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SENATE FLOOR VERSION
March 1, 2022
COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 1761 By: Merrick
An Act relating to child custody; amending 43 O.S.
2021, Sections 109 and 112, which relate to care and
custody of children; modifying requirements for
certain presumption; defining term; modi fying
definitions; requiring court to consider certain
factors; requiring hearing upon certain allegation;
requiring court to make determination and enter
findings; setting deadline for evidentiary hearing
upon certain pleading; authorizing certain em ergency
orders; prohibiting d enial or restriction of custody
or visitation for certain reasonable and good faith
actions; requiring award of sole custody and
suspension of visitation upon certain findings;
prohibiting refusal to consider certain evidence;
authorizing court to order payment of certain costs
and fees; updating statutory language; and providing
an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 43 O.S. 2021, Section 109, is
amended to read as follows:
Section 109. A. In awarding the custody of a mi nor unmarried
child or in appointing a general guardian for said the child, the
court shall consider what appears to be in the best interests of the
physical and mental and moral welfare of the child.
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B. The court, pursuant to the provisions of subsection A of
this section, may grant the care, custody, and control of a child to
either parent or to the parents jointly.
For the purposes of this section, the terms joint custody and
joint care, custody, and control mean the sharing by p arents in all
or some of the aspects of physical and legal care, custody, and
control of their children.
C. If either or both parents have requested joint custody, said
the parents shall file with the court their plans for the exercise
of joint care, custody, and control of their ch ild. The parents of
the child may submit a plan jointly, or either parent o r both
parents may submit separate plans. Any plan shall include but is
not limited to provisions detailing the physical living arrangements
for the child, child support obligatio ns, medical and dental care
for the child, school placement, and visitation rights. A plan
shall be accompanied by an aff idavit signed by each parent stating
that said the parent agrees to the plan and will abide by its terms.
The plan and affidavit shall be filed with the petition for a
divorce or legal separation or after said the petition is filed.
D. The court shall is sue a final plan for the exercise of joint
care, custody, and control of the child or children, based upon the
plan submitted by the parents, s eparate or jointly, with appropriate
changes deemed by the court to be in the best intere sts of the
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child. The court also may reject a request for joint custody and
proceed as if the request for joint custody had not been made.
E. The parents having join t custody of the child may modify the
terms of the plan for joint c are, custody, and cont rol. The
modification to the plan shall be filed with the court and included
with the plan. If the court determines the modifications are in the
best interests of th e child, the court shall approve the
modifications.
F. The court also may modify the ter ms of the plan for joint
care, custody, and control upon the request of one parent. The
court shall not modify the plan unless the modificatio ns are in the
best interests of the child.
G. 1. The court may terminate a joint custody decree upon the
request of one or both of the parents or whenever the court
determines said the decree is not in the best interests of the
child.
2. Upon termination of a joint custody decree, the court shall
proceed and issue a modified decree for the ca re, custody, and
control of the child as if no such joint custody decree had been
made.
H. In the event of a dispute between the parents having joint
custody of a child as to the interpretatio n of a provision of said
the plan, the court may appoint an arb itrator to resolve said the
dispute. The arbitrator shall be a disinterested person
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knowledgeable in domestic relations law and family counseling. The
determination of the arbi trator shall be final an d binding on the
parties to the proceedings until furt her order of the court.
If a parent refuses to consent to arbitration, the court may
terminate the joint custody decree.
I. 1. In every proceeding in which there is a dispute a s to
the custody of a minor child, a determination by the court that
child abuse, domestic violence, stalking, or harassment has occurred
raises a rebuttable presumption that sole custody, joint legal or
physical custody, or any shared parenting plan with the perpetrator
of child abuse, domestic violence, harassing or stalking behav ior is
detrimental and not in the best interes t of the child, and it is in
the best interest of the child to reside with the parent who is not
a perpetrator of child abuse, domestic violence, harassing or
stalking behavior.
