Custody Determination Is Based on the Best Interest of the Child
Video Transcribed: How does one win back custody of a child in Oklahoma? I’m Tulsa Child Custody Attorney James Wirth, and I’m answering frequently asked questions related to family law. That’s the question that came in is, how do I win back custody?
So it sounds like we’ve got a person here who went to court regarding a custody issue. It sounds like they lost custody. So we’ve got a final order that’s been entered, that’s maybe granting the other party custody and they just got some Oklahoma visitation rights.
And the question is, how do they win it back? Well, the standard to modify is more difficult than the standard to win it in the first place. So when you go to court for an initial custody determination, it’s about the best interest of the child. What is in the best interest of the child, as far as who has custody, meaning-making legal decision, and what is the visitation schedule going to be?
Okay. So once we’ve already done that, the court then presumes that the prior order is perfect. If it wasn’t appealed, then it’s a final order that’s unappealed, then it becomes a done deal at that point. And the court’s not going to really litigate that.
So it means when the court looks at it, the court’s going to presume that that’s a perfect order that decided exactly what was in the best interest of the child at that time, which means if you want to modify that, you’ve got an extra step.
And that extra step is not showing that that prior order was wrong. Because again, they’re not going there. It’s a done deal. That extra step is you’re going to have to show that there’s been a change, a change of circumstances since that last perfect order was entered, that now makes it so the circumstances are different and that the new order needs to be different.
And that is a substantial, permanent and material change. That’s the Gibbon standard that’s required to be met. So once you can prove those things, and so enough time has to go by that enough things have changed, hopefully, something significant has changed, then you can go back to court and say, “We needed new custody determinations due to this permanent, substantial and material change.
And now the best interest of the child is different to have custody with me.” So things that we’ve seen that have been changed of circumstances. Sometimes we’ve got a client that maybe had a drug abuse problem then, which caused them to lose custody.
If they can get that resolved where they’ve done the counseling or inpatient treatment or outpatient treatment. And then they’ve done a nail bed test and UAs, and they’ve shown that they’re clean now and it’s not a problem anymore.
Well, then they were on drugs and an addict and having issues, and now they’re not, that could be a change of circumstances. And that could be a reason. Another one is if the parties have moved or if the child has changed schools to another area.
And maybe the only reason that the physical custody schedule was the way it was, was because the parties lived too far apart, and now they don’t. I mean, often we see we’ve got a parent that’s in the military, and they get limited custody visitation rights because they’re simply unavailable. Well, once that military service is done, completed, and come back, then that’s going to be a change of circumstances to file for a modification.
So that’s a couple of examples, but there are way more possibilities than that. Anything that is permanent, substantial and material can be a change of circumstances that you can take back to the court and say, “We need to reevaluate the best interest now.”
Just know it’s more difficult to do in the second part than it is in the initial part. So you always want to get a good custody order in the first place when you don’t have to show that additional step. If you’re in either one of those circumstances now, you’ve got to talk to an attorney about your specifics. If you want to talk to somebody in my office about that, you go to makelaweasy.com.