Tulsa Attorney BlogState Court Defines Primary Physical Custody in Oklahoma Joint Custody Orders

Decision Also Clarifies ‘Good Faith’

Tulsa child custody attorneysAn Oklahoma Supreme Court decision has added a new twist to the types of legal custody parents may seek after a divorce in Oklahoma. When parents living separately share joint custody of a child, only a parent designated as the primary physical custodian may relocate a child’s residence under terms of Oklahoma’s relocation statute, the court held.

The ruling appears to raise the bar for a parent sharing joint custody who wants to relocate. Unless the other parent agrees to the move or a court has already declared the parent who wants to relocate with a child to be the primary physical custodian, parents in joint custody situations now need to establish primary physical custody before seeking court approval to relocate a child. A parent with sole legal custody would be unaffected by the new decision.

To understand the impact of the court’s decision in Boatman v. Boatman 2017 OK 27, a person needs to first understand concepts of child custody in Oklahoma, and the requirements of Oklahoma’s relocation statute. Each leaves ample room for ambiguity, which the court tried to clarify in Boatman.

Types of Child Custody in Oklahoma

We often tell clients a court can award either joint custody or sole custody. Simple enough. Parents can share authority to make parenting decisions under joint custody or one parent gets the final say under sole custody. In either case, each parent from time to time will have physical custody of the child.

In some contexts, a person might use the term shared custody to mean the same as joint custody. In casual conversation, that might be accurate, but in legal contexts, shared child custody might describe something else, such as shared physical custody, without shared legal custody.

To a layperson’s understanding, the concept of physical custody might seem obvious. Oklahoma’s child custody act says “Physical custody means the physical care and supervision of a child” Okla. Stat. tit 43 § 551-102 (1998).

Any doubt that physical custody means nothing more than being with the child and being responsible for the child at that time would seem resolved in other definitions that refer to physical custody. “Overnight means the child is in the physical custody and control of a parent for an overnight period of at least twelve hours.” Okla. Stat. tit 43 § 118A (2016).

What is a Non-Custodial Parent?

The same definitions section of Oklahoma’s marriage title defines two other custodial concepts. A “custodial person” has physical custody of a child more than 182 days a year. A “non-custodial parent” has physical custody of a child 182 days a year or less. Okla. Stat. tit 43 § 118A (2016).

The definitions, however, do not explain any particular rights or responsibilities of a parent. We find that elsewhere in Oklahoma’s marriage and divorce laws.

Oklahoma law gives courts discretion to award “joint custody” in which parents share “all or some aspects of physical and legal care, custody and control of their children.” In joint custody, parents present a parenting plan jointly or each proposes a plan. The court may accept either plan, with any modifications deemed in the best interest of a child, or reject joint custody and award sole legal custody to one parent.

What is Legal Custody in Oklahoma?

We usually explain “legal custody” to mean decision-making authority, with regard to schooling, medical care, religion and other parenting decisions. Legal custody can either be shared or awarded solely to one parent.

Then we get to this newly adjudicated concept of primary physical custody. According to Boatman, a court must designate primary physical custody before a parent can relocate a child for whom parents otherwise have joint legal custody.

A naive, albeit reasonable attempt to define primary physical custody in Oklahoma might infer that it means the parent who has a child the most. That would be wrong. The parent who has the child less than half the year is the non-custodial parent. The other parent is a “custodial person.”

Yet, the non-custodial parent may very well share equal legal custody – decision-making authority – in other matters. It would be an uncommon situation, but a non-custodial parent could arguably even be designated as the primary physical custodian.

Relying on the Oklahoma Supreme Court’s definition in Boatman, we might define a primary physical custodian in Oklahoma narrowly to mean the parent authorized to file a relocation petition. According to Boatman, the Oklahoma legislature has not provided a means whereby either parent in joint custody situations may petition for relocation without first being designated as primary physical custodian.

When neither parent has been declared primary physical custodian or sole custodian, and parents do not agree on a proposed relocation, neither can petition to move the child until a court declares a primary physical custodian.

When Can a Parent Relocate a Child in Oklahoma?

We are not impressed by the Oklahoma Supreme Court’s effort to clarify Oklahoma parent’s rights to change a child’s residence. Oklahoma law is clear. “A parent entitled to the custody of a child has the right to change his residence…” subject to district court’s authority to limit relocation that would not be in a child’s best interest. Okla. Stat. tit. 43 § 112.2A (2009).

