What Must a Non-Custodial Parent Show to Obtain a Post-Judgment Change of Custody in Oklahoma?

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.

Spring Break Means More Drunk Driving Accidents and Crash-Related Injuries

Spring break is a time when college students from Oklahoma and around the country depart for a week of relaxing, drinking, and celebrating.  Given that alcohol and partying often is a significant part of spring break recreational activities, this is a very dangerous time for motorists.  Drunk driving is one of the leading causes of serious car accidents and traffic-related fatalities.  It is estimated that over three million college students operate motor vehicles while under the influence of alcohol.  Alcohol use by college students results in almost six hundred thousand injuries and nearly two thousand deaths of college students per year.  This does not include other drivers, passengers, and pedestrians who are seriously injured or killed in accidents involving college students who are intoxicated.

Those who drive under the influence of alcohol pose a serious danger to others on the road.  College students who are impaired will typically have delayed reaction time, poor coordination, and impaired judgment and/or concentration.  Drivers who are under the influence of alcohol or drugs also tend to engage in other high-risk behavior, such as aggressive driving, speeding, and reckless driving.  Drunk drivers who engage in these practices place all other motorists, pedestrians and passengers at risk.  One study found that forty percent of college students admitted to being a passenger in a car with a drunk driver.

If you are a college student, you can protect yourself and others by declining to ride with a drunk driver during spring break.  A passenger in a vehicle with a drunk driver may encourage a driver to drive while under the influence of alcohol.  A passenger that speaks up and discourages a drunk driver, rather than accepting a ride, can protect oneself and others on the road.  While it is not a criminal act to ride with a drunk driver, a judge in Japan recently convicted passengers for accepting a ride with a drunk driver.  The court reasoned that the passengers implicitly encouraged the intoxicated driver to commit DUI by accepting the ride with the drunk driver.

Some safety tips that can reduce the risk of being involved in a crash during spring break include the following:

  • Drivers should avoid getting behind the wheel when they are fatigued.
  • Motorists taking prescription or over-the-counter (OTC) drugs can also be liable for negligent impaired driving.
  • A designated driver should be selected prior to any excursion.

Because drunk driving is considered particularly egregious, drivers under the influence of alcohol can be liable for punitive damages.  Although the legal system in the U.S. does not impose criminal liability on passengers who ride with drunk drivers, you can save your life and the lives of others by discouraging a friend from driving drunk.  If you or your loved one is involved in a car accident in the Canadian County area, our Oklahoma Personal Injury Lawyers diligently pursue the rights of those injured traveling on Oklahoma roadways.  Our law firm is prepared to aggressively represent injury victims seeking fair compensation for their injuries, so call us at (405) 295-1924 for your free initial consultation.

 

Pets Can Be a Dangerous Driving Distraction

Driving while texting or using a cell phone has been the primary focus of efforts to discourage distracted driving, but there is another distracted driving hazard that is garnering an increasing amount of attention and debate.  The distraction created by pets riding in the passenger compartment of cars, trucks, and SUVs constitutes an increasingly common cause of serious motor vehicle accidents.  Many people love their pets and treat them like part of the family. Some owners refuse to put their pet in a “cage” in the back and prefer to allow their car, dog, or other pet to ride up front in their lap.  This insistence on leaving pets unrestrained can come at a very high cost, which includes serious car accidents that cause permanent injuries or wrongful death.

Researchers at AAA and Kurgo, a pet product manufacturer, surveyed people about their driving habits with pets in the car.  The study found that nearly sixty percent of drivers had taken their pets with them in the car a minimum of once per month during the prior year.  Approximately a quarter of drivers indicated they had used their hands to hold their pet while applying the brakes to slow or stop.  Nearly twenty percent of study participants admitted they had used their hands to prevent their pet from moving into the front seat while behind the wheel.

Unfortunately, very few people took steps to observe minimum safety precautions when transporting a pet.  For example, only 17 percent of respondents indicated that they used any form of pet restraint system. This increases the danger to the pet and also to any passengers that are in the motor vehicle.  If a ten pound dog were loose in the car during a car crash at highway speeds, the dog would be launched through the vehicle.  If the dog slams into a vehicle occupant in a collision at highway speeds, it would exert hundreds of pounds of force at the point of impact.  This could easily kill a dog of this size and/or seriously injure it along with the human who is struck when the animal becomes a projectile.

There are a lot of different options for keeping vehicle occupants and dogs safe while riding in a car.  Drivers should always keep a dog in an enclosed area or restrained to the seat in some way.  An appropriate pet restraint system will help protect the pet in a crash and prevent it from distracting a motorist while driving. A loose dog can try and jump into your lap, bark in your ear, get down on the floorboards around your feet, and start misbehaving, so you are forced to pay attention to it. These things could all lead to you diverting your eyes and attention from the road.  A dog that manages to wedge its way into a driver’s lap or under his or her feet may interfere with the motorist’s ability to steer or brake.

