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STATE OF OKLAHOMA
2nd Session of the 59th Legislature (2024)
HOUSE BILL 3088 By: Tedford
AS INTRODUCED
An Act relating to child custody; defining terms;
providing factors for determining parenting time;
providing for tempora ry custody agreements; providing
for dismissal of custody hearings; providing for
visitation rights; providing for alleged domestic
abuse exceptions; providing for if a parent is in the
armed forces; providing for noncustodial parental
visitation rights; providing for motions to modify
court orders; providing for enforcement of the
Uniform Child Custody J urisdiction Act; providing for
certain exceptions to the Uniform Child Custody
Jurisdiction Act; providing for attorney fees in
certain instances; prohibiting joint custody when
domestic violence has been established; authorizing
the court to order restraining orders when domestic
violence has been established; providing for child
support; providing for codification; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 109.7 of Title 43, unless there
is created a duplication in numbering, reads as follows:
1. a. As used in this section , "de facto custodian" means a
person who has been shown by clear and convincing
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evidence to have been the primary caregiver for, and
financial supporter of, a child who has resided with
the person for a perio d of six (6) months or more if
the child is under three (3) years of age an d for a
period of one (1) year or more if the child is three
(3) years of age or older or has been placed by the
Department of Human Services. Any period of time
after a legal proceeding has been commenced by a
parent seeking to regain custody of the child shall
not be included in determining whether the ch ild has
resided with the person for the required minimum
period.
b. A person shall not be a de facto custodian until a
court determines by clear and convincing evidence that
the person meets the definit ion of de facto custodian
established in subsection 1. Once a court determines
that a person meets the definition of de facto
custodian, the court shall give the person the same
standing in custody matters that is given to each
parent under this section.
2. The court shall determine custody in accordance w ith the
best interests of the child and equal consideration shall be given
to each parent and to any de facto custodian. Subject to Section 5
of this act, there shall be a presumption, re buttable by a
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preponderance of evidence, that joint custody and equal ly shared
parenting time is in the best interest of the child. If a deviation
from equal parenting time is warranted, the court shall construct a
parenting time schedule which maximizes t he time each parent or de
facto custodian has with the child and is c onsistent with ensuring
the child's welfare. The court shall consider all relevant factors
including:
a. the wishes of the chi ld's parent or parents, and any
de facto custodian, as to his or her custody,
b. the wishes of the chil d as to his or her custod ian,
with due consideration given to the influence a parent
or de facto custodian may have over the child 's
wishes,
c. the interaction and interrelationship of the child
with his or her parent or parents, his or her
siblings, and any other person who may significantly
affect the child's best interests,
d. the motivation of the adults participating in the
custody proceeding,
e. the child's adjustment and continuing proximity to his
or her home, school, and community,
f. the mental and physical health of all individuals
involved,
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g. finding by the court that domestic violence and abuse
has been committed by one (1) of the parti es against a
child of the parties or against another party. The
court shall determine the extent to which the domestic
violence and abuse has affected the child and the
child's relationship to each party, with due
consideration given to efforts made by a p arty toward
the completion of any domestic violence treatment,
counseling, or program ,
h. the extent to which the child h as been cared for,
nurtured, and supported by any de facto custodian,
i. the intent of the parent or parents in placing the
child with a de facto custodian,
j. the circumstances under which the child was placed or
allowed to remain in the custody of a de facto
custodian, including whether the parent now seeking
custody was previously prevented from doing so as a
result of domestic viole nce and whether the child was
placed with a de facto custod ian to allow the parent
now seeking custody to seek employment, work, or
attend school; and
k. the likelihood a party will allow the child frequent,
meaningful, and conti nued contact with the other
parent or de facto custodian, except that the court
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shall not consider this likelihood if there is a
finding that the other p arent or de facto custodian
engaged in domestic violence and abuse against the
party or a child and th at a continued relationship
with the other parent will endanger the health or
safety of either that party or the child .
3. The abandonment of the family residence by a custodial party
shall not be considered where said party was physically harmed or
was seriously threatened with physical harm by his or her spouse,
when such harm or threat of harm was causally related to the
abandonment.
4. If the court grants custody to a de facto custodian, the de
facto custodian shall have legal custody under the laws of Oklahoma.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 109.8 of Title 43, unless there
is created a duplication in numbering, reads as follows:
A. A party to a custody proceeding may move for a temporary
custody order. The motion must be supported by an affidavit. The
court may award temporary custody after a hearing, or, if there is
no objection, solely on the basis of the affidavi ts. If the parents
or a de facto custodian joined under su bsection I of this section
present a temporary custody agreement and mutually agreed plan for
parenting time and the court confirms that the agreeme nt adequately
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provides for the welfare of the c hild, the agreement shall become
the temporary custody ord er of the court.
B. Subject to Section 5 of this act, in making an order for
temporary custody, there shall be a presumption, rebuttable by
preponderance of evidence, that it is in the best interest of the
child for the parents or a de facto custodian joined under
subsection I of this section to have temporary joint custody and
share equally in parenting time.
