OKLAHOMA APPEALS COURT ISSUES JOINT CUSTODY CLARIFICATION

A division of the Oklahoma Court of Civil Appeals has ruled that a Trial Judge can award Joint Custody of minor children over the objection of one of the parents.

There have been a wealth of decisions by the Oklahoma Supreme Court that allowed the termination of Joint Custody because of continuous acrimony between the parties. This has led some to believe that Joint Custody should not, or cannot, be ordered if it appeared that the parties could not operate with a high degree of cooperation.

In Bilyeu v. Bilyeu, the Court noted that the parties were quite hostile to one another during the Divorce proceedings, but also noted that both were totally devoted parents, capable of cooperation in the best interests of the children after the stresses of the proceedings were gone. Believing that Joint Custody was in the best interest of the children, the Court ordered Joint Custody over the objection of the mother. On Appeal, the Appeals Court determined that the vast majority of the past cases were not initial custody determinations, but were requests to modify a Decree after there was a demonstrated pattern of hostility not related to Court proceedings.

You can read the opinion here.

Find more information at the Oklahoma Law Website

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OKLAHOMA COURTS TO GET UNIFORM PRIVACY RULES

Change is coming to the system of access to Oklahoma Court Records. The current system is a hodgepodge, to put it mildly. Under the current scenario, Court records are accessible for the State’s 13 largest Counties through the Oklahoma Court Information System at http://www.oscn.net. Records for the other Counties, along with some Municipal and Tribal Courts through the Oklahoma District Court Records System, at http://www.odcr.com. For both systems anyone can see the Dockets (list of events) for any case, beginning with the date such records were electronically recorded, which is different for each County. For OCIS Counties, anyone can also see images of the actual documents filed, from and after the date the County began scanning the documents. The same is true for ODCR Counties, but only if you have a paid subscription. The individual Court Clerks decide, up to a pint, which records scanned and made available. (Records of Adoptions, Guardianships and Mental Health Cases, among others, are required to be sealed)

A few years ago, the Oklahoma Supreme Court issued rules that require a single uniform system for electronic storage and access to District Court Records. The pilot program (Noble County) is currently being tested. Now, however, discretion is being taken away from the Court Clerks in determining what records will be made available. Effective November 1, 2014, the Oklahoma Supreme Court is being charged with the implementation of uniform rules that will apply to all District Courts. These new rules could dramatically impact how people should approach their lawyers in the drafting an filing of documents.

Here are some examples:
-A person pleading guilty or no contest to a felony is required to complete and sign a Record of Plea form. This form contains the full name, date of birth, address and Social Security Number of the Defendant;
-In child custody cases, a wage assignment is sometimes filed, to allow for direct withholding of child support from the wages of the payor. This form contains the names, dates of birth and Social Security Numbers of the parties and the minor children;
-Orders amending birth certificates for name changes and other actions must contain, name, date and place of birth, and other information for the issuing authority to amend the records.

Once the new rules are in place and implemented, every public document filed in any Oklahoma Court, will be scanned and made available to anyone with a computer anywhere in the world. The best advice to anyone is to avoid the rush and begin practicing vigilance now. Tell your lawyer you want to review every document that will be filed at the Courthouse, and look for the inclusion of any personal identification data. If it is there, see if it can be redacted, at least partially (only the last 4 digits of account numbers and Social Security numbers). If not, see if it will be a “public record” accessible by internet download. In extreme cases, you can ask your attorney to file the document(s) under seal. This will cost more money, and will require extra care, but will be well worth it in the long run.

Finally, pay attention to the rules creation process. Prior to implementation, the Supreme Court will publish proposed rules, and ask for comments and input from the public. The best way around a bad rule is to prevent it from being enacted in the first place.

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Find more information at the Oklahoma Law Website

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New Oklahoma Law Aimed at Enforcing Visitation Rights

