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What if the Mother and Father do not live in the Same State Oklahoma Divorce Law

What if the Mother and Father do not live in the Same State Oklahoma Divorce Law

What happens when mom and dad live in two separate states?

The first thing we have to ascertain is whether the parties were married or not. If the parties were married and now currently residing in two separate states, each state will have laws in effect that dictate whether or not that person has sufficient residency requirements in order to file a divorce in that jurisdiction.

What happens if both parties want to file for divorce in separate states? Then the courts typically look under what is known as the U.C.C.J.E.A., or Uniform Child Custody Jurisdiction Enforcement Act, to see where the children are residing. A good rule of thumb for this is to look at the state where the child or children have been for the preceding six months. In most instances this will be the jurisdiction that will be able to take hold of the case and take jurisdiction over the children of the parties and be the ultimate jurisdiction that will decide first and foremost where and with whom the children will live, who will get custody, and when the other party will get visitation. They will also decide other matters according to that state’s law such as property disposition, alimony, and tax exemption.

If the parties were not married then they may be looking at filing what is know as a Petition to Establish Paternity. We’ve talked about these Petitions to Establish Paternity previously and again they will follow similar guidelines under the U.C.C.J.E.A. to determine which jurisdiction would be most proper to hear the case at hand. In either regard, whether were talking about a divorce or a Petition to Establish Paternity, the parent who doesn’t reside within the state of the children will have rights to visitation with those children. Now clearly, if two parties live in separate states, it will be more difficult to have visitation as regularly as they would if they lived in the same neighborhood.

The fact that you may not have the same frequency of visitation may be a reason in and of itself, to provide that when the visitation does occur, it should be for a longer duration. As an example, we recently handled a case where a father was residing in Texas and the mother was in Oklahoma. They had been separated for several years. The father had been visiting with the child as regularly as possible according to his work schedule and paying child support in an amount that the parties decided on together. However the mother moved on with another relationship and ultimately became pregnant with another man’s child.

What we had to advise the father, our client, is that he must act swiftly because under Oklahoma law, when two parties are married, any child born during that wedlock is presumed to be the natural child of the parties. In other words, even though the father of the original child lived in Texas, he had not been living with his wife for some period of time and she had moved on to a new relationship in which she is going to have another man’s baby. Unfortunately the original client, our client, could be presumed to be the father of that child and would be presumed to be the father unless and until he steps up and says he is not. Oklahoma has a two-year window on this so it can become very important.

Visitation should be looked at as an opportunity for both parents to enjoy substantially equal time with the children. The courts consider the fact of the distance in travel, travel costs, time away from school, friends and other family and even other siblings when they determine what a long distance visitation schedule should be. If two parties reside in the same jurisdiction, those parties may have been given joint custody and the father would have received week-on week-off type visitation. He may be just as good a father living in another jurisdiction, such as Texas, but its unlikely that the courts would allow week-on week-off visitation simply because the inconvenience to the parties and the child. Not to mention, once the child becomes school age, this simply wouldn’t work with two separate jurisdictions and two separate school districts.

More frequently, what I have seen is that Courts try to modify a visitation schedule to allow, instead of the frequency of the week-on week-off, a less frequent visitation with longer periods of visitation. This could mean possibly awarding the father multiple weeks during the school year around scheduled school breaks, such as summer break and winter break. This would be to allow for the child to spend longer periods of time with the father, as they are not going to be as frequent while they live in another state. Again we must consider the actual length of distance, like if the father had been in Japan versus Texas it would most likely be even less frequent, with even longer visitation.

The point of the matter is if your spouse or the other parent of your child does not live in Oklahoma, or if you were the potential client and you don’t live in Oklahoma, we can certainly provide services for you. Of course, If your children are within the jurisdiction of Oklahoma, we also invite you to call us today and schedule a consultation. We’d like to help.