C. If a deviation from equal parenting tim e is warranted, the
court shall construct a parenting time schedule which maximizes the
time each parent or de facto custodian joined unde r subsection I of
this section has with the child and is consistent with ensuring the
child's welfare.
D. Each temporary custody order shall include specific findings
of fact and conclusions of law, except when the court confirms the
agreement of the par ties.
E. Any temporary custody order shall address the circumstance
in which physical possession of the child will be exchanged.
F. Modification of a temporary custody order may b e sought when
there is a material and substantial change in the circumstan ces of
the parents, de facto custodian, or child.
G. If a proceeding for dissolution of marriage or legal
separation is dismissed, any temporary custody order is vacated
unless a parent or the child's custodian moves that the proce eding
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continue as a custody proceeding and the court finds, after a
hearing, that the circumstances of the parents and the best
interests of the child require that a custody decree be issued.
H. If a custody proceeding commenced in the absence of a
petition for dissolution of ma rriage or legal separation is
dismissed, any temporary custody order is vacated.
I. If a court determines by clear and convincing evidence that
a person is a de fac to custodian, the court shall join that person
in the action as a party needed for just ad judication.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 109.9 of Title 43, unless there
is created a duplication in numbering, reads as follow s:
A. A parent not granted custody of the child and not awarded
shared parenting time under the presumption specified in paragraph 2
of Section 1 of this act, subsection B of Section 2 of this act, or
subsection F of Section 4 of this act is entitled to reasonable
visitation rights unless the cour t finds, after a hearing, that
visitation would seriously endanger the child's physical, mental,
moral, or emotional h ealth. Upon request of either party, the court
shall issue orders which are specific as to the frequency, timing,
duration, conditions, an d method of scheduling visitation and which
reflect the development age of the child.
B. If domestic violence and abu se has been alleged, the court
shall, after a hearing, determine the visitation arrangement, i f
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any, which would not seriously endanger the child's or the custodial
parent's physical, mental, or emotional health.
C. The court may modify an order granting or denying visitation
rights whenever modification would serve the best interests of the
child; but the court shall not restrict a parent's visitation rights
unless it finds that the visitation would seriously endanger the
child's physical, mental, moral, or emotional health.
D. 1. Except as provided in paragraph 2 of this subsection,
any court-ordered modification of a child visitation de cree, based
in whole or in part on:
a. the active duty of a parent or a de facto custodian as
a regular member of the United States Armed Forces
deployed outside the United States , or
b. any federal active duty of a parent or a de facto
custodian as a member of a state National Guard or a
Reserve component,
shall be temporary and shall revert to the previous child visitation
decree at the end of the deployment outside the United States or the
federal active duty, as appropriate.
2. A parent or de facto custodian identified in paragraph 1 of
this subsection may consent to a modification of a child visitation
decree that continues past the end of the deployment outside the
United States or the federal active duty, as appropriate.
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E. Under circumstances where the court finds, by clear and
convincing evidence, that it is in the best interest of the child,
any relative, by blood or affinity, that was previously granted
temporary custody may be granted reasonable nonc ustodial parental
visitation rights by a circuit court or family court as an
intervenor or by original action. Once the relative has been
granted visitation pursuant to this subsection, those rights shall
not be adversely affected by the termination of cus todial or
parental rights of an individual who has permanent custody of the
child unless the court determines that termination of the vis itation
rights are in the best interests of the child. The action shall be
brought in the county in which the temporary or permanent custody
order was entered or where the child resides.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 109.10 of Title 43, unless there
is created a duplicati on in numbering, reads as follows:
A. As used in this section, "custody" means sole or joint
custody, whether ordered by a court or agre ed to by the parties.
B. No motion to modify a custody decree shall be made earlier
than two (2) years after its date , unless the court permits it to be
made on the basis of affidavits that there is reason to believe
that:
1. The child's present environment may seriously endanger his
or her physical, mental, moral, or emotional health; or
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2. The custodian appointed under the prior decree has placed
the child with a de facto cus todian.
C. If a court of this state has jurisdiction pursuant to the
Uniform Child Custody J urisdiction Act, the court shall not modify a
prior custody decree unless after hearing it finds, upon the ba sis
of facts that have arisen since the prior decree o r that were
unknown to the court at the time of entry of the prior decree, that
a change has occurred in the circumstances of the child or his or
her custodian, and that the modification is necessary to serve the
best interests of the child. When determining if a change has
occurred and whether a modification of custody is in the best
interests of the child, the court shall consider the following:
1. Whether the custodian agrees to the modification;
2. Whether the child has been integrated into the family of the
petitioner with consent of the custodian;
3. Whether the child's present environment seriously endangers
his or her physical, mental, moral, or emotional health;
4. Whether the harm likely to be caused by a change of
environment is outweighed by its advantages to him or her; and
5. Whether the custodian has placed the child with a de facto
custodian.
