Legal Considerations for Unmarried Parents
With the passage of time and the changing of our lifestyles within the USA, there has been a major increase in unmarried parents coming through the Oklahoma courts to fight custody battles for their children and to obtain parents rights. With being unmarried comes yet another layer of requirements when seeking help through the court system. For married parents in Oklahoma, marriage is the first requirement to have standing in the court system to seek any type of custody determination or legal counsel. For unmarried parents in the state of Oklahoma, this does not apply at all. Unmarried parents do not have any rights at all over the children they help create , unless they take the necessary steps to have such matters adjudicated by the courts. The only way for unmarried parents to gain any type of legal parental understanding with the courts is to go through DNA testing and prove paternity, or go through a voluntary agreement and prove paternity. Only after going through the steps to establish paternity, do the courts grant one or both parents the right to seek some type of resolution in custody and visitation cases. Without the ability to establish paternity, the courtrooms are a matter of standing. There is no grandparent or other third party, because the child was not born during a legal marriage.
Oklahoma Paternity Establishment
The Oklahoma Department of Human Services has a website, Oklahoma Child Support Services, that provides all kinds of information about establishing paternity, determining parentage and obtaining DNA testing for child support and other purposes. Paternity is the legal term for establishing the biological link between a parent and a child. In Oklahoma, the birth mother is automatically declared the legal parent at the time of birth. In contrast, fathers can only establish their parental rights through a couple of different methods.
First, an unmarried father can sign Voluntary Acknowledgment of Paternity (VAoP) with the mother, to be filed with the Oklahoma Birth Registrar. Or, if a father doesn’t want to or is unable to sign a VAoP with the mother, or if there is a dispute regarding paternity, he may file a paternity action in the Oklahoma courts. Once paternity is established, the father automatically obtains the right to visitation with the child. A court may also order that the father have joint custody of the child, but having the right to joint custody does not necessarily mean that the father will have any custody time with the child.
The Oklahoma Supreme Court has held that, under the statute pertaining to surrogacy agreements (Unit VIII of the Uniform Parentage Act) "a surrogate shall have the right to prescribed post-birth medical assistance for herself and the resulting child pursuant to Indian Health Services Eligibility Act in the same manner as a natural parent." In agreement with this interpretation of the statute, the DHS refers to surrogate mothers as birth mothers on its website.
The Oklahoma law addressing surrogacy refers to "intended parents," and grants standing to both unmarried couples under the Domestic Relations Act and same-sex couples under the Uniform Parentage Act. The statute specifically mentions that a married couple, a gay couple and an unmarried couple all have the right to issue parentage orders. Obviously, people both gay and unmarried are using surrogacy to "build their families" more than ever. And as mentioned above, the law also grants the same rights to a surrogate mother that are granted to biological mothers.
Oklahoma Child Custody Types
Under the law, custody can be categorized into two main types: legal custody and physical custody. While the Oklahoma statute indicates that custody can be either "sole or joint," the statutory language is in regards to legal custody only. Physical custody is not defined in Oklahoma law—but it is generally understood to mean where the child lives most of the time. When the parents are married, it is presumed in Oklahoma that they will have joint legal and physical custody of their children. When the parents are not married, some form of custody award must also be made.
Sole custody is when one parent is awarded full authority over the decision-making process for the child. This is rare in Oklahoma, and typically occurs in basically two situations. Either both parents agree to sole custody as part of their visitation agreement or there is a finding that the other parent is unfit. Note that unfitness must be proven by a "clear and convincing standard"—this is more than a preponderance of the evidence but less than beyond a reasonable doubt.
Joint custody is actually a term of art with no meaning in the Oklahoma statutes. Although the Oklahoma statutes refer to custody as being "joint or sole," and parents often use the term "joint custody" with each other—there is no such thing as "joint physical custody" in Oklahoma law. In fact, the statute refers specifically to the custody of children as being either "sole or joint legal custody." Other states have adopted the more flexible "joint physical custody" terminology, but Oklahoma has not.