That right is limited, however, by a notification law. When a parent seeks to move a child more than 75 miles from the child’s principle residence for more than 60 days, notification requirements come into play. Those are the requirements the court clarified in Boatman. Okla. Stat. tit. 43 § 112.3 (2008).

That notification statute defines a principle residence as the “primary residence” but says nothing about a primary physical custodian. To support the construct of a primary physical custodian, the court relied on lawmakers’ grammar.

“The use of the phrase ‘the person’” entitled to custody of a child indicates only one person has the ability to relocate the principle residence, the court determined. If lawmakers wanted to let either parent in joint custody families initiate relocation proceedings, they would have referred to “a parent,” the decision states.

Whether lower courts have anticipated how the state’s highest civil court would eventually construe district judges’ references to primary physical custody may be anybody’s guess. The term – if not the concept – appears to have some purchase. The court cited another case where it said a lower court had afforded one parent primary physical custody.

That case – Scocos v Scocos 2016 OK 36 – summarized some aspects of Oklahoma’s relocation notification procedures. A parent who seeks to relocate a child more than 75 miles from a primary residence must first prove the request was made in “good faith.” Upon proving good faith, the burden shifts to the other parent to show the relocation would not be in the child’s best interests.

Prior to the 2017 Boatman decision, some Oklahoma child custody lawyers had used the term “primary custodian” as essentially a synonym for the parent who lives at a child’s designated primary residence. In some of those cases, the term was used merely to indicate in which school district a child would be enrolled.

The Oklahoma Supreme Court decision could retroactively and perhaps inadvertently add new meaning to that term as used in prior divorce decrees.The ruling can grant one parent superior rights with regard to relocation decisions. Where the term primary custodian was used to suggest the preferred school district, courts might now construe that parent to have an exclusive right to initiate relocation to another school district, or to another state.

What is Good Faith in Oklahoma Child Custody?

In Boatman, the court included dicta directed at lower courts it says have “continued to misconstrue what amounts to ‘good faith’ in the contest of custodial parent’s relocation.”

The court alluded to a title of Oklahoma law dealing exclusively with definitions and general provisions. Quoting parts of Okla. Stat. tit. 25 § 9 (1910), the court said “’Good faith’ is ‘an honest intention to abstain from taking unconscientious advantage of another.”

Employment opportunities and financial considerations are legitimate reasons to support relocation, the court said. In Boatman, the mother’s Oklahoma job had been eliminated and her company only offered her another opportunity if she relocated out of state. The Boatman court reversed the Rogers County court’s finding that the relocation notification was not tendered in good faith, but found another reason to affirm the lower court decision.

Until then, the divorced parents had equally shared time with the child, and enjoyed equal decision-making authority. In the divorce, the lower court had said neither party’s rights in parenting the child were superior to the other. The district court had not designated either as a primary physical custodian nor had the court recognized a primary residence.

For that reason, the court upheld the result of the lower court decision to deny the relocation, then sent the case back to the lower court to determine if one parent would be declared primary physical custodian.

The Boatman case offers a resounding example of the reason parents involved in even a friendly divorce need the legal advice of an Oklahoma child custody lawyer. Even if the other parent appears to agree to a relocation, if there is any chance a later dispute will erupt, a move more than 75 miles from a child’s primary or long-time home probably needs to be supported by an order entered in court records.

A parent who is declared primary physical custodian does not have an absolute right to relocate a child, but enjoys an advantage in that they must only show the move was planned in good faith. If the other parent objects, even in joint custody arrangements, a parent who wants to prevent the relocation must then prove the relocation is not in the child’s best interests.

Free Consultation: Tulsa Child Custody Attorney

Any time you anticipate a legal proceeding that will affect your relationship with your child, it is important that you benefit from the advise of a Tulsa family lawyer familiar with the latest trends and decisions in Oklahoma child custody law.

For a free consultation about child custody, joint custody, sole custody, physical custody, relocation or any other legal concern involving your relationship with your child, contact the Tulsa child custody attorney at Wirth Law Office.  Set up a no-cost inititial consultation today by calling 918-879-1681. You may also summarize your concerns and request a consultation by submitting the email form at the top of this page.

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