By Rachel Bussett
We’ve officially entered the time of year that I call divorce season. Those who were teetering on the edge of staying or going off when the holiday season started in November have decided to go and my phone starts to ring with new family law clients.
For most couples that I work with the signs of impending relationship doom have been there for a while, even though one person inevitability wants the divorce more than the other.
So a big part of the job is explaining to that client that the divorce will happen regardless if they want it or not because Oklahoma has no fault divorce. No fault divorce means if you decide you’re done being married you can get a divorce. You do not have to prove incompatibility, infidelity or abuse. Those are still options but for the most part it’s not worth the extra time and expense to prove that you should be divorced when the law allows it for no reason.
Divorce is tough enough when it’s just the spouse splitting their stuff, but the addition of children to the mix takes it to a different level. When divorce happens, you start with a situation of two people who did not get along well when they were living together. However, they generally managed to hide it to keep the peace around children and others during the marriage. After the separation this usually turns into an all-out war and children are stuck in the middle.
The first thing I tell divorce clients is that divorce is equitable, not equal. The court isn’t going to draw a line and give each spouse half. For example, if spouse one makes $100,000 a year and spouse 2 is a stay-at-home parent, it wouldn’t be equitable to give spouse 2 half of the debt when the ability to pay is lacking. So the court balances the equities on a number of factors to distribute income, debt and property to the parties.
When it comes to custody and parenting time (aka “visitation”) the court is interested in what is in the best interest of the child. Custody and parenting time are two distinct issues and one is not dependent on the other. Custody is really about the decision making authority of a parent over the child. Parenting time is the time each parent has guaranteed with the child. In this column we are going to discuss custody.
The court looks at all kinds of factors to determine what the custodial situation should be whether a true joint custody, modified joint custody or sole custody. Those factors include such things as location, living arrangements, work schedules, ability to provide for the children, the existence of a support network, how well the parents communicate and other such things.
In a true joint custody situation, the parents have to be able to work together to reach a decision for parenting their children. There is no tie breaker and the parents have to put aside their differences for what is best for their children. This is difficult if not impossible when the parents are war with one another over everything in a divorce.
In a modified joint custody situation, the parents still have to work together and consult one another before making decisions. However, it the parties can’t agree, one is appointed the final decision maker. If the court determines that the final decision maker isn’t consulting or is using their status to an advantage, this can cause the court to change its decision.
In sole custody one parent is the decision maker. That parent can make all the decisions for the child and does not have to consult with the other parent before doing so. Sole custody is awarded less often.
Modification of a custody situation is also subject to certain restrictions. In a joint custody situation, the parent seeking the modification has the burden to prove that there has been a material change in circumstances that warrant the custody change and that it is in the best interest of the child to change custody.
The court only focuses on the time and events between the last determination of custody and the time the modification has been filed. Conversely, it’s difficult to modify a sole custody arrangement to joint custody because the parent seeking the parental modification has to show that the sole custodian is more or less unfit as a parent. This is a very high bar.
When this motion is made, the parties are not limited to bringing forth facts between the time the last determination was made and present. In modifying to sole custody, the court can reopen old facts and review custody completely. This is why once a sole custody determination has been made it is highly unlikely to change.
Custody impacts other aspects of divorce like child support and parenting time but it is a separate and distinct determination. Custody is about the right, ability and obligation to make decisions for your child.
Further, even where the other parent has sole custody, the non-custodial parent still has decision making authority over the children during the parenting time and should take an active involvement with the child. I have found that the amount of animosity and disdain between parents significantly lessens when the non-custodial parent takes an active role in parenting the children and trying to be present for the children mentally, emotionally and financially.
After all, being present and there for your child is what parenthood is really all about.
Rachel Bussett is an Oklahoma City attorney. She can be reached at 405-605-8073.