Presumptions in Family Law Cases on Legal and Physical Custody

There are a number of presumptions that apply in family law cases that can impact the decision reached by the Court on legal custody and physical custody of your minor children.

What is a presumption?

A presumption means that if you prove a certain fact (“basic fact”), then another fact is presumed (“presumed fact”). Once the presumed fact is assumed, then the burden of proof shifts to the other side to prove that the presumption should not apply, i.e., to rebut the presumption.

Example:

In a custody action, Parent A is proven to have committed domestic violence (“basic fact”). The presumption, under Oklahoma law, is that Parent A should not have custody of the minor child (“presumed fact”). The burden then shifts to Parent A to prove that s/he should have custody of the minor child.

List of presumptions related to legal and physical custody:

1. In every proceeding in which there is a dispute as to the custody of a minor child, a determination by the court that 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 domestic violence, harassing or stalking behavior is detrimental and not in the best interest of the child, and it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic violence, harassing or stalking behavior.
43 O.S. 109(I)(1).

2. In every case involving the custody of, guardianship of or visitation with a child, the court shall consider evidence of domestic abuse, stalking and/or harassing behavior properly brought before it. If the occurrence of domestic abuse, stalking or harassing behavior is established by a preponderance of the evidence, there shall be a rebuttable presumption that it is not in the best interest of the child to have custody, guardianship, or unsupervised visitation granted to the person against whom domestic abuse, stalking or harassing behavior has been established.
43 O.S.§ 109.3.

3. There shall be a rebuttable presumption that it is not in the best interests of the child to have custody or guardianship granted to a person who:

• Is subject to or has been subject to the registration requirements of the Oklahoma Sex Offenders Registration Act or any similar act in any other state;

• Has been convicted of a crime listed in the Oklahoma Child Abuse Reporting and Prevention Act or in Section 582 of Title 57 of the Oklahoma Statutes;

• Is an alcohol-dependent person or a drug-dependent person as established by clear and convincing evidence and who can be expected in the near future to inflict or attempt to inflict serious bodily harm to himself or herself or another person as a result of such dependency;

• Has been convicted of domestic abuse within the past five (5) years;

• Is residing with a person who is or has been subject to the registration requirements of the Oklahoma Sex Offenders Registration Act or any similar act in any other state;

• Is residing with a person who has been convicted of a crime listed in the Oklahoma Child Abuse Reporting and Prevention Act or in Section 582 of Title 57 of the Oklahoma Statutes; or

• Is residing with a person convicted of domestic abuse within the past five (5) years.
43 O.S. § 112.2(B).

4. A child who is twelve (12) years of age or older is of a sufficient age to form an intelligent preference for which parent should have legal custody and physical custody, and to express that preference to the Court.
43 O.S. § 113(C).

It is important to note that there is no presumption for the following:

1. For or against joint legal custody, joint physical custody, or sole custody. 43 O.S § 112(C)(2).

2. For custody to a parent based upon that parent’s gender. 43 O.S. § C(3)(b).

3. For or against private or public school or home-schooling in determining to whom to award custody. 43 O.S. § 112(C)(4).

Conclusion:

Application of a legal presumption can have a drastic impact upon the outcome of your case. If you have questions or concerns on how legal presumptions may impact your case, you should talk to an attorney experienced in family law issues. [Disclaimer: Nothing contained herein is intended to be legal advice or to create an attorney-client relationship. Any information contained herein is for general information purposes only.]

By Pansy Moore-Shrier
pansy@mstulsalaw.com
www.mstulsalaw.com
624 South Boston Avenue, Ste. 1070 Tulsa, OK 74119
PH 918-592-3001
FX 918-794-7149