Child Preference-Oklahoma Custody and Visitation
InOklahoma, custody of a minor child is split into two types of custody. First, there is legal custody, this essentially means which parent is charged with making the decisions regarding those things that impact the child’s life on a long term basis. Secondly, there is physical custody, which is really the amount of visitation that each parent receives with their child and at what intervals.
According to the Oklahoma Family LawStatutes, there is a rebuttable presumption that joint legal and physical custody should be awarded, meaning that both parents have equal decision making process and have equal or shared visitation and access to the children.
Often times, we are asked what about an older child’s preference regarding custody and visitation. It is understandable that the child may be upset regarding the divorce and may not want to visit or even live with one of the parents.
In Oklahoma family law cases, the controlling statute (Okla. Stat. tit. 43 113) states that there is a rebuttable presumption that a child 12 years of age is old enough to declare a preference as to custody and visitation. However, getting this preference “recognized” requires a bit of work.
The Oklahoma District CourtJudge will consider the expression of preference or other testimony of the child in determining custody or limits to or periods of visitation. However, the judge has the ultimate say and has full discretion on whether or not the child’s preference is actually in the best interest of that child.
If the Judge determines that the child is allowed to express a preference, the judge may then conduct a private interview with the child, without the parents, attorneys or other parties present. However, if the court has appointed a guardian ad litem for the child, the guardian ad litem shall be present with the child in chambers. The parents, attorneys or other parties are allowed to provide the judge with questions or topics for the court to consider in its interview of the child; however, the court shall not be bound to ask any question presented or explore any topic requested by a parent, attorney or other party.
The child’s preference often becomes more “influential” the older the child is, the longer the other party has been failing to exercise their visitation and custody, and other circumstances where the child has been free of influence of either parent and further demonstrate that they can form their own sound opinions and preferences.