Traffic safety advocates have suggested some ways to keep your pet safely controlled while you are driving:

  • Use safety barriers in your car: There are safety barriers that fit in between the back of a vehicle, the trunk or storage space and the back seat. You can get them sized to your vehicle.  Another type of barrier can be fitted to your pet and secured between the front and back seat of the car.
  • Seat belt restraints: These are harnesses that are worn on your dog’s body and clip into the seat belt so that your dog will stay in the seat. If you have to stop suddenly, these are designed to prevent your pet from hitting the interior of the vehicle or a vehicle occupant.  These restraints come in a range of sizes and can be sized to fit your dog.
  • Doggie booster seats: These seats are best for smaller breeds of dogs. They are a good way to protect smaller breeds that can easily get thrown in the event of a crash. They sit on the seat and are strapped through the seat belt system much the same way a child’s booster seat is strapped in. The dog then sits in the seat while strapped in a harness that is attached to the seat. This device keeps the dog in place in the case of sudden stops.
  • Crates or kennels: The use of crates in the car works well if you have sufficient room. If the crate is in the back of an SUV, you can strap it down by using the tie-offs that typically are located on the floor.  If it is a smaller crate in the back seat, you can use the seat belt system to strap it in.

In addition to keeping your pet safe, all of these options can keep you and passengers in your car safe. Animals that are allowed to run loose in a car can be a major source of distraction to a driver, and distracted drivers account for more than 6,000 car accident fatalities per year.  If you or your loved one is involved in a car accident in the Canadian County area, our Oklahoma Car Accident Lawyers diligently pursue the rights of those injured traveling on Oklahoma roadways.  Our law firm is prepared to aggressively represent injury victims seeking fair compensation for their injuries so call us at (405) 295-1924 for your free initial consultation.

 

 

Should I Submit to Field Sobriety Tests When Stopped in Oklahoma?

When you are pulled over by a law enforcement officer in Oklahoma, you typically will be asked to perform field sobriety tests (FSTs) if the officer believes you are intoxicated.  This request will be made by a law enforcement officer hovering over you with a gun in his holster and the power of arrest.  The intimidating presence of the officer combined with the way the request is made typically will make it appear as though you have no choice.  However, these tests are part of a pre-arrest screening process, so your participation means that you are offering evidence to support your arrest and prosecution.  The bottom line is that you do not have to participate and might want to consider refusing field sobriety tests unless you know you have not been drinking and will pass the tests.

There are only three field sobriety tests that have been approved for use by officers when determining if probable cause for a DUI arrest exist: (1) one-leg stand, (2) walk-and-turn, and (3) the horizontal gaze nystagmus.  While the officer might ask you to engage in other tests that you have seen on television, such as reciting the alphabet backwards, only the three tests indicated above have been approved by the National Highway Traffic Safety Administration (NHTSA) as providing an indication of alcohol impairment.  These approved tests are referred to as “Standardized Field Sobriety Tests” (SFSTs).  Even the tests that have been approved have significant error rates that are as high as 25 percent individually.

These awkward and unfamiliar tasks require split-concentration along with a fair amount of coordination, balance, mobility, flexibility, and dexterity.  The difficulty associated with performing FSTs has become the subject of comic fodder for good reason.  The difficult mental and physical demands associated with the walk-and-turn and one-leg stand make these tasks difficult to perform even when you are stone cold sober.  Further, the officer administers these tests because he has already decided that you are intoxicated.  Given the officer’s predisposition, motorists should hardly be surprised when they learn that they have failed.

A driver’s sub-par performance on field sobriety tests can be affected by many factors that have nothing to do with alcohol, such as:

  • Inappropriate footwear
  • Obesity
  • Poor coordination
  • Age and general physical condition
  • Traffic lights or colored police strobe lights
  • Physical injury
  • Flu, colds, or other illness
  • Adverse weather conditions
  • Inner-ear infections
  • Nervousness or anxiety
  • Proximity to traffic

The NHTSA has conceded that all of these factors can interfere with accurate SFST results.  This list of factors only constitutes some of the reasons that these “marginally accurate” tests can be even more prone to error.  There are strict procedures for administering, demonstrating, and scoring performance on SFSTs, but many officers lack adequate training or fail to comply with these strict instructions.

If you are asked to participate in SFSTs, there is little to gain, so you might want to decline.  One way to do this is to ask if participation is mandatory.  The officer legally should say no, but he might try to persuade you to agree.  If the officer does not simply take no for an answer, you might want to politely indicate you would like to talk to an attorney before making a decision.  While declining to perform SFSTs will not necessarily prevent an arrest, you will have deprived the officer of evidence to support probable cause for a DUI arrest and avoided providing evidence for the prosecutor to use at trial.

At the Handley Law Center, our DUI defense lawyers are dedicated to diligently protecting the rights, reputation, and freedom of our clients.  Our Oklahoma Criminal Defense Attorneys offer a free consultation to evaluate your situation and advise you of your options.  Call us at (405) 295-1924 to schedule an appointment in our conveniently located office in El Reno which is only a 20-minute drive from Oklahoma City.