moved the court to modify on the grounds that her circumstances had substantially changed, and she was in a better position than she had been to have custody. She relied upon Oklahoma’s long-time rule, long since abolished, that all other things being equal custody of children of tender years should be awarded to the mother. She claimed that the improvement in her condition justified the application of the tender years doctrine. The Court noted the child was thriving with father. That circumstance rendered the tender years doctrine inapplicable because all things were not otherwise equal. The holding was that the substantial permanent material change of circumstances for the mother was not sufficient to modify custody because there was no showing that child would be substantially better off with a change in custody. There was no evidence of a decline in the father’s parenting, only an improvement in mother’s capacity. The Court concluded that mother had proved, at best, that the child would not be just as well off with her as with father. That was not enough to carry the burden to prove the child would be substantially better off.
On the other hand, modification of a joint custody plan entails an entirely different approach. Our joint custody statute includes the following provisions:
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.
Okla. Stat. tit. 43, § 109. Paragraph E addresses a mutually agreed change to the terms of a joint custody plan. Paragraph F addresses a court-imposed modification of the joint custody plan. Paragraph G addresses a modification that will no longer include joint custody provisions. All three only require proof that the sought change is in the best interests of the child.
[A] change in custody from joint to one parent differs from a change in custody from a one custodial parent to a non-custodial parent. Joint custody will not succeed without the cooperation of the parties. When it becomes apparent to the court that joint custody is not working and it is not serving the child’s best interests, then a material and substantial change of circumstance has occurred, and the joint custody arrangement must be vacated.
Daniel v. Daniel, 2001 OK 117, ¶ 20, 42 P.3d 863, 870, 2001 WL 1612183
Theoretically, modifying a joint custody arrangement is easier than modifying a sole custody arrangement, especially if both parents agree the joint custody plan is not working and each has filed to terminate it. This has not necessarily proven to be the case. In the case of Kilpatrick v. Kilpatrick, 2008 OK CIV APP 94, ¶ 3, 198 P.3d 406, 407, 2008 WL 4891184, the father, who shared joint custody with mother, became upset when mother took the child to a psychologist without telling him. He filed to terminate joint custody seeking sole custody for himself and alleging that Mother had violated the decree about decision-making, had engaged in “coaching, alienation, and attempted brain washing” of the child, and had falsely accused him of sexually abusing the child. He asserted Mother had pressured the child to love him less, had criticized him, and had failed to treat him “with appropriate respect.” Mother also filed her own motion to terminate joint custody and to obtain sole custody. She alleged that she was the proper person to have sole custody, and she cited Father for contempt, alleging that he had enrolled the child in a school without her consent. Even though both parents alleged joint custody was not in the child’s best interest. The court found the child was doing well with the joint custody and refused to terminate joint custody. He was affirmed on appeal. Kilpatrick v. Kilpatrick, 2008 OK CIV APP 94, ¶ 8, 198 P.3d 406, 408, 2008 WL 4891184.
D. Questions of Paternity
Questions of paternity may be addressed by action brought under the Uniform Parentage Act. Okla. Stat. tit. 10, §7700-101, et seq. Proceedings to adjudicate paternity are governed by Article 6 of the Act, Okla. Stat. tit. 10, §7700-601 et seq. Okla. Stat. tit. 43, §109.2 also
provides that in any action concerning the custody of a minor child, the court may determine whether the parties are the parents of the child. If there is a presumed father, the court may even award him temporary custody before genetic testing is completed if that would be in the child’s best interests.
The Uniform Parentage Act defines an “acknowledged” father as one who has signed an affidavit of paternity. An “alleged” father is one who has been alleged to be the father, whether by himself or by others. A ‘presumed” father is one who was married (even in a void or voidable marriage) to the mother at time of birth (or within 300 days before the birth), who married the mother after the birth and asserted his paternity, or live in the same household with the child for the first two years of the child’s life and openly held out the child as his own. An “adjudicated father is one whose paternity has been adjudicated by a court of competent jurisdiction. Various statutes of limitation may apply to the bringing of a paternity action depending on which status the father falls into.
