Terminating Parental Rights Is Not A Quick Fix For A Poor Parenting Relationship

Can one parent waive receiving child support, the other parent waive visitation, and the parents agree to terminate the rights of the non-paying, non-visiting parent?  Family law attorneys answer this question regularly.   The short answer in Oklahoma is no.

The Oklahoma Legislature repealed the statute authorizing private termination of parental rights in 1997.  A parent can still lose his or her parental rights in Oklahoma in the following ways:

  • The state can move to terminate parental rights in a juvenile case for deprived children.
  • A judge in an adoption case can declare a child eligible for adoption without the consent of a parent in some circumstances.

Unless there is an adoption or a juvenile case in the works, living parents keep all the rights and obligations of a parent. A person’s status as a parent is a fundamental constitutional right, subject to due process and equal protection under the law. Your options are limited to enforcing or modifying those rights and obligations.

Sometimes a parent  will try to come back into a child’s life after an extended voluntary separation.  Both parents in that situation must put the interests of the child above their own.  The formerly absent parent may want to rush a relationship to make up for lost time. An active parent who has taken up slack for an absent parent will often resist efforts at reunification out of resentment or anger at the other parent.  Remember, though, this is about the child, and the child’s needs.

Do your best to identify and meet your child’s needs, setting aside your own.  Both parents must strike a balance between a child’s need to have a relationship with both parents, and the child’s need to adjust to changes in family circumstance.  If you cannot strike that balance by  agreement, you may need the help of the family court to oversee custody and parenting time decisions.

by David Tracy

Joint Custody Preserved Despite Parents’ Objections; Relocation Denied

A father’s attempt to relocate with his son and terminate joint child custody with the mother in Oklahoma fails on appeal.

The Setup

The Father and Mother in Caber v. Dahle originally crafted a joint child custody plan with Father having primary physical custody.  He also had ultimate decision-making authority in the event the parties disagreed concerning the upbringing of their child.  The Court ordered Mother to pay child support.

In May 2009, Father filed for a temporary restraining order based on conditions in Mother’s home.  The trial court granted Father an emergency order for temporary custody of the child, suspending mother’s visitation, and appointing a guardian ad litem (GAL) for the child.  Shortly after, Father filed a motion to terminate the joint child custody plan and award him sole custody.  Mother responded with her own motion to terminate joint custody.  In October 2009, while the applications to terminate were still pending, Father filed a Notice of Relocation.  He wanted to move with the child to Pennsylvania.

The Custody Hearing

The custody evidence focused on the following: injuries suffered by the child while in Mother’s care (mother claimed they were common childhood injuries – DHS investigated and could not confirm any abuse); mother’s frequent changes of residence and roommates (she had her own residence by the time of the hearing), and; drug use in father’s home (his wife, whom he was divorcing, tested positive for marijuana while pregnant – they also had hurt each other during a fight while drinking).

The GAL reported concerns that Father’s actions undermined Mother’s role as a parent.  Also, Father was not relocating for employment reasons.  The GAL recommended that the joint child custody plan remain in place, that Mother not associate with one particular person, and that Father’s request to relocate with the child be denied.  The trial court followed the GAL’s recommendation.  Father appealed.

Father’s appeal claimed the trial court should have terminated the joint child custody plan because the parties could not get along.  Father asserts he should be awarded sole custody because the child would be substantially better off with him.  The appellate court notes that “joint custody requires parents who (1) have an ability to communicate with each other; (2) are mature enough to set aside their own differences; and (3) can work together and engage in joint discussions with each other and make joint decisions regarding the best interest of their child.”  In the appellate court’s view, father’s evidence went to conditions in mother’s home, not to an inability to communicate regarding the child’s best interests.

Father also claimed on appeal he should be allowed to relocate with the child because mother never responded to his notice to relocate.  The appellate court held Father did not have the right to determine by himself where the child lived under either the joint child custody plan, or the temporary restraining order giving him temporary custody.  In the Court’s view, Father voluntarily invoked the Court’s jurisdiction to determine the merits of his relocation request.

Child Support

Father also cited Mother for contempt for failure to pay child support.  Although Mother was ordered to pay just over $200.00 per month, she was only paying $50.00 per month.  Mother testified that she earned approximately $900 per month and that any additional money she has available goes toward her attorney fees and fees for supervised visitation with Child.  The trial court found Mother not guilty of indirect contempt but ordered Mother to pay an arrearage at $75 a month.  The appellate court declined to review the factual determination that Mother’s failure to pay was not willful, so she was not in contempt of court.

by David A. Tracy

What Are My Child Custody Options?

There are several forms of custody available under Oklahoma law.

Joint Custody – The term joint custody means the sharing by parents in all or some of the aspects of physical and legal care, custody, and control of their children. Parents apply to the court for a joint child custody plan. The plan sets forth what decisions concerning the children’s upbringing will be shared (and which, if any, will not be shared), and plans for time-sharing. The time-sharing schedule will vary with each family’s circumstance. It may look like a standard visitation schedule, share the children’s time approximately equally between parents, or any of an infinite set of variations.

Sole custody – In this arrangement, one of the parties is awarded exclusive control of decisions regarding the children’s welfare. This is usually accompanied by the right of reasonable visitation with the non-custodial parent. The term reasonable is obviously broad, flexible, and highly fact-dependent.

Split Custody – Under the Oklahoma Child Support Guidelines, split custody involves families “where each parent is awarded custody of at least one of their natural or legally adopted children.”

Birdnesting – This is a form of divided custody. The children stay in place, and the parents rotate in and out of the children’s home on a schedule. The parents may or may not share the alternate living quarters. It requires substantial cooperation between parents and is rarely successful.

How are custody decisions made?

The mantra for all custody determinations is to award custody “in the best interests of the children.” Obviously, determining the best interests of a child in a given case is highly fact-driven and case specific. Here are a few guidelines from statutes and cases.

Domestic Abuse, Mandatory Consideration – There is a rebuttable presumption against awarding custody, establishing legal guardianship or unsupervised visitation to registered sex offenders, anyone living with a registered sex offender, convicted child abusers, persons living with a convicted child abuser, alcohol or drug-dependent persons, domestic abusers, or persons living with a domestic abuser.

Relationship History – The primary proof for an initial award of sole custody involves the relative capacities of the parties to meet the parenting needs of the child. The parent who proves superior skills in meeting the needs of the children will be most likely to prevail. Parents putting together a joint child custody plan will work together to meet the needs of the child. Each can play to the other’s strengths, and shore up the other’s weaknesses as part of co-parenting.

Moral Issues – Proof of immoral behavior must be connected to the possibility of harm to the child (nexus) to be relevant in a custody proceeding. Exposing the child to improper intimate sexual contact with a lover would provide such a nexus. Exposing the child to drug users in the home would provide such a nexus.

Race, Gender & Schooling – Race may not be considered in establishing custody. Oklahoma law specifies that there shall be no gender-based custody preference, and no preference for or against private school, public school or home schooling.

Visitation & Relationship With Other Parent – When it is in the best interests of a child, the court is to ensure “frequent and continuing contact” with both parents. The court should consider, among other factors, which parent is more likely to allow frequent and continuing contact with the other parent.