Oklahoma Case Update – Child Relocation Notice Should Be Sent By Certified Mail

by David A. Tracy

The right of a parent to custody, companionship and management of a child is a fundamental constitutional right.  When one parent plans to relocate so as to make an existing time-sharing arrangement unworkable, Oklahoma has a law requiring the moving parent to notify the other by mail.  The recent case of Plumlee v. Plumlee tells us that future notices should be sent by certified mail, return receipt requested, at a minimum.

The Mother and Father in this case divorced in 2008.  Less than a month later, Mother filed her first notice of relocation.  Father filed a timely objection under Oklahoma’s relocation statute, 43 O.S. §112.3.  The trial court sustained Father’s objection, so Mother did not move with the child.

Mother filed another notice of relocation about 6 months after the order on Father’s first successful objection.  She tried to serve the notice on Father by certified mail, and the envelope came back marked “Refused.”  Mother filed another relocation notice because she delayed her move date, and Mother’s certified mail notice was again returned marked “Refused.”

Mother relocated with the child.  Father filed an objection to the move less than a month after Mother’s relocation.  Father asked the court to either enter a permanent order banning Mother’s relocation with the child, or for the Court to award him physical custody. The trial court granted Mother’s motion to dismiss Father’s objection as untimely.

Father raised the following issues in his appeal:

  • Father’s objection was timely and the district court should have held an evidentiary hearing, and;
  • Mother is precluded from succeeding in her second notice to relocate so soon after the court’s denial of her first attempt to relocate.

As regards the timeliness of Father’s objection, the Oklahoma Court of Civil Appeals looked to the relocation statute.  It requires only notice “by mail to the last-known address of the person to be notified.”  Mother in this case used certified mail, which is one of the methods Oklahoma allows for formal notice of pending matters. The court held in this case that a parent required to satisfy the notification by mail provision of the relocation statute must use these more formal methods.  Notice by first class mail only is not enough.  The Court determined that the fundamental family and due process issues involved in relocating a child require more formal notice than that set forth in the statute.  Even though Father refused the certified mail, the court found the notice sufficient.  Father’s objection was untimely, and no hearing needed to be held on the objection.

Regarding claim preclusion, the court rejected Father’s claim that Mother could not file multiple relocation notices.  The relocation statute does not limit a party to one effort at relocation.  The doctrine of issue preclusion may apply to successive notices to relocate, but only if there is a final determination of a material issue common to both cases.  Father could not show in this case why the court denied Mother’s first attempt at relocation.  As a result, father could not prove the trial court was precluded from allowing relocation based on Mother’s second notice.

Gay Marriage Laws Across the U.S. – Where Do We Stand?

By David A. Tracy

Washington this week becomes the 7th state to authorize marriages between persons of the same gender.  The law does not take effect right away.  Opponents of the law have until June 6th to gather enough petition signatures to force a statewide vote on the law in November.  Assuming the petition drive falls short, or the law survives a vote of the people, this is the list of U.S. states allowing same-sex marriage licenses (and the year they were first authorized).

Connecticut (2008)
District of Columbia (2010)
Iowa (2009)
Massachusetts (2004)
New York (2011)
New Hampshire (2010)
Vermont (2009)
Washington (2012)

The following states allow “civil unions” for same-sex couples, with all the rights of opposite-sex married couples.

Delaware
Hawaii
Illinois
New Jersey
Rhode Island

The following states allow “domestic partnerships” for same-sex couples, but don’t grant all the rights enjoyed by opposite-sex married couples.

Nearly all:
California
Oregon
Nevada
Washington

Some:
Hawaii
Maine
Wisconsin
District of Columbia

The following states have statutes passed by their legislatures that define marriage as between a man and a woman

Delaware
Hawaii
Illinois
Indiana
Minnesota
North Carolina
Pennsylvania
West Virginia
Wisconsin
Wyoming

The following states have constitutional amendments that define marriage as between a man and a woman:

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Florida
Georgia
Idaho
Kansas
Kentucky
Louisiana
Michigan
Mississippi
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia

In 2004, Oklahoma voters approved an amendment to the Oklahoma Constitution banning same-sex marriages.  Oklahoma Constitution, Article 2, Sec. 35, states:

“A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.”

Since 1996, the federal government has denied benefits to same-sex couples under the Federal Defense of Marriage Act. Same-sex couples married under their state’s law cannot file joint federal income tax returns and take deductions available in traditional marriages. There are no spousal Social Security benefits. They can’t take advantage of the Family and Medical Leave law that protects one’s job and health insurance during emergency absences.

UPDATE:  On February 22, 2012, a federal district judge in California ruled the Defense of Marriage Act (DOMA) unconstitutional.  The court held that DOMA violated the equal protection rights of a lesbian married in California who could not get health insurance benefits for her spouse through her employer.  Read the opinion here.