E. Termination of Parental Rights
Except in connection with an adoption, only the District Attorney, or an attorney for the minor child has standing to terminate parental rights in a Juvenile proceeding. Okla. Stat. tit. 10A, § 1-4-901. In connection with an adoption, the child placing agency, attorney, or prospective adoptive parent who has received consent from the other parent (or in the case of a child born out of wedlock to whom the child has been relinquished) may seek termination of parental rights. Termination would be on the same grounds for which the court could find that the consent to adoption of that parent is not required. Including if the parent willfully failed, refused, or neglected to contribute to the support of the child for at least 12 months of the last 14 months before filing, or who fails to establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child. Okla. Stat. tit. 10, § 7505-4.2
F. The Rights of Grandparents and Other Relatives
Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054, 2059-2060, 147 L. Ed. 2d 49, 68 USLW 4458, 00 Cal. Daily Op. Serv. 4345, 2000 Daily Journal D.A.R. 5831, 2000 CJ C.A.R. 3199, 13 Fla. L. Weekly Fed. S 365, 2000 WL 712807 (2000), quoted above established that a parent’s Constitutional right to the parent-child relationship without unwarranted interference from the state extends to the right to control who has access or visitation with the parent’s child. The Oklahoma Supreme court had already reached the same conclusion. In re Herbst, 1998 OK 100, ¶ 5, 971 P.2d 395, 396, 1998 WL 725192. At that time Okla. Stat. tit. 10, §5 granted all grandparents the right to visitation if the court found it to be in the child’s best interests. The court held:
The statute which vests district court with authority to grant grandparental visitation if court deems such visitation to be in child’s best interests impermissibly infringed upon parents’ fundamental rights under state and federal constitutions to companionship, care, custody and management of their child, where parents were married and living with child as intact nuclear family, both parents opposed any visitation of child by grandfather, and there was no allegation that parents were unfit or that child was inadequately cared for or in danger of harm.
In re Herbst, 1998 OK 100, 971 P.2d 395, 1998 WL 725192.
The current revised version of that statute is now found at Okla. Stat. tit. 43, §109.4:
A. 1. Pursuant to the provisions of this section, any grandparent of an unmarried minor child may seek and be granted reasonable visitation rights to the child which visitation rights may be independent of either parent of the child if:
a. the district court deems it to be in the best interest of the child pursuant to subsection E of this section, and
b. there is a showing of parental unfitness, or the grandparent has rebutted, by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child, and
c. the intact nuclear family has been disrupted in that one or more of the following conditions has occurred:
(1) an action for divorce, separate maintenance or annulment involving the grandchild’s parents is pending before the court, and the grandparent had a preexisting relationship with the child that predates the filing of the action for divorce, separate maintenance or annulment,
(2) the grandchild’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled,
(3) the grandchild’s parent who is a child of the grandparent is deceased, and the grandparent had a preexisting relationship with the child that predates the death of the deceased parent unless the death of the mother was due to complications related to the birth of the child,
(4) except as otherwise provided in subsection C or D of this section, legal custody of the grandchild has been given to a person other than the grandchild’s parent, or the grandchild does not reside in the home of a parent of the child,
(5) one of the grandchild’s parents has had a felony conviction and been incarcerated in the Department of Corrections and the grandparent had a preexisting relationship with the child that predates the incarceration,
(6) grandparent had custody of the grandchild, whether or not the grandparent had custody under a court order, and there exists a strong, continuous grandparental relationship between the grandparent and the child,
(7) the grandchild’s parent has deserted the other parent for more than one (1) year and there exists a strong, continuous grandparental relationship between the grandparent and the child,
(8) except as otherwise provided in subsection D of this section, the grandchild’s parents have never been married, are not residing in the same household and there exists a strong, continuous grandparental relationship between the grandparent and the child, or
(9) except as otherwise provided by subsection D of this section, the parental rights of one or both parents of the child have been terminated, and the court determines that there is a strong, continuous relationship between the child and the parent of the person whose parental rights have been terminated.
- The right of visitation to any grandparent of an unmarried minor child shall be granted only so far as that right is authorized and provided by order of the district court.
B. Under no circumstances shall any judge grant the right of visitation to any grandparent if the child is a member of an intact nuclear family and both parents of the child object to the granting of visitation.
C. If one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings shall not terminate any preexisting court-granted grandparental rights belonging to the parents of the deceased natural parent unless the termination of visitation rights is ordered by the court having jurisdiction over the adoption after opportunity to be heard, and the court determines it to be in the best interest of the child.