Jurisdiction in a custody and divorce case with multiple states

Jurisdiction in a custody and divorce case with multiple states

A recent development in a divorce case had a client come into hire us and alleged that his wife had left the state of Oklahoma bound for an alternate state and had taken their child of the marriage with her. He was a little sketchy on the details as to where she was staying exactly, but through a lot of diligent effort on his part we were able to ascertain her location. We then immediately filed a petition for dissolution of marriage along with an application for a temporary order and an application for emergency orders and writ of habeas corpus and the Court in Oklahoma approved all of these.

Here was the interesting thing, depending on what jurisdiction that your spouse or future ex-spouse would flee to, you can encounter many hurdles and obstacles along the way. For instance, when this woman, the opposing party had gotten to an alternate state, she filed for a victim’s protective order. Well, in that jurisdiction if the emergency victim’s protective order is granted then that Court takes emergency jurisdiction over the child and basically says then that the child can not be anywhere near our client despite the fact that the court would have no way of knowing that we had emergency orders for that child to be placed in our client’s custody.

So then you run into the issue of having orders from Oklahoma and having emergency orders from a competing jurisdiction, so what do we do? Again, this creates quite an obstacle. However, through diligent efforts on both our part and our client’s part as aforementioned, we were able to get service upon the opposing party. So when she failed to appear at Oklahoma Counties’ show cause hearing, the Court was able to reach that party and admonish her that should she fail to appear at the following Court date with the child, there would be severe consequences. Those consequences can include being jailed for contempt of court or that her actions would be taken into account when the court would determine custody and visitation.

As such, eventually the woman did return to our jurisdiction and we were able to have our show cause hearing and our client was actually granted primary custody of his daughter. So, interesting topic in divorce and something that is becoming more and more prevalent as people move around especially during the throws of a divorce.

Oklahoma Divorce and County Jurisdictions

Oklahoma Divorce and County Jurisdictions

Had an interesting case this week. It involved competing jurisdictions within the state of Oklahoma. Had a client come to me escaping what she alleged was a domestic abuse situation and we decided she should file for a legal separation versus a divorce. I will explain why that was the best option. In Oklahoma, the statutes require that for a party to file for a divorce in a particular jurisdiction they must be a resident of the state of Oklahoma for the preceding 6 months and a resident of the county in which they’re filing for at least 30 days.

However, under the legal separation statute, one must only be a resident of the county for a single day. So what that means is, is that if you meet the requirement of residency in the state of Oklahoma for 6 months, you can only file in the county for divorce that you live in if you’ve been there for at least 30 days.

However, if you are fleeing a jurisdiction for domestic violence purposes or safety concerns and you go to a neighboring county within the same state of Oklahoma, you are entitled to file for a legal separation which will protect your assets and rights prior to filing for divorce.

As we discussed her entire situation we determined that her case fit this scenario and so she filed the legal separation. However, the other spouse quickly filed for divorce where he was legally able to in the county that they had resided in for previous 30 days. So then we had a question of law in both counties as to which county would assume jurisdiction. There is case law on this point and it was interesting to know though the statute seems to allow, under the uniform child custody enforcement act, that if someone was at least making a claim for a domestic abuse situation or safety concerns that the Court shall consider those factors when determining which county would be most appropriate.

Courts frown upon the idea that you and your spouse live in a county for months or years and then all of the sudden one spouse or the other packs up the kids or kid and runs to a neighboring county and files for some sort of temporary relief such as a protective order or a legal separation. The Courts have this preference because, typically speaking, the county in which you’ve resided for that period of time would be the most appropriate to have the information relevant to be able to sort out the issues in a divorce, legal separation or custody case. However, there are extenuating circumstances from time to time where people feel unsafe in their home and their family lives and they were living in Oklahoma City so they go to Cleveland County and file for some sort of relief. And it puts the Court in a position to have to get some more information when determining which county would be the most appropriate venue to hear the case.

