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EspañolCan I get temporary emergency custody?
When you file a motion for an emergency custody hearing in Oklahoma, it must include either:
- a police report, a report from the Department of Human Services, or a report from another independent source that shows that:
- the child is in surroundings that endanger his/her safety; and
- if such conditions continue, the child would likely be subject to irreversible harm; or
- a notarized affidavit from someone with first-hand knowledge that the child is in surroundings that endanger the safety of the child and that not granting emergency custody would likely cause irreversible harm to the child.1
The judge is supposed to hold a hearing within 72 hours of when you file the motion. If the judge doesn’t conduct a hearing in that time frame, you can bring the motion to the presiding judge of the judicial district, who is supposed to conduct an emergency custody hearing within 24 hours.1
You may want to consult a lawyer before filing for emergency custody. To find one in your area, visit the Oklahoma Finding a Lawyer page.
1 43 O.S. § 107.4(A)
How will a judge decide custody?
A judge will decide custody based on what s/he thinks is the best interest of the child. This includes the physical, mental, and moral welfare of your child.1 Some factors a judge may consider are:
- any history of causing physical harm, bodily injury, assault, verbal threats, stalking, or harassing behavior, or causing another person or a minor child to fear of any of these;2
- which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent;3
- a pattern of failing to allow court-ordered visits;4
- the preference of the child, if the judge believes the child is old and mature enough to form an intelligent preference;5
- the parents’ preference;
- the mental and physical health of the parents;
- the relationship between the parents and the child;
- if either parent is a registered sex offender;
- any conviction for child abuse or domestic violence;
- alcohol and illegal drug use or abuse; and
- any probable (foreseeable) risk of serious (material) harm.6
1 43 O.S. § 109(A)
2 43 O.S. § 109(I)(5)
3 43 O.S. § 112(C)(3)(a)
4 43 O.S. § 112(D)(1)
5 43 O.S. § 113
6 OKLaw.org - Custody and Visitation Considerations
Note: If your case is going to trial, you can ask the judge to make specific “findings of fact” regarding the reasons for the custody decision. In other words, the judge will spell out why s/he decided the way s/he did.
Can the child choose who has custody of him/her?
If the judge believes that it is in the child’s best interest, the judge can allow the child to tell his/her preference as to which parent should have custody or regarding limits of periods of visitation. The judge might also allow the child to testify in court about other matters.1 The child’s testimony and preference can be given privately to the judge without the parents or attorneys present.2 However, if the court has appointed a guardian ad litem for the child, s/he will be present with the child while being interviewed by the judge. The parents, attorneys, or other parties can suggest questions or topics they want the judge to consider in the child’s interview, but the judge does not have to use those.3 At the request of either party, the judge will record the child’s interview. However, the parties are only entitled to get the transcript if a parent appeals the custody or visitation order.4
Generally, if the judge thinks that the child is old and mature enough to decide which parent is best for custody, the judge will then consider this, among many other factors. The child’s choice does not bind the judge. In Oklahoma, the courts assume that children 12 years or older are old enough to tell the judge their preference, but a parent can try to prevent this by showing evidence that the child is not mature enough.5
1 43 O.S § 113(A), (B)
2 43 O.S § 113(D)
3 43 O.S § 113(E)
4 43 O.S § 113(F)
5 43 O.S § 113(C)
How much does it cost to file for custody? Do I need a lawyer?
The cost to file for custody varies from case to case. If you are paying a lawyer, your legal fees could depend on the level of conflict between you and the other parent and how much your attorney charges. Also, there are court costs such as filing fees and possibly serving the papers on the other parent. If you cannot afford to pay the costs, you can ask to file an affidavit, known as an affidavit in forma pauperis or a pauper’s affidavit, in which you inform the judge that you are a low-income person and ask the judge not to make you pay the court costs.1 It will be up to the judge to decide whether to waive the court costs or not.
If you cannot afford an attorney, you may be able to get free legal services – you can find organizations near you on our Oklahoma Finding a Lawyer page. If you cannot have an attorney represent you, our Preparing for Court – By Yourself section may be helpful to you.
Note: If you have been the victim of domestic abuse or stalking and are seeking custody of your child, the court can order the abuser to pay for your attorney’s fees and costs of the custody proceedings if you request this. You would first have to prove to the judge you are currently being stalked or have been stalked or that you are the victim of domestic abuse by the other parent for the judge to grant your request.2
1 12 O.S. § 922
2 43 O.S. § 112.6
Where can I file for child custody? Which state has jurisdiction?
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can only file for custody in the “home state” of the child unless you meet one of the exceptions explained in Are there any exceptions to the home state rule? The child’s “home state” is the state where your child has lived with a parent or a person acting as a parent for the past six consecutive months. If your child is under six months old, then your child’s home state is where s/he has lived since birth. Leaving the state for a short period of time does not change your child’s home state.
If you and your child recently moved to a new state, generally, you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least six months.
Are there any exceptions to the home state rule?
There are some exceptions to the home state rule.
In some cases, you can file for custody in a state where the children and at least one parent have “significant connections” if there is a lot of evidence available concerning the child’s care, personal relationships, etc. You can only do this if there is no home state or the home state has agreed to let another state have power over the case (jurisdiction).1 This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. Please see our Oklahoma Finding a Lawyer page for a list of legal resources.
You can also file for temporary emergency jurisdiction in a state other than the home state if the child is present in the state and:
- the child has been abandoned; or
- it is necessary in an emergency to protect the child because either the child, a sibling, or a parent of the child is subjected to or threatened with mistreatment or abuse.2
1 43 O.S. § 551-201(A)(2)
2 43 O.S. § 551-204(A)
What are the steps to file for custody?
Before filing for custody, you may consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Oftentimes, parents who fight for sole custody will litigate in court for months or even years and end up with some joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, the process usually looks similar to this:
1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives, and depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
- You can also seek custody in court if you are an unmarried parent. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process. For more information, see How can paternity be established in Oklahoma?
2. Prepare for the custody process
The court custody process is usually very long and emotionally and financially draining. If you represent yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section. If you can hire an attorney, you can use this list of questions as your guide when deciding who to hire.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case about why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see the question How will a judge decide custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child, and many states consider that this is to have a relationship with both parents.
3. Prepare for trial
There will be one or more hearings, including a trial if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney can present evidence and cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:
- communications between the parents can only be in writing;
- all communications can only be related to the child; and
- a neutral third party should be present at the exchange of the child or the one to drop off and pick up the child.
You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child to avoid future conflicts.
4. Options if you lose the custody case
There could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
A petition to change (modify) the order is an option that would not be filed immediately. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.
To find out more about how the process works in your area, please contact a lawyer. Please visit our Oklahoma Finding a Lawyer page to find legal help in your area. You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.