D. 1. If the child has been born out of wedlock and the parental rights of the father of the child have been terminated, the parents of the father of the child shall not have a right of visitation authorized by this section to the child unless:
a. the father of the child has been judicially determined to be the father of the child, and
b. the court determines that a previous grandparental relationship existed between the grandparent and the child.
2. If the child is born out of wedlock and the parental rights of the mother of the child have been terminated, the parents of the mother of the child shall not have a right of visitation authorized by this section to the child unless the court determines that a previous grandparental relationship existed between the grandparent and the child.
3. Except as otherwise provided by this section, the district court shall not grant to any grandparent of an unmarried minor child, visitation rights to that child:
a. subsequent to the final order of adoption of the child; provided however, any subsequent adoption proceedings shall not terminate any prior court-granted grandparental visitation rights unless the termination of visitation rights is ordered by the court after opportunity to be heard and the district court determines it to be in the best interest of the child, or
b. if the child had been placed for adoption prior to attaining six (6) months of age.
E. 1. In determining the best interest of the minor child, the court shall consider and, if requested, shall make specific findings of fact related to the following factors:
a. the needs of and importance to the child for a continuing preexisting relationship with the grandparent and the age and reasonable preference of the child pursuant to Section 113 of this title,
b. the willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents,
c. the length, quality and intimacy of the preexisting relationship between the child and the grandparent,
d. the love, affection and emotional ties existing between the parent and child,
e. the motivation and efforts of the grandparent to continue the preexisting relationship with the grandchild,
f. the motivation of parent or parents denying visitation,
g. the mental and physical health of the grandparent or grandparents,
h. the mental and physical health of the child,
i. the mental and physical health of the parent or parents,
j. whether the child is in a permanent, stable, satisfactory family unit and environment,
k. the moral fitness of the parties,
l. the character and behavior of any other person who resides in or frequents the homes of the parties and such person’s interactions with the child,
m. the quantity of visitation time requested and the potential adverse impact the visitation will have on the customary activities of the child, and
n. if both parents are dead, the benefit in maintaining the preexisting relationship.
- For purposes of this subsection:
a. “harm or potential harm” means a showing that without court-ordered visitation by the grandparent, the child’s emotional, mental or physical well-being could reasonably or would be jeopardized,
b. “intact nuclear family” means a family consisting of the married father and mother of the child,
c. “parental unfitness” includes, but is not limited to, a showing that a parent of the child or a person residing with the parent:
(1) has a chemical or alcohol dependency, for which treatment has not been sought or for which treatment has been unsuccessful,
(2) has a history of violent behavior or domestic abuse,
(3) has an emotional or mental illness that demonstrably impairs judgment or capacity to recognize reality or to control behavior,
(4) has been shown to have failed to provide the child with proper care, guidance and support to the actual detriment of the child. The provisions of this division include, but are not limited to, parental indifference and parental influence on his or her child or lack thereof that exposes such child to unreasonable risk, or
(5) demonstrates conduct or condition which renders him or her unable or unwilling to give a child reasonable parental care. Reasonable parental care requires, at a minimum, that the parent provides nurturing and protection adequate to meet the child’s physical, emotional and mental health.
The determination of parental unfitness pursuant to this subparagraph shall not be that which is equivalent for the termination of parental rights, and
d. “preexisting relationship” means occurring or existing prior to the filing of the petition for grandparental visitation
F. 1. The district courts are vested with jurisdiction to issue orders granting grandparental visitation rights and to enforce visitation rights, upon the filing of a verified petition for visitation rights or enforcement thereof. Notice as ordered by the court shall be given to the person or parent having custody of the child. The venue of such action shall be in the court where there is an ongoing proceeding that involves the child, or if there is no ongoing proceeding, in the county of the residence of the child or parent.
- When a grandparent of a child has been granted visitation rights pursuant to this section and those rights are unreasonably denied or otherwise unreasonably interfered with by any parent of the child, the grandparent may file with the court a motion for enforcement of visitation rights. Upon filing of the motion, the court shall set an initial hearing on the motion. At the initial hearing, the court shall direct mediation and set a hearing on the merits of the motion.
- After completion of any mediation pursuant to paragraph 2 of this subsection, the mediator shall submit the record of mediation termination and a summary of the parties’ agreement, if any, to the court. Upon receipt of the record of mediation termination, the court shall enter an order in accordance with the parties’ agreement, if any.