So again, the Courts do not wish to encourage that type of behavior. They seek to have litigants stay in their home counties when they’re wishing to dissolve their marriages or legally separate, but again these things do come up and then they create interesting points of law. So if one is considering a legal separation or divorce, it is, most of the time appropriate to file in the county in which you have resided in for the last at least 30 days unless there is an abusive situation in which case it is very appropriate to go to another county.

Changing Paternity Laws

Changing Paternity Laws

A breakthrough case pending has divorce attorneys nationwide wondering if paternity laws are on the brink of change.

Pfizer executive Jonathan Sporn is fighting for custody of his recently deceased girlfriend’s six-month-old son. Although Sporn is not the biological father of the child, New York courts are strongly considering granting him custody.

In Oklahoma, there are many presumptions of paternity depending both on biology and marital status. If a wife gives birth during marriage (or 7 months thereafter), the husband is presumed to be the father of the child. This presumption can be overcome by affirmative proof on the part of the husband that the child is not biologically his. This proof must be offered within 2 years according to the statute, otherwise the husband is legally obligated to that child for child support purposes either until the child reaches the age of 20 or graduates high school, regardless of any evidence stating that it is biologically not his child once the two years have expired.

The presumption can provide some benefits to unsuspecting men, such as those who are not informed of a wife’s marital status, and who often are not informed of her pregnancy and are then served with a lawsuit claiming that they owe back child support for a child they never knew existed. In those cases, it is the wife’s husband who is legally responsible for the child. The other side of the coin is disconcerting; men who are the biological fathers of children born in wedlock and who want rights to that child, such as custody or visitation, are left with little remedy unless a DNA test can be timely provided (within the 2 years after the child is born).

In Sporn’s case, the child was intended to be between he and his girlfriend, although the boy was born through artificial insemination. This is just one example of how the law functions in regard to non-biological fathers, and the burdens they may have to overcome in order to gain rights to the children they love. The lesson to be learned here is to always act quickly to establish and protect one’s rights concerning children.

Social Media and Divorce

Social Media and Divorce

There are innumerable factors that can affect your interests upon divorce – including the obvious ones (child custody, distribution of assets, alimony) – and the not-so-obvious ones, like the impact social media can have on both the proceedings and your ultimate recovery.

With the availability and widespread use of social media sites like Facebook, Twitter, MySpace, and others today, it’s surprising how few people consider these outlets to have an actual and substantial impact on something as important as equitable division of assets in divorce. Here are a few things we suggest NOT to do on your Facebook when divorce is about to occur, pending, and in the process. Some considerations are to protect people’s feelings during this difficult time, and others could affect your life in a legal way.

1) Do NOT choose a social media outlet as a means of telling your spouse you want a divorce.

This should go without saying, and is more on a personal note than of any legal significance. The courts will not care how you chose to end your relationship, and since the vast majority of divorces today are no-fault (based on incompatibility rather than adultery, abuse, or other spousal misconduct), evidence such as this is completely irrelevant. However, changing your Facebook status from “Married” to “Single” without first having a conversation with your spouse will NOT make any part of this process easier for anyone involved. So if you are in any way considering doing this – don’t.

Another consideration here is whether to post about your separation after divorce is final or the separation has occurred, that’s a personal call. One thing to ALWAYS keep in mind is whether or not your children have access to your Facebook – be sure to consider them, their feelings, and the potential impact your posts could have in ANY post they may have access to. You should always put your children’s feelings first, and social media is certainly not an exception.

2) Carefully consider the contents of any post you choose to make (don’t bad-mouth your ex!) – and who may be able to see it.

Divorce is an emotional time for everyone involved – no matter who is leaving who or under what circumstances. But, just as you should not criticize or “badmouth” your spouse to your children, you should be equally tight-lipped when it comes to social media, especially if any allegations you make are untrue (lying about your spouse on a public forum could subject you to liability for defamation, aside from hurting your credibility throughout the proceedings). Not to mention that getting online and ranting and raving about what a terrible person your ex is on a regular basis will likely be brought up BY your ex in court as evidence of your “instability” or other suggestions of mental illness that could be used against you to request psychological evaluations or reduced time with your children. It’s much better (though oftentimes more difficult) to “take the high road” and keep your venomous (although admittedly valid) feelings to yourself.