In practical terms, when parents are awarded a "joint custody," what they really have is a joint legal custody arrangement. This means that the parents share decision-making regarding the health, education, and general welfare of the children, but one parent, by agreement of the parties and/or pursuant to a court order, is given ultimate "tie-breaking" authority in those decisions. It is important to note that the parent with "tie-breaking" authority is not a sole custodian; it just means that parent gets the final say. Usually the custodial parent will also make that day-to-day decision making for the child, but even that is subject to review and change by the other parent.
Oklahoma provides for a "child support guidelines worksheet." Pursuant to the worksheet, there is no need to provide any reasons, legal or otherwise, regarding the award of time to either parent. The worksheet is designed so that the diligent attorney can calculate the award of time to either party without needing additional knowledge regarding the family.
The reality of custody awards, however, is often different. There are many social pressures from the Court system to develop sole physical custodian arrangements with joint legal custody. This is the de facto position with most people, perhaps reflecting the lifestyle of most judges. Many judges also believe that the parties owe it to themselves and their children to live very close to each other, pending the ultimate trial. Therefore, in practice, parents are told to remain in the same school district and neighborhood, pending trial, so the child does not have to change schools. Unfortunately, this often results in the parents purchasing two homes in the same school district and neighborhood, which causes unnecessary financial expense on the parties.
Also, the Custodian becomes the "primary" and only caregiver for the child, while the non-custodial parent becomes the "visiting" parent. This is often a confusing concept after trial, when the custodial parent is "dad" rather than "mom," and the visitation parent is "mom" rather than "dad." In these cases, the Court usually makes references to the child’s "principal" residence being with one parent (whomever that may be) and the other parent as a "visitor." However, the status of "parent" is often used at trial and in the face of the "visiting parent" comes from the Court Orders.
How Does the Court Determine Custody
- From the marriage of the parents, a "presumption" arises in favor of the mother because she is more likely to be the primary caregiver.
- The Oklahoma Supreme Court has held in a case involving unmarried parents nearly 20 years ago that "the welfare of a child born out of wedlock is of paramount importance to the State and all the rights of such parent should be subordinated to this principle."
- The Court has also said in Oklahoma that a presumption favoring a parent in custody disputes does not apply to an unmarried mother and father.
- A presumption against the natural father of a child born out of wedlock has been removed by the Court in a 2010 decision.
- The Court noted in that case that its treatment of custody for children born out of wedlock has been inconsistent.
- The State of Oklahoma has also held in recent cases that the best interest of the child is "paramount."
- The Court has found in past decisions that "our statutes place no greater weight to the biological father/mother relationship than to even a non-biological act of marriage."
- The standard of conduct that the Court uses is whether or not the parents have acted in the best interest of the unborn child whose custody is to be determined.
- The outcome of custody determination is dependent upon the willingness of both parents to agree on what is in the best interest of the child involved.
Changing Child Custody Orders
Each modification of custody is based on the circumstances of that case. However, just because you want to modify the terms of custody does not mean the Court will entertain or grant your motion. As a general rule, the Court may not consider the modification of child custody order sounding in change of custody until one (1) year after the date of the order unless all parties to the original order consent of the modification or a showing is made that the child’s present environment may endanger his or her physical health or impair his or her emotional development. 10 O.S. § 1109(E)(2). The requesting party must state specific facts supporting the necessity of the change.
Between the filing of the original order and the expiration of the one (1)-year period, the Court will not make any change affecting the possession of the minor child except:
(1) Divided possession or custody , as provided for in 43 O.S. § 112; or
(2) If good cause is shown or if the matter is a motion in regard to visitation rights.
10 O.S. § 1109(E)(3).
Any party to a modified custody order may seek a further modification under the same showing as required for the original order. Courts may not deny relief because a party has previously successfully brought a modification. Indian Territory Review Bd. v. Decker, 1984 OK 66, ¶ 19, 691 P.2d 1376, 1383 (Okla. 1984); Williams v. Williams, 1959 OK 148, ¶¶ 12-17, 352 P.2d 1082, 1085-87 (Okla. 1959).
