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Termination of Joint Custody: Is the Law in Oklahoma Disjointed?
The term “custody” is not defined by statute in Oklahoma, although a trial court must provide for the “custody” of a child when two parents cannot agree as to where the child will live and who will make the decisions concerning the child. The Oklahoma Supreme Court, however, has defined custody as a term of art, which “embraces the sum of parental rights with respect to the rearing of a child, including the child’s care. It includes the right to a child’s services and earnings... and the right to direct his activities and make decisions regarding his care and control, education, health, and religion.”1
As early as 1977, Oklahoma courts sanctioned a “split custody” arrangement in which the children are under the control of one parent during the school year and the other parent during the summer. Courts at that time felt it difficult and unreasonable to divide legal custody between parents, finding instead that the right to make decisions concerning the child was inherently vested in the custodial parent.2 Therefore, if the term “custody” were used in a decree, it was used to denote the legal rights inherent in the custodial status of the parent who had the child for the majority of the time. “Visitation” was used to refer to the other parent’s rights.3 This was done to help avoid conflicts between the parents and provide more stability for the child.4
Today however, joint custody, in one judge’s opinion, has “arrived onto the beaches of child custody litigation with the subtlety of a tsunami wave.”5 A majority of the states now codify joint custody in some form or fashion, either as an option, as a preference, or as a presumption to guide the courts when determining the custody of the children.6 Oklahoma is no exception; Title 43 § 109(B) codifies joint custody as an option and allows the court to grant “the care, custody, and control of the child to either parent or to the parents jointly.”7
Although the court is given wide discretion in making determinations of custody, it must always be guided by what is in the best interests of the children.8 Therefore, Oklahoma courts have held that joint custody decisions should only be considered when there is a likelihood of parental cooperation in decisions concerning the children; both home environments are equally beneficial; and other important aspects of the children’s lives will not be disrupted by the arrangement.9Where there has been a pattern of acrimony and hostility, and a trial court awards joint custody, the decision may ultimately be determined to be against the clear weight of the evidence and an abuse of discretion.10
So what happens after a trial court has awarded joint custody and the parties become hostile and acrimonious toward one another, and one or both parents seek to terminate the joint child custody plan? While the statutory basis for both the granting and the termination of joint custody is outlined in Oklahoma Statute Title 43 § 109,11 how does the court get past re-litigating the same claim or facts which allowed the court to grant joint custody in the first place?12 While typically courts avert res judicata by requiring a substantial change in circumstances pertaining to the custody issue since the last decree was entered,13 is the same standard required for termination of joint custody? What about when the only change in circumstances is that the parents can no longer cooperate with one another? Oklahoma courts seem to be divided in the answer to this question.
In the case Hoedebeck v. Hoedebeck,14 each parent filed a motion to modify seeking to terminate the joint child custody plan and for an award of sole custody. The evidence showed that since the entry of the decree and joint child custody plan, the mother had remarried and moved to another school district, which made the joint custody arrangement no longer acceptable to her. In addition, there was evidence presented that the parties’ differing religious beliefs were causing problems, that the mother refused to allow the children to see the paternal grandparents, and that the mother attempted to remove the children from the school district the parties had agreed the children would attend.15
At the close of evidence, the trial court terminated the joint child custody plan and granted custody to the father. The court found that the children were having difficulty adjusting to mother’s new life and that they had become detached because they missed their extended family. In addition, the evidence showed that the mother had been using them as messengers because she did not want to communicate directly with the father.16 Mother appealed the trial court’s decision.17
The Oklahoma Court of Civil Appeals held that because joint custody cannot succeed without the cooperation of the parties, if it becomes apparent that the arrangement is no longer working, a material change of circumstances has occurred which justifies vacating joint custody and awarding custody to one parent.18 The court further went on to hold that it does not matter what the reasons are for the failure of the arrangement, the best interests of the children should always be the primary consideration.19
In the recent case, Eimen v. Eimen,20 mother and father were divorced by an agreed decree which provided for joint legal custody and a 50/50 share of physical custody. Although the parties had intended on a weekly rotation of the children, mother did not exercise this right after entry of the decree, and the children spent a majority of their time with father. Ultimately the children began spending more time with mother but they considered father’s home their permanent home.21Father eventually sought to modify the physical custody provisions of the joint child custody plan, and mother sought to reinforce those same provisions.22
At the close of evidence, the trial court applied the “change of circumstances” standard set forth in Coget v. Coget,23 which requires a parent seeking to transfer sole custody from one parent to another parent to show a substantial change of circumstances since entry of the last custody order, and held that father failed to meet his burden justifying a modification of custody. The trial court granted mother’s demurrer as to custody of the children.24 Father appealed.25
The Oklahoma Court of Civil Appeals held that Oklahoma Statute Title 43 § 109 specifically sets forth the basis for an award of joint custody and by inference, termination of joint custody, therefore, “best interests of the children” govern the proceedings, and it was error to apply the “change of circumstances” test set forth in Coget.26 Because father specifically met his burden of showing that the modification of physical custody was in the children’s best interests by demonstrating the teenagers’ preference to live with father, the trial court’s order denying father’s motion to modify physical custody was reversed.27
In 2001, prior to Eimen, the Oklahoma Supreme Court tackled the issue of the termination of joint custody and the subsequent award of custody. In Daniel v. Daniel,28 the father and mother both filed motions to terminate joint custody. The father alleged that the mother would not follow or abide by the joint child custody plan and refused to cooperate or communicate with the father regarding the child. The mother alleged that father would not cooperate with mother which resulted in a hostile environment between the two.29
At trial, the court terminated joint custody and awarded the father sole custody. The mother appealed and the Court of Civil Appeals reversed, holding that there should not have been a change of custody because no material change of circumstances was shown that would justify changing the custody arrangement.30
The Oklahoma Supreme Court held that generally custody modification is warranted when one of two situations arises: 1) since entry of the decree, the parties’ circumstances have materially changed31 or 2) material facts have been discovered since entry of the decree which were unknown at the time and could not have been discovered with reasonable diligence.32 The court clarified, however, that where there has been a joint custody arrangement, there is no change of custody, per se, since both parties were awarded custody.33 Therefore, when a court determines that joint custody is not working, the children’s best interests are no longer being served, and a substantial and material change of circumstances has occurred which authorizes the court to terminate joint custody.34
Although these cases seem to set forth different standards, the decisions in Hoedebeck, Eimen, and Daniel are not as disjointed as they may appear at first blush. No matter which threshold a court requires to justify the termination of joint custody, the best interests of the children are always of paramount concern to the court.35 Therefore, if a practitioner can demonstrate that the joint custody arrangement is impacting the children’s temporal, mental and moral welfare, either because it is no longer working or because a substantial change of circumstances has occurred since entry of the last custody determination, it is probably of little concern to a court as to why joint custody should be terminated, only that it should be terminated.