The Governor has signed a measure into law that is intended to make it easier for noncustodial parents to enforce visitation, when the custodial parent denies or hinders visits.  Before discussing the new law, a couple of things should be stated.  First, it should be remembered that there is no connection whatsoever between payment of child support and the grant of visitation.  They are two separate issues, and there is a remedy for nonpayment of support, short of visitation denial.  Secondly, enforcement if visitation is a real problem for noncustodial parents.  Often it is just not worth the time and hassle to attempt to remedy a single incident or intermittent violations.  The new law attempts to address these problems. Beginning November 1, 2014, if visitation is wrongfully denied by the custodial parent, the noncustodial parent can fill out a form which is to be provided by the Court Clerk.  If your Court Clerk does not have the form, or if you cannot pick one up, email me, and I will forward a PDF version of the form for you to print and fill out.  I anticipate that the filing fee will be similar to that of a Contempt Citation, so expect the fee to be anywhere from $75 to $90. Before explaining further provisions of the bill, there is one part of the form that needs to be addressed.  All noncustodial parents are strongly advised (by me) to keep a calendar or ledger specifically detailing all times that visitation is allowed (from date and time of pickup/delivery to the date and time the visit ends).  The form asks the last date on which visitation occurred and the number of times in the preceding 12 months visits have been denied.  A contemporaneous ledger will go a long way in dealing with these issues. Upon the filing of the Motion, the Court must set a hearing within 21 days of the filing date.  The new law also requires that there be a final disposition within 45 days of the date of filing.  After filing, the Motion must be served by certified mail, or as otherwise ordered by the Court.  This is important, as service by certified mail is often ineffective.  The Order for hearing specifically states that “this Order is to be served by certified mail”.  I would recommend that the filer add language the says “Service by Sheriff or Licensed Process Server is permitted”. At the hearing, the party that filed the Motion has the burden of proving (1) that the other party was properly served (by a return of service or a postal receipt for certified mail), and (2) that the custodial parent wrongfully withheld or hindered visitation.  If the moving party makes the proof, the Court must then issue an Order providing for corrective relief which can be: (1) a specific visitation schedule; (2) Compensating Visitation time, of the same type as that which was denied (weekend, holiday, etc.); (3) Posting of a bond to assure compliance in the future;  (4) Attendance at counseling or educational sessions intended to address specific issues; (5) Supervised Visitation; or any other remedy the Court deems appropriate in the specific situation.  The Court must assess costs and reasonable attorney fee to the prevailing party. The measure also provides that if the Court finds that the custodial parent has unreasonably denied or interfered with visitation three or more times, the Court must find the Custodial Parent in Contempt of Court, and impose punishments as with any other Contempt, which can include jail time, and/or fines.  This language is ambiguous.  It is unclear if the Court can find, in the first proceeding, that there have been three times that visitation has been denied, or if there must be such a finding in three separate Motions, each occurring after a determination of the last.  My guess is that the former interpretation will be the one followed.

Find more information at the Oklahoma Law Website

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Speak Now, or the Child Will Never Be Yours

The Oklahoma Court of Civil Appeals has decided yet another paternity case involving the biological father losing his rights involving a minor child by remaining silent.

The child’s mother discovered she was pregnant while living with Lopez, the biological father.  The mother and Lopez broke up and the mother began seeing Paul.  The child was born in February, 2005, and Paul signed an affidavit acknowledging paternity of the child, even though he knew the child was not biologically his.

In 2008, Paul filed a Petition, seeking custody of the child.  The Court granted custody to Paul.  Lopez was not given notice of the custody action.

In 2012, Lopez asked to intervene in the custody case.  Lopez alleged that he should have been given notice of the 2008 custody action.  The trial court allowed Lopez to intervene.  The Court of Appeals reversed.

First, the Court noted that there is a 2-year limitation on determinations of paternity.  There is also a 2-year limitation on attempts to vacate an Order of the Court.  Lopez’s application was posed 7 years after the determination of paternity, and 4 years after the Order of Custody.

The Court concluded by saying:

“[t]he significance of the biological connection of a father to a child is that it gives the father an opportunity to develop a relationship with the child. A trial judge or a litigant is not required to give special notice to a nonparty who is presumptively capable of asserting and protecting his own rights.” Hill2005 OK 11, ¶ 12 (citing Matter of C.J.S.1995 OK 70, ¶¶ 16, 17, 903 P.2d 304). Lopez admitted that he always believed he was A.P.’s biological father and that since her birth, he knew Paul was named on the birth certificate as her legal father. Lopez took no action to assert his rights until the child was seven (7) years old. Paul, in exercising his right to custody as the legal father of A.P., was not required to notify Lopez. Lopez had the knowledge and a window of opportunity to assert parental rights but failed to do so, resulting in the extinguishment of his rights.

You can read the opinion here.

Find more information at the Oklahoma Law Website

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Oklahoma Supreme Court Clarifies, Limits Grandparents’ Rights

The Oklahoma Supreme Court has clarified the issue of Grandparent’s rights, holding that grandparents’ cannot be granted “piggyback” visitation over the objection of the custodial parent.  “Piggyback visitation” is not a legal term, but loosely refers to the practice of allowing the grandparents to exercise all or some of the visitation awarded to their child in a divorce.