2. For the purposes of this sub section:
a. “child abuse” shall have the same meaning as “abuse”
as defined pursuant to the Oklahoma Children’s Code in
Section 1-1-105 of Title 10A of the Oklahoma S tatutes,
b. “domestic violence” means the threat of the infliction
of physical injury, any act of physical harm or the
creation of a reasonable fear thereof, or the
intentional infliction of emotional distress by a
parent or a present or former member of the househo ld
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of the child, against the child or another member of
the household, including coercive control by a parent
involving physical, sexual, psychological, emotional,
economic or financial abuse,
b. “stalking” means the willful course of conduct by a
parent who repeatedly follows or harasses another
person as defined in S ection 1173 of Title 21 of the
Oklahoma Statutes, and
c. “harassment” means a knowing and willful course or
pattern of conduct by a parent directed at another
parent which seriously alarms or is a nuisance to the
person, and which serves no legitimate purp ose
including, but not limited to, harassing or obscene
telephone calls or conduct that would cause a
reasonable person to have a fear of death or bodily
injury, and
d. “stalking” means the willful course of conduc t by a
parent who repeatedly follows or harasses anoth er
person as defined in S ection 1173 of Title 21 o f the
Oklahoma Statutes.
3. If a parent is absent or relocates as a result of an act of
domestic violence by the other parent, the absence or relocatio n
shall not be a factor that weighs against the parent in determining
custody or visitation.
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4. The court shall consider, as a primary factor, the safety
and well-being of the child who is the victim of child abuse and of
the parent who is the victim of d omestic violence, harassment, or
stalking behavior, in addition to other facts regarding the best
interest of the child.
5. The court shall consider the history of the parent causing
physical harm, bodily injury, assault, verbal th reats, stalking, or
harassing behavior, or the fear of physical harm, bodily i njury, or
assault to another person , including the minor child, in determining
issues regarding custody and visitation.
SECTION 2. AMENDATORY 43 O.S. 2021, Section 112, is
amended to read as follows:
Section 112. A. A petition or cross-petition for a divorce,
legal separation, or annulment must shall state whether or not the
parties have minor children of t he marriage. If there are minor
children of the marriage, the court:
1. Shall make provision for guardianship, custody, med ical
care, support and education of the c hildren;
2. Unless not in the best interests of t he children, may
provide for the visitat ion of the noncustodial parent with any of
the children of the noncustodial parent; and
3. May modify or change any order wh enever circumstances render
the change proper either before or after final judgment in the
action; provided, that the amount of the periodic child support
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payment shall not be modified retroactively or payment of all or a
portion of the past due amount wai ved, except by mutual agreement of
the obligor and obligee, or if the obligee has assigned child
support rights to the Department o f Human Services or other entity,
by agreement of the Department or other entity. Unless the parties
agree to the contrary, a completed child support computation for m
provided for in Section 120 of this title shall be required to be
filed with the child s upport order.
The social security numbers of both parents and the child shall
be included on the child support order summary form provided for in
Section 120 of this title, which shall be submitted to the Central
Case Registry as provided for in Section 11 2A of this title with all
child support or paternity orders.
B. In any action in which t here are minor unmarried children in
awarding or modifying the custody of the child or in appointing a
general guardian for the child, the court shall be guided by the
provisions of Section 112.5 of this title and shall consider what
appears to be in the b est interests of the child.
C. In awarding or modifying custody or vi sitation of a child,
if a party to the action alleges that the other party has committed
an act of child abuse against the child, or committed an act of
domestic violence against the party m aking the allegation or a
family or household member of either party, the court shall, before
considering any other best interest factors, hear and determine upon
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competent admissible evidence the allegations set forth and enter
findings regarding any child abuse or domestic violence. The
evidentiary hearing for such determination shal l be held within
sixty (60) days of the filing of a verified pleading ; provided,
however, the court may issue any necessary emergency orders to
protect the child. If a parent makes a good faith allegation based
on a reasonable belief supported by facts th at the child is the
victim of child abuse or the effects of domestic vi olence, and if
that parent acts lawfully and in good faith in response to that
reasonable belief to protect th e child or seek treatment for the
child, then that parent shall not be depr ived of custody,
visitation, or contact with the child, or restricted in custody,
visitation, or contact, based solely on that belief or the
reasonable actions taken based on that bel ief. If the court finds a
pattern of child abuse or domestic violence by a parent, the court
shall award sole custody of the child to the non -offending parent or
party and shall suspend visitation or award only supervised
visitation to the parent engaged in a pattern of abusive or violent
behavior. If the court finds that a party has not engaged in a
pattern of child abuse or domestic violence, the court may not
refuse to consider additional evidence of child abuse or domestic
violence presented later in the case. Upon a finding that a parent
has committed child abuse or dome stic violence, the court may order
payment by the offending parent of court costs and fees including
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but not limited to attorney and expert fees that are incurred by the
non-offending parent to prepare for and participate in the
evidentiary hearing.