Sources:

Gregoire signs gay marriage into law, Seattle Times, Feb. 13, 2012 http://bit.ly/wOUi3B

Gay marriage in the US: seven ways states differ on the issue, Christian Science Monitor, Feb. 9, 2012 http://bit.ly/zE9FGo

Status of Marriage Equality Worldwide, Lambda Legal  http://bit.ly/AecGPU

Oklahoma Constitution, Article 2, Sec. 35 http://bit.ly/xBp28r

Federal Defense of Marriage Act
http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/content-detail.html

Senate panel OKs repeal of Defense of Marriage Act, USA Today, Nov. 10, 2011  http://usat.ly/upt5bV

Same-Sex Marriage, Suffolk University Law School  http://bit.ly/gVJ6BR

Florida Judge Drops The Ball In Domestic Assault Case

by David A. Tracy

Judge John Hurley of Broward County, Florida this week ordered a domestic assault suspect to treat his wife to a night of bowling and Red Lobster, and to start marriage counseling within a week.

The man appeared before Judge Hurley at a bond hearing.  The man’s wife appeared and told the Judge she wanted her husband to come home.  When questioned by the Judge, she said the two were arguing because the man had failed to wish her a happy birthday.  According to the arrest affidavit, the man pushed his wife onto their couch and put his hand on her neck. He held up his fist to hit her, but never struck her.  The woman called police.  It was the second time she had called about a domestic disturbance with this man.

The woman told Judge Hurley under questioning that she was not “hurt,” and that she was not afraid of her husband.  Further questioning by the Judge revealed that the woman enjoyed bowling and eating at Red Lobster.  The Judge then declined to enter a “no contact” order and issued his unusual ruling.  “He’s going to stop by somewhere and he’s going to get some flowers,” Hurley said. “And then he’s going to go home, pick up his wife, get dressed, take her to Red Lobster. And then after they have Red Lobster, they’re going to go bowling.”  The next day, the couple is to select a marriage counselor and make an appointment.

See a video of the bond hearing here.

I understand Judge Hurley was trying to be creative in what he considered a low-risk situation.  However, the ruling demonstrates a lack of understanding of the cycle of domestic violence.  It was insensitive of the Court to treat this as a minor matter simply because the woman did not suffer visible physical injuries, and did not claim an ongoing fear of her husband.

Image courtesy Domestic Violence Intervention Services, Tulsa, Oklahoma

The arrest affidavit in the Broward County case described all the elements of a domestic assault and battery.  The cycle of domestic violence suggests this violent episode will be followed by a period of remorse by the abuser.  If the cycle is not broken at this time, it enters a new phase.  The victim forgives the abuser, and the relationship will seem repaired for a time.  For those caught in the cycle, the stress will build.  The abuser will become increasingly possessive, controlling and threatening, until the next violent episode erupts.  The cycle is once again complete, and another phase begins.

The problems for this Broward County couple will not be fixed with flowers, dinner and bowling.  Counseling would help, but without followup, it won’t likely last beyond one or two sessions.  Assuming the facts in the affidavit to be true, Judge Hurley ordered an abuser to take his victim to dinner.  The cycle of domestic violence will continue.

Please leave your comments, whether you agree or disagree.

Automatic Document Exchange Now Required In New Oklahoma Divorce Cases

Oklahoma law now requires an automatic document exchange between parties to a divorce case.  When a respondent is served with a summons, or when the respondent files any response, a thirty-day countdown starts.  Within that time, unless otherwise agreed by the parties in writing, the petitioner and respondent must each deliver to the other the following documents:

(1) the federal and state income tax returns of each party for the past two years, and any nonpublic, limited partnership and privately held corporate returns for any entity in which either party has an interest, together with all supporting documentation for the tax returns.  If a return is not completed at the time of disclosure, the parties shall provide the documents necessary to prepare the tax return of the party.

(2) two months of the most recent pay stubs from each employer for whom the party worked,

(3) statements for the past six months for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the minor child or children of the parties,

(4) documentation regarding the cost and nature of available health insurance coverage for the benefit of either party or the minor child or children of the parties,

(5) documentation regarding the cost and nature of employment or educationally related child care expenses incurred for the benefit of the minor child or children of the parties, and

(6) documentation regarding all debts in the name of either party individually or jointly, showing the most recent balance due and payment terms.

If you do not have or cannot get any of these documents within a month, you must sign an affidavit stating the specific document which is not available, the reasons the document is not available, and what efforts you made made to obtain the document. As more information becomes available, there is a continuing duty to supplement the disclosures.

Your lawyer needs this information as well.  It is good to exchange it sooner rather than later.  There will likely be more documents needed, including deeds to real estate, car titles, retirement account and cash value life insurance information.  They are not, however, part of the automatic document exchange required by law.

Source:  43 O.S. §110.