Additionally, you may think this information would be difficult for your spouse to acquire – but think again. Regardless of the length of almost any marriage, you and your spouse will have friends that overlap. Unless they were YOUR close friend before and throughout the marriage, do not underestimate the value of gossip or the potential disloyalty of people you think you know well. Anyone who knows both you and your spouse is likely to “report back” the disparaging remarks you make about your ex, and fueling the fire is never a good idea.

3) Be wary of posting locations and activities.

You’re in the process of divorce, which has a strong tendency to lead to one thing in particular: alcohol. Whether you’re commiserating over the end of a relationship you cherished or celebrating over a much-needed separation, publicly posting which bars you’re frequenting on a nightly basis is a BIG mistake. These type of posts can support allegations of alcohol abuse, and don’t think for a second that your spouse will leave the kid gloves on and ignore such posts, especially if a custody battle is underway. Anything to make you look like an unfit parent CAN and WILL be thrown back in your face in front of the judge. Although I’m in no way discouraging finding healthy or fun outlets for your grief or newfound freedom, posting pictures of you doing body shots off your coworkers on a Tuesday night is generally NOT the way to go.

4) Watch the timing of certain posts – it could affect arguments over child custody.

So it’s your weekend with the kids – finally – but now that you know they’re not in your ex’s seemingly negligent care and your mom really misses them and wants to babysit, do NOT broadcast this information online. Although it is usually perfectly acceptable to leave a child in the care of a close family member during custodial visits, don’t lie and say you spent “every minute of the weekend” with your child when in fact you were out partying with your friends – especially if you tagged yourself and all your friends in Bricktown on Saturday night. This is an easy way for your ex to show the Court you are a liar, for one, but that you also do not value what little time you may have with your child. So although I’m sure you’ve had plans for your friend’s big birthday party for months (and by no means should you cancel all outside plans if you have a reliable guardian for your children), there’s no need to relay this information to your 1786 Facebook friends. It may not be fatal to your case, and some judges won’t even care – but is that a risk you really want to take?

5) Don’t broadcast your new relationship to the world – it could have serious consequences on the amount of support a court is willing to award you.

There are many adverse consequences that your new relationship could have on your divorce proceedings – for instance, we have seen the Court deny custody to parents based solely on their new husband/wife (stepmom or stepdad)’s conduct. There is also a provision in most Temporary Orders restraining both parties from bringing new romantic partners around the children for an extended period of time, and breach of that provision won’t do you any favors in this process.

Additionally, even in no-fault divorces, courts do not look kindly on adulterers. If you have children, the last thing you want to do is allow the Court to view you in a negative light.

Finally, if you are requesting any type of support alimony, having a live-in significant other WILL be fatal to your request. Alimony is based on the need of the party requesting such support, and the ability of the other spouse to pay such amount. If the Court discovers that you are already living in a situation with two incomes, it is unlikely to find that you NEED that alimony you’re requesting.

Please NOTE: I am NOT suggesting that you LIE to the Court (or your ex, for that matter) about having a new significant other. That would be committing perjury (which is a crime). The best course of action if you already have a new romantic interest in your life is generally to take things slow – don’t move in together, and don’t get married again until the 6 month period (in Oklahoma) has expired. This will be the best course of action for you and your children – especially because many children have trouble adjusting to the idea of their parent with someone other than their other parent. In the long run, it will benefit you tremendously.

Final note on social media and its potential impacts on divorce: When in doubt, deactivate your account. Losing custody rights and support payments over a silly tweet just isn’t worth it. If you feel like you cannot control your impulses to make posts or are unsure whether your posts could be detrimental – err on the side of posting nothing.

For more advice on divorce in general, or if you haven’t yet found the best divorce lawyers in town, please contact the Law Offices of Lawrence Goodwin today! (405) 605-7771.