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Video Transcribed:
If I take a plea deal on domestic violence in Oklahoma, does that automatically mean I’m an unfit parent? I’m Tulsa family law attorney, James Wirth, and that’s the question we have here. We’re doing frequently asked questions related to family law in Oklahoma, and that’s the situation.
We’ve got a father here who’s being accused of domestic violence. And he says, he’s got evidence that shows that he’s innocent, but he’s having trouble getting into court because things keep getting delayed due to the pandemic and other reasons, and he’s wondering if he should just take a plea deal so you can get into court and fight regarding custody.
And his question was whether taking a plea deal is going to cause him to be automatically determined to be unfit. And there’s a very good reason for him to be concerned about that because actually, there are three statutes in Oklahoma that deal with this issue and none of them are going to be good for somebody who takes a plea deal or gets a conviction for domestic violence.
So let’s go over it one by one. Okay. So the first statute is title 43, section 112.2, and it’s got two parts to it. And the first part is in subsection A, and that section says basically, evidence of domestic violence needs to be heard and considered by the judge.
So that’s specifically the legislature telling the court, “You need to look at this. There’s evidence of domestic violence and you need to consider it when you’re determining custody and visitation.” And then there’s a second part, subsection B, and that’s where it gets more strenuous.
And there, it says that there shall be a rebuttable presumption that it is not in the best interest of a child to have custody or guardianship granted to a person who has been convicted of domestic violence or is it living with a person who’s been convicted of domestic violence.
So the first part says it’s important, the court needs to take it in as evidence, needs to consider it when talking about custody visitation. And then the second part says it creates a rebuttable presumption that somebody who has a conviction or is living with somebody who has a conviction for domestic violence should not have custody or guardianship. However, that subsection B does not mention visitation.
It’s silent on visitation, but that’s where we get to the next statute. So there, we’ve got title 43, section 109.3, and it’s a little more special. It says, “In every case involving the custody of guardianship or visitation with the child, the court shall consider evidence of domestic violence, stalking and/or harassing behavior properly brought before it.
If the occurrence of domestic violence, stalking, or harassing behavior is established by a preponderance of the evidence…” So that’s kind of a middle ground level. It’s more than probable cause, but it’s less than clear and convincing, and it’s less than beyond a reasonable doubt that is required for the criminal conviction.
So for this statute, it only requires a preponderance of the evidence, which means more likely than not. That’s triggered here, “That creates a rebuttable presumption that it is not in the best interest of the child to have custody, guardianship or unsupervised visitation granted to the person against whom domestic abuse, stalking, harassing behavior has been established.” So this one does visitation. It creates a presumption for that person not to have unsupervised visitation, leaving the door open to supervised visitation.
Then we’ve got the third statute and that is title 43, section 111.4. And that is more not what the court is required to do, but what the other parent or legal custodian is required to do. And it says, “In cases, in which there is evidence to substantiate suspected or confirmed child abuse and neglect, visitation shall be suspended.”
So this statute is directed towards parents saying that you can refuse to give visitation to somebody if you have concerns, good-faith concerns, good-faith concerns of domestic violence, or child abuse, or child neglect, specifically childhood abuse, or child neglect.
And then it raises it up and says, “You are required to refuse visitation if there’s evidence to substantiate suspected or confirmed child abuse.” So these three statutes are potentially triggered for somebody who’s being accused of domestic violence or convicted of domestic violence, and it does make your custody case extremely difficult because although rebuttable presumptions by definition can be rebutted, it can be difficult when we’re talking about these types of allegations.
So you may not want to take that plea deal, but you want to talk to your attorney about your specific circumstances. If you need an attorney or have a question for an Oklahoma Fathers Rights attorney, you can contact my office by going to makelaweasy.com.