D. In determining whether a child 's present environment may
seriously endanger his or her physical, mental, moral, or em otional
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health, the court shall consider all relevant factors, including,
but not limited to:
1. The interaction and interrelationship of the c hild with his
or her parent or parents, his or her de facto custodian, his or her
siblings, and any other person who may significantl y affect the
child's best interests;
2. The mental and physi cal health of all individuals involved;
3. Repeated or substantial failure, without good cause , of
either parent to observe visitation, child support, or other
provisions of the decree which aff ect the child, except that
modification of custody orders shall not be made solely on the basis
of failure to comply with v isitation or child support pr ovisions, or
on the basis of which parent is more likely to allow visitation or
pay child support; and
4. If domestic violence and abuse is found by the court to
exist, the extent to which the domestic violence and abuse has
affected the child and the child's relationship to both parents.
E. 1. Except as provided in paragraph 2 of this subsection,
any court-ordered modification of a child custody decree, based in
whole or in part on:
a. the active duty of a parent or a de facto c ustodian as
a regular member of the United States Armed Forces
deployed outside the United States , or
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b. any federal active duty of a parent or a de facto
custodian as a member of a state National Guard or a
Reserve component,
shall be temporary and shall revert to the previous child custody
decree at the end of the deployment outside the United States or the
federal active duty, as appropriate.
2. A parent or de facto custodian identified in paragraph 1 of
this subsection may consent to a modification of a child custody
decree that continues past the end of the deployment outside the
United States or the federal active duty, as a ppropriate.
F. Subject to Section 5 of this act, if the court orders a
modification of a child custody decree, there shall be a
presumption, rebuttable by a preponderance of evidence, that it is
in the best interest of the child for the parents to have j oint
custody and share equally in parenting time. If a deviation from
equal parenting time is warranted, the court sha ll construct a
parenting time schedule which maximizes the time each parent or de
facto custodian has with the child and is consistent wit h ensuring
the child's welfare.
G. Attorney fees and costs shall be assessed against a party
seeking modification if the court finds that the modification action
is vexatious and constitutes harassment.
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SECTION 5. NEW LAW A new s ection of law to be codified
in the Oklahoma Statutes as Section 109.11 of Title 43, unless there
is created a duplication in numbering, reads as follows:
When determining or modifying a custody order pursuant to
Section 1, 2, 4, or 6 of this act, the court shall consider the
safety and well-being of the parties and of the children. If a
domestic violence orde r is being or has been entered against a party
by another party or on behalf of a child at issue in the custody
hearing, the presumption that joint custody and equally shared
parenting time is in the best interest of the child shall not apply
as to the party against whom the domestic violence order is being or
has been entered. The court shall weigh all factors set forth in
paragraph 2 of Section 1 of this act in determining the best
interest of the child.
SECTION 6. NEW LAW A new s ection of law to be codified
in the Oklahoma Statutes as Section 109.12 of Title 43, unless there
is created a duplication in numbering, reads as follows:
A. Following a hearing, if a court finds by a preponderance of
the evidence that domestic violence a nd abuse has occurre d and may
again occur, the court may issue a d omestic violence order:
1. Restraining the adverse party from:
a. committing further acts of domestic violence and
abuse,
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b. any unauthorized contact or communication with the
petitioner or other person spe cified by the court,
c. approaching the petitioner or other per son specified
by the court within a distance specified in the order
not to exceed five hundred (500) feet,
d. going to or within a specified distance of a
specifically described residence, s chool, or place of
employment or area where such a place is located , and
e. disposing of or damaging any of the property of the
parties;
2. Directing or prohibiting any other actions that the court
believes will be of assistance in eliminating future ac ts of
domestic violence and abuse, except that the court shall not order
the petitioner to take any affirmative action; and
3. Directing that either or both of the parties receive
counseling services av ailable in the community in domestic violence
and abuse cases.
B. In imposing a location restriction described in subparagraph
d of paragraph 1 of subsection A of this section, the court shall:
1. Afford the petitioner and respondent, if present, an
opportunity to testify on the issue of the locations an d areas from
which the respondent should or should not be excluded;
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2. Only impose a location re striction where there is a
specific, demonstrable danger to the petitioner or other person
protected by the order;
3. Specifically describe in the order the l ocations or areas
prohibited to the respondent; and
4. Consider structuring a restriction so as to allow the
respondent transit through a n area if the respondent does not
interrupt his or her travel to harass, harm, or attempt to harass or
harm the petitioner.
C. When temporary child suppo rt is granted under this section,
the court shall enter an or der detailing how the child support is to
be paid and collected. Child support ordered under this section may
be enforced utilizing the same procedures as any other child support
order.
D. A domestic violence order shall be effective for a period of
time fixed by the court, not to exceed three ( 3) years, and may be
reissued upon expiration for subsequent periods of up to three (3)
years each. The fact that an order has not been violated since its
issuance may be considered by a court in hearing a request f or a
reissuance of the order.
SECTION 7. This act shall become effective November 1, 2024.
59-2-8457 TJ 01/09/24