Tulsa Attorney BlogWhat is Primary Custody in Oklahoma Family Law?

Primary Custodian Means That You Have the Right to Utilize the Relocation Statute

Video Transcribed: What is primary custody in Oklahoma? My name is James Wirth and I am a Family law attorney in Tulsa, Oklahoma, and we’re talking about different custody types in Oklahoma. And specifically for this video, we’re talking about primary custody. So what is primary custody?  So I’ve been practicing family law in Oklahoma for a long time. And from the time that I started doing that, there was this term, primary custody, that was used in a lot of different ways, but it didn’t have a lot of defined meaning.

The term primary custody was not located anywhere in Oklahoma statute, was not cited in any case law. But typically, it was used in order to designate for two particular purposes. One, sometimes you’ve got two parents going through a divorce or through a custody battle. And one party as part of negotiations wants to be designated the primary just to have that title.

And sometimes in mediations where you’ve got a third-party mediator that’s pushing both sides to reach compromise, sometimes that’s something one parent can give up and say the other parent can be the primary in order to reach an agreement that this is in the best interest of the children. So it was used a lot of times for that. Somebody wanted the title and they wanted to have it. Another way that it was used, was used to designate where the child was going to be attending school.

So the child is going to be going to school in mom’s school zone or mom’s school district, then we may designate mom the primary custodian. If the child was going to be going to school in dad’s school district, we may designate dad the primary custodian. If otherwise, we have a joint custody agreement where the parties maybe have 50/50 time. So that would determine and make a designation of where the child’s going to be attending school.

However, since the time I’ve been practicing, there has been a case that has now formalized primary custodian, and that was a case related to relocation. And if a party is seeking relocation, they’re saying that they want to move with the child, they have to give notice to the other party that then has 30 days to object, and then there are 30 days for the court to have a hearing on whether that relocation can go forward. And in that case, it was the Boatman case. It’s Boatman v. Boatman. It was decided in 2017, April of 2017.

If you want to look up the case, the citation is 2017 OK 27. And that’s the first case that actually formally recognized primary custodian and gave it some definition. And basically, the only definite it has as it’s applicable here is that the court ruled that if we’re talking joint custody, the relocation provision is not applicable unless one of those parties has been designated the primary custodian.

So if we’ve got a joint custody plan here, and we’ve got essentially perhaps 50/50 visitation, or maybe we don’t even have 50/50 visitation, but neither party has designated the primary. What this decision said, the Oklahoma Supreme Court said in Boatman is that neither party can relocate under the relocation provision if it’s straight joint custody.

Under those circumstances, if you want to relocate, you have to go to court and request that the judge either terminate joint custody and give you sole custody, and then you can request relocation, or that the court designates you a primary custodian. You request a hearing to determine who the primary custodian is. The court determines you’re the primary custodian, which means you have the right to request relocation under relocation provision.

So now formally, primary custodian means that you have the right to utilize the relocation statute. And that doesn’t mean you have the right to relocate, just means you have the right to request it, give them an opportunity to object.

And then if they object, you have a hearing that says whether you could actually relocate or not. So that may give you a little bit of history on the term primary custodian, how it’s been used over time. But if you want to know how it may be specifically used in your case or how it applies to your circumstances, you’re going to want to meet confidentially with an attorney. To set that up with somebody at my office, you can go to makelaweasy.com to speak with an Oklahoma Family Law Attorney.

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