- Notice of a hearing pursuant to paragraph 2 or 3 of this subsection shall be given to the parties at their last-known address or as otherwise ordered by the court, at least ten (10) days prior to the date set by the court for hearing on the motion. Provided, the court may direct a shorter notice period if the court deems such shorter notice period to be appropriate under the circumstances.
- Appearance at any court hearing pursuant to this subsection shall be a waiver of the notice requirements prior to such hearing.
- If the court finds that visitation rights of the grandparent have been unreasonably denied or otherwise unreasonably interfered with by the parent, the court shall enter an order providing for one or more of the following:
a specific visitation schedule,
b. compensating visitation time for the visitation denied or otherwise interfered with, which time may be of the same type as the visitation denied or otherwise interfered with, including but not limited to holiday, weekday, weekend, summer, and may be at the convenience of the grandparent,
c. posting of a bond, either cash or with sufficient sureties, conditioned upon compliance with the order granting visitation rights, or
d. assessment of reasonable attorney fees, mediation costs, and court costs to enforce visitation rights against the parent.
7. If the court finds that the motion for enforcement of visitation rights has been unreasonably filed or pursued by the grandparent, the court may assess reasonable attorney fees, mediation costs, and court costs against the grandparent.
G. In addition to any other remedy authorized by this section or otherwise provided by law, any party violating an order of the court made pursuant to this section, upon conviction thereof, shall be guilty of contempt of court.
H. Any transportation costs or other costs arising from any visitation ordered pursuant to this section shall be paid by the grandparent or grandparents requesting such visitation.
I. In any action for grandparental visitation pursuant to this section, the court may award attorney fees and costs, as the court deems equitable.
J. For the purposes of this section, the term “grandparent” shall include “great-grandparent.”
Section A of this statute requires three separate findings before the grandparent is entitled to court ordered visitation. First, it must be in the child’s best interests. Second there must be evidence to the parent(s)’s unfitness or clear and convincing evidence to rebut the presumption that a fit parent is acting for the best interest of the child, or alternatively that without court-ordered visitation by the grandparent, the child’s emotional, mental or physical well-being could reasonably or would be jeopardized. Third, there must be proof the intact nuclear family has been disrupted in one of the 9 ways listed in the statute. All three requirements must be met, although the statute provides three alternative ways to meet the second requirement and nine alternative ways to meet the third requirement.
G. UCCJEA: Uniform Child Custody Jurisdiction and Enforcement Act
The purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, Okla. Stat. tit. 43, §551-101, et seq. (“UCCJEA”), are set forth in the official comment to section 551-101:
(1) Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being;
(2) Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
(3) Discourage the use of the interstate system for continuing controversies over child custody;
(4) Deter abductions of children;
(5) Avoid relitigation of custody decisions of other States in this State;
(6) Facilitate the enforcement of custody decrees of other States.
The single most important concept of the UCCJEA is that the Home State of the child is the only jurisdiction in which a child custody proceeding can be initiated if one exists except in emergency situations.
“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six (6) months of age, the term means the state in which the child lived from birth with the parent or person acting as a parent. A period of temporary absence of the parent or person acting as a parent is part of the period;
Okla. Stat. tit. 43, § 551-102. The second most important concept is that once a court has jurisdiction to enter an initial custody order, that court is the only court that can modify the order unless all the parties and the child have left the jurisdiction OR the court that entered the initial order decides it is no longer the proper forum. Another very significant provision is that in cases of potential competition between or among courts for jurisdiction, the judges of the different venues are required to communicate directly with each other.
The UCCJEA does not apply to adoptions or proceedings for emergency medical care of a child. To the extent application of the UCCJEA would conflict with the Oklahoma Indian child Welfare Act, Okla. Stat. tit.10, §40, et seq.(“OICWA”), the OICWA will control. If there is no Home State, Stat. tit. 43, §551-201 provides that Oklahoma may assert jurisdiction if the child and one parent are both present and there is substantial evidence her concerning the child’s care, training protection and personal relationships, or if no other state has jurisdiction at all. Stat. tit. 43, §551-204 authorizes Oklahoma to exercise jurisdiction in the event of an emergency if the child is in Oklahoma and has been abandoned here or an emergency exists requiring the child, a sibling or parent to be protected from mistreatment or abuse.