1. Spencer v. Spencer, 1977 OK CIV APP 23, ¶ 5, 567 P.2d 112 (citing Burge v. City & County of San Francisco, 41 Cal. 2d 608, 262 P.2d 6 (1953)).
2. Id. at ¶ 5. E.g. Conrad v. Conrad, 1968 OK 94, 443 P.2d 110; Gilbert v. Gilbert, 1969 OK 133, 460 P.2d 929.
3. Id.
4. Robert G. Spector, The Oklahoma Law of Child Custody and Visitation: Present Positions and Future Trends, 45 Okla. L. Rev. 389 (Fall 1992).
5. Gerald W. Hardcastle, Joint Custody: A Family Court Judge’s Perspective, 32 Fam. L.Q. 201 (1998-1999).
6. Id. at 203.
7. Id. Oklahoma Statute Title 43 § 109 states in pertinent part
A. In awarding the custody of a minor unmarried child or in appointing a general guardian for said child, the court shall consider what appears to be in the best interests of the physical and mental and moral welfare of the child.
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 parents in all or some of the aspects of physical and legal care, custody, and control of their children.
8. Harmon v. Harmon, 1997 OK 91, ¶ 15, 943 P.2d 599.
9. See e.g. Hornbeck v. Hornbeck, 1985 OK 48, ¶ 19, 702 P.2d 42. Despite these best-interest criterion, the Oklahoma Supreme Court held in this case that a trial court has the power under12 O.S. § 1275.4 (1983) (renumbered 43 O.S. § 112), to order joint custody even if one parent does not agree.
10.White v. Polson, 2001 OK CIV APP 88, ¶ 10, 27 P.3d 488.
11. This statute provides that once a court terminates joint custody, “the court shall proceed and issue a modified decree for the care, custody, and control of the child as if no such joint custody decree had been made.
12. This principle is discussed in Boatsman v. Boatsman, 1984 OK 74, ¶ 15, 697 P.2d 516, and is akin to the doctrine of res judicata. It is needed to accord some degree of finality to custody decisions.
13. Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482. The Oklahoma Supreme Court held in this case that
[T]he burden of proof is upon the parent asking that custody be changed from the other parent to make it appear: (a) that, since the making of the order sought to be modified, there has been a permanent, substantial and material change of conditions which directly affect the best interests of the minor child, and (b) that, as a result of such change in conditions, the minor child should be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered.
Id. at ¶ 12.
14. 1997 OK CIV APP 69, 948 P.2d 1240.
15. Id. at ¶ 3.
16. Id. at ¶ 7.
17. Id. at ¶ 2.
18. Id.
19. Id. at ¶ 11.
20. 2006 OK CIV APP 23, 131 P.3d 148.
21. Id. at ¶ 2.
22. Id. at ¶ 3.
23. 1998 OK CIV APP 164, 966 P.2d 816.
24. Id. at ¶ 7.
25. Id. at ¶ 8.
26. Id. at ¶ 12.
27. Id. at ¶¶ 15-16. Father did not request that the joint custody plan be terminated at trial, only the physical custody provisions and child support.
28. 2001 OK 117, 42 P.3d 863.
29. Id. at ¶ 4.
30. Id. at ¶ 6.
31. Id. at ¶ 17.
32. Id.
33. Id. at ¶ 20 (citing Rice v. Rice, 1979 OK 161, ¶ 8, 603 P.2d 1125).
34. Daniel, 2001 OK at ¶ 10. The most perplexing issue this standard brings forth is when a trial court orders joint custody between parents who demonstrated at trial that they do not get along in matters and decisions concerning their children and that there is a level of hostility between them. Seemingly under these circumstances, there can never be a change sufficient justifying termination of joint custody.
35. 43 O.S. § 109.