In Craig v. Craig, decided April 12, 2011, the father of the child at issue was granted visitation which was to be supervised by his parents until he completed a counseling program.  Father never actively sought to visit with the child, but allowed his parents to exercise his visitation time.  When a dispute arose between the child’s mother (the custodial parent) and the grandparents, the mother stopped allowing  the child to visit the grandparents on the schedule that had been followed.  Grandparents sought a Court Order granting them their son’s visitation.  The trial court granted the grandparents’ request.

The Supreme Court reversed.  The Court acknowledged that in the past, it had upheld orders that allowed grandparents to exercise their child’s visitation, but held that those cases would no longer be followed.  The opinion still allows for Orders that are agreed by the parties to be entered, but now requires that in the future, grandparents seeking visitation will be required to make an affirmative showing that the custodial parent is unfit, ot that some definite harm to the child will result if the visitation is not granted.  It reiterated that a general showing that continued contact between the grandparents and the child would be in the child’s best interests, or beneficial to the child, will not be sufficient to show that harm will result if the request is denied.

You can read the opinion here.

**UPDATE:  In the 2013 Decision in Hillhouse v. Fitzpatrick, the Oklahoma Court of Civil Appeals held that under the Grandparental Visitation Statute, anyone seeking grandparental visitation must do so by filing a separate independent Petition, rather than seeking to intervene in the Divorce action of the minor’s parents.

 

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Canadian Judge Blasts Actions of Divorcing Couple

A Canadian couple presented the Judge with so much evidence of the vile actions perpetrated by the other, the Judge finally ended the matter – with a 31 page opinion blasting each of them with humor and ridicule.  Some excerpts:

“Catherine denied access entirely to Larry from some point in January of 2010 up to the commencement of the four-month hiatus in the trial (May-October of 2010). This was a remarkably bold step on her part, taken without reasonable excuse or explanation. Most litigants are on their best behaviour as their trial approaches. Her conduct reflects the lack of respect she has for the legal system and the utter disregard with which she treats Larry’s parental rights. She is a law onto herself. She is also oblivious to her lack of objectivity in matters of access.”

“Absent counselling, matters will worsen, not improve. No practical purpose would be served if the court were to decree a schedule of counselling for the parties and the children. The hate and psychological damage that now prevail would require years of comprehensive counselling to undo. The legal system does not have the resources to monitor a schedule of counselling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes at a given point in time. I preside over a court, not a church.”

“Despite the involvement of Niagara Family and Children’s Services, Ms. Katz, Mr. Leduc and the court, the parties repeatedly have shown that they are immune to reason. Consequently, in my decision, I have tried ridicule as a last resort.”

“A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.” (Referring to testimony that Husband “gave the finger” to Wife’s current partner)

“When the operator of a motor vehicle yells “jackass” at a pedestrian, the jackassedness of the former has been proved, but, at that point, it is only an allegation as against the latter”

You can read the story here or, if you have a few minutes, you can read the full opinion, with the more caustic footnotes here.

 

 

Together We Can Do Nothing

70% of the electorate in Oklahoma now rests easier knowing we have preemptively prevented the evil Muslim world from invading and taking over our Court system.  Oklahoma has overwhelmingly enacted State Question 755 which bans International Law, and specifically Sharia Law, from consideration in our Courts.  The voters paid to have the measure on the ballot, so now the voters should know what they are getting.

It is true that “Sharia Courts” have sprung up in England and Canada.  It is also true that there is a growing movement, notably in the Detroit area, to establish such “Courts”.  So just what is a “Sharia Court”?

A Sharia Court is an organization of arbitrators that use Islam to render decisions.  They are not Courts of Law or Equity, and their decisions do not have the force of law.  They are used by parties to litigation to settle an issue or dispute outside the Court process.  The decision is then presented to a Court of Law in the form of an agreed Order or Judgment.

The process begins with the parties mutually agreeing to submit their issue or dispute to Arbitration.  The parties must also mutually agree to an Arbitrator.  If there is no agreement as to Arbitration or the Arbitrator, then Arbitration does not occur.

Oklahoma has enacted the Arbitration Act, that allows parties, including divorcing couples, to submit voluntarily to Arbitration.  That is not affected by the new State Question.  Parties can still agree to the Arbitration, and even to an Arbitrator that will use Islam as the basis for it’s decision.  The Court, under the Arbitration Act, will still approve the agreement, so long as the terms of the agreement do not conflict with Oklahoma law or public policy.  This is exactly as it was before the election.

Debates are raging and challenges are pending.  A lot of money and energy will be expended attacking or defending the mew law.  In the meantime, countless thousands of Oklahomans will watch intently, as they wonder how they are going to keep their homes out of foreclosure.