D. 1. When it is in the best interests of a minor unmarried
child, the court shall:
a. assure children of frequent and continuing contact
with both parents after the parents have separa ted or
dissolved their marriage, and
b. encourage parents to share the righ ts and
responsibilities of child rearing in or der to effect
this policy.
2. There shall be neither a legal preference nor a presumption
for or against joint legal custody, joint ph ysical custody, or sole
custody.
3. When in the best interests of the chil d, custody shall be
awarded in a way which ass ures the frequent and continuing c ontact
of the child with both parents. When awarding custody to either
parent, the court:
a. shall consider, among other fac ts, which parent is
more likely to allow the child or children frequent
and continuing contact with the noncustodial parent,
and
b. shall not prefer a parent as a custodian of the child
because of the gender of that parent.
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4. In any action, there shall b e neither a legal preference or
nor a presumption for or against private or public school o r home-
schooling in awarding the custody of a child, or in appoi nting a
general guardian for the child.
5. Notwithstanding any custody determina tion made pursuant to
the Oklahoma Children’s Code, when a parent of a child is required
to be separated from a child due to military service, the court
shall not enter a fina l order modifying an existing custody order
until such time as the parent has com pleted the term of duty
requiring separation. For purposes of this par agraph:
a. in the case of a parent who i s a member of the Army,
Navy, Air Force, Mar ine Corps or Coast G uard, the term
“military service” means a combat deployment,
contingency operatio n, or natural disaster r equiring
the use of orders that do not permit a ny family member
to accompany the member ,
b. in the case of a parent who is a member of the
National Guard, the term “military service” means
service under a call to active service auth orized by
the President of the United States or the Secretary of
Defense for a period of more than thirty (30)
consecutive days under 32 U.S.C. 502(f) for purposes
of responding to a national emergency declared by the
President and supported by federal fun ds. “Military
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service” shall include any period during which a
member is absent from duty on account of sickne ss,
wounds, leave or other lawful cause, and
c. the court may enter a temporary custody or visitation
order pursuant to the requirements of the D eployed
Parents Custody and Visitation Act.
6. In making an order for custody, the court shall require
compliance with Section 112.3 of this title.
D. E. 1. Except for good cause shown, a pattern of failure to
allow court-ordered visitation may be determin ed to be contrary to
the best interests of the child and as such may be grounds for
modification of the child c ustody order.
2. For any action brought pur suant to the provisi ons of this
section which the court determines to be contrary to the best
interests of the child, the p revailing party shall be entitled to
recover court costs, attorney fees and any other rea sonable costs
and expenses incurred with the action.
E. F. Except as otherwise provided by Section 112.1A of this
title, any child shall be entitle d to support by the parents until
the child reaches eighteen (18) years of age. If a child is
regularly enrolled in and attending high school, as set fort h in
Section 11-103.6 of Title 70 of the Oklahoma Statutes, other means
of high school education, or an alternative high school education
program as a full-time student, the child shall be entitled to
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support by the parents until the child graduates from h igh school or
until the age of twenty (20) years, whichever occurs first. Full -
time attendance shall include regularly scheduled breaks from the
school year. No hea ring or further order is required to extend
support pursuant to this subsection after the child reaches the ag e
of eighteen (18) years.
F. G. In any case in which provision is made for the cust ody or
support of a minor child or enforcement of such order a nd before
hearing the matter or signing any order s, the court shall inquire
whether public assistance money or me dical support has been provided
by the Department of Human Services, hereafter re ferred to as the
Department, for the benefit of each child. I f public assistance
money, medical support, or ch ild support services under the state
child support plan as provi ded in Section 237 of Title 56 of the
Oklahoma Statutes have been provided for th e benefit of the child,
the Department shall be a necessary pa rty for the adjudication of
the debt due to the S tate of Oklahoma, as defined in Section 238 of
Title 56 of the Oklahoma Statutes, and for the adjudication of
paternity, child support, and medic al insurance coverage for the
minor children in accordance wit h federal regulations. When an
action is filed, the petitioner shall give the Department not ice of
the action according to Section 2004 of Title 12 of the Oklahoma
Statutes. The Department sha ll not be required to intervene in the
action to have standing to appear and participate in the action.
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When the Department is a necessary party to the ac tion, any orders
concerning paternity, child support, medical support, or the debt
due to the State of Oklahoma shall be approved and signed by the
Department.
G. H. In any case in which a child support order or cu stody
order or both is entered, enforced or modified, the court may make a
determination of the arrearages of child support.
SECTION 3. This act shall become effective November 1, 2022.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY
March 1, 2022 - DO PASS AS AMENDED