While there are times that people can count on more than “one bite at the apple,” this typically is not the case with respect to child custody determinations. If you are a parent seeking primary physical custody in a divorce or contested paternity dispute, the time to pursue this claim is prior to a judgment that includes custody orders. However, some parents defer contesting custody case based on the assumption that the non-custodial parent can always return to court at a later time to request a change. The reality is that once there has been an initial determination that one part is the sole or primary custodial parent, the other parent usually will find it difficult to seek a change in custody through a subsequent modification of the judgment.
The case of In re the Marriage of Varbel, 321 P.3d 1012, decided by Division No.1 of the Court of Civil Appeals of Oklahoma reversed the trial judge’s ruling, which modified the divorce decree and changed primary custody. The divorce decree between the parents provided that the mother would be the primary custodian of the minor child subject to frequent and liberal visitation of the father according to the Kay County Standard Visitation Schedule. The judgment also indicated that once the child reached the age of two a plan of alternating weeks of shared visitation would be implemented. The divorce decree included provisions encouraging cooperation but did not designate any form of shared decision making. The court noted that the language of the decree did not amount to an award of joint custody. The court noted that this distinction is important because the showing that must be made by a party seeking a post-judgment modification of primary custody must satisfy a more exacting standard.
The court indicated that the test for a change of permanent custody are as follows: (1) substantial, permanent, and material change in circumstances; (2) the change must have had an adverse impact on the best interests of the child; and (3) the moral, temporal, and mental welfare of the child would be improved with the change. The court further clarified that the paramount consideration under this test is the best interest of the child with respect to the child’s mental, temporal, and moral welfare. The evidentiary burden is on the party seeking to change a permanent custody order to establish a substantial change in condition that will have a direct and adverse effect on the minor’s interest.
The primary basis for the disagreement over custody arose out of competing positions about the child’s pre-K education. While the mother favored enrolling the child in private school, the father preferred to have the child home schooled. The parties had multiple disagreements over this issue. Father indicated that mother “made every effort” to undermine his involvement with the minor child. While the father only planned to home school the child until 1st grade, he contended the mother’s decision to enroll the child in public school was intended to undermine his alternating week visitation. Further, he contended that the child’s mother failed to observe the schedule during a period when the child was being treated for lice.
The court first noted that the father must establish a change of condition by clear and convincing evidence to justify modification of permanent custody in the decree. The father indicated that both the child’s attainment of school age, and the dad’s increased availability for visitation constituted such a change of condition. The court noted that these issues might be relevant to an initial determination of the best interest of the child, but neither factor adversely impacted the child’s temporal, moral and mental welfare. Without this showing of adverse impact, the changes were not sufficient to justify disturbing the existing custody arrangement. The court noted that while cooperation regarding educational decisions was a worthwhile goal, the final decision was within the purview of the mother as the primary custodial parent. Further, the enrollment did not occur prior to a court ruling changing the father’s visitation from alternate weeks to weekends.
While the court acknowledge that a pattern of non-cooperation with visitation can constitute a basis for a change in custody, the facts did not support such an outcome. Under Section 112(D)(1) of Title 43, the court noted: “[e]xcept for good cause shown, a pattern of failure to allow court-ordered visitation may be determined to be contrary to the best interests of the child and as such may be grounds for modification of the child custody order.”
The court rejected the application of this provision because the decision of the mother to place the child in public school was reasonable and within her rights as the primary custodial parent. Further, the one short period where the alternate week visitation schedule was disrupted was based on “good cause” because the mother was attempting to eradicate the minor child’s lice infestation.
A final argument made by the father to justify a change of custody is worth mentioning. The father attempted to raise alleged incidents of violence of the mother toward the child prior to the divorce decree. However, the court refused to consider these allegations since neither the incidents nor the father’s knowledge of the events occurred post-judgment. In other words, these issues should have been litigated prior to the entry of the permanent custody.
The important takeaway here for parents is that the time to contest custody is before there has been a judgement in your divorce or paternity action. If a parent concedes primary or sole physical custody to the other parent prior to the judgment, the non-custodial parent will face significant challenges attempting to justify a change. Even if it can be established that the best interest of the child might justify a change, this will not occur without a finding that a material and substantial change has adversely impacted the minor’s moral, temporal, and mental welfare. This can be difficult to show especially if the other parent is not engaged in unfit parenting practices that threaten the child’s well-being. Further, pre-judgment facts that might raise concerns about the other parent being the primary custodial parent generally will carry little or no weight if raised post-judgment.
If you or your loved one is involved in a contested custody dispute as part of a marital dissolution or paternity action, our Oklahoma Family Law Attorneys understand the importance of maintaining your relationship with your child. We work diligently to protect the interests and rights of the parents we represent while avoiding the creation of unnecessary stress for their children. Our law firm is prepared to pursue the best outcome for you and your kids, so call us at (405) 295-1924 for your free initial consultation.