In reviewing a motion to modify the trial court uses an abuse of discretion standard. Wilson v. Willoughby, 2009 OK 52, ¶ 16, 217 P.3d 564, 570 (Okla. 2009). The trial court should be allowed broad latitude in fashioning this appropriate remedy as long as the trial court’s decision is within the legal limits prescribed by the relevant statutes. See id. The question of whether a custodial change is warranted will depend on each circumstance and factual scenario.
What Are the Unmarried Parents’ Rights and Responsibilities?
Even though you do not have to be married to have a child in Oklahoma, a custody determination is still required by a court as soon as possible. The law must decide which parent has legal and physical custody over a child if the parents are not married and they can’t agree. Custody proceedings can be almost as important to unmarried parents as divorce proceedings. If you and your partner have had a child together and it does not appear that you are going to be an official couple anytime soon, getting the heads-up on your legal rights and responsibilities could be the best gift you give yourself.
Today’s blog post will take a look at the legal rights of birth parents (read: the legal parents of the child conceived during "the act") with regard to their child born out of wedlock.
All of Oklahoma’s laws related to divorce are located within Title 43 of the Oklahoma Statutes, and this topic is no exception. The only difference is that the terminology is a bit different because the couple is not legally married.
First off, custody can be given to either party, with the deciding factor being the welfare of the child. The important factors for the judge to consider is the parent who already has custody, if he or she does, the demands on their time for employment and study, their financial stability, the home environment, who the child is closer to, whether or not there are older siblings involved, or any evidence that the children involved may suffer from "abuse or neglect." A few other determining factors include the age of the child, the child’s attachment to his or her home, whether or not he or she has been the victim of abuse (emotional or physical), and the ability of the child to adjust to a new home if that is what is required.
Physical custody is decided for the benefit of the child. Visitation can be ordered at any time by the courts. Spousal support is different and not required for unmarried parents. Finally, custodial rights are renounced and visitation can be denied for acts of "horrible or atrocious abuse," or if one of the parents is placed in jail for a crime of moral turpitude.
This is just a basic overview of what the custody determination process looks like. It’s important to get an experienced family law attorney in your corner to make sure that you’re getting the best possible outcome for you and your family.
Legal Aid Resources
Oklahoma has a variety of legal resources and support systems to help unmarried parents throughout the state address custody issues. From understanding how custody is determined to knowing which legal documents are necessary, it’s important to know what options are available.
The Oklahoma Department of Human Services (OKDHS) can assist parents in establishing paternity, which can help determine legal parentage. In addition to explaining the process on its website, OKDHS has 41 field offices that can assist with administration of child support collection and enforcement. The field staff can also provide assistance in addressing basic questions about how to establish paternity, medical support and child care.
The Oklahoma Bar Association, which serves all of the state’s lawyers, has a section on its website where anyone can submit a legal question that will be answered by a lawyer and published on the site. This resource is a convenient way to get general legal information in a timely manner.
The Oklahoma State Courts Network offers a variety of resources on its website that help parents better understand custody matters and how the juvenile and family court systems work in the state . The site provides web-based guides and videos in both English and Spanish to help parents learn more about the judicial process. It’s a helpful tool to better prepare for court proceedings.
The Oklahoma Department of Human Services has also established the Child Support Services (CSS) program to assist families in establishing legal parentage and obtaining fair child support and medical care for their children. The CSS will help locate non-custodial parents and assist in establishing paternity. It can also work with families to establish and enforce child support orders that have been agreed upon in mediation.
In addition to these resources, the Oklahoma State Courts Network provides the forms necessary to initiate a custody case. In fact, it has a directory built into its website that shows the forms necessary for any number of family law matters. The documents can be downloaded, printed and filled out for consideration by the courts.
Navigating the world of custody laws, especially as an unmarried parent, is challenging, but there are many options available to help you throughout the process.