What does “Best Interest” Mean in  Determining Physical Custody or Legal Custody of a Minor Child?

By Pansy Moore-Shrier

When a trial court is determining physical custody or legal custody of a minor child as between two parents, the trial court must consider the best interest of the minor child. Oklahoma law does not define how to determine “best interest.” While many other states[1] have a statutory list of best interest factors a trial court must consider, Oklahoma does not. Until Oklahoma enacts a statutory list of factors, this article provides a summary of the best interest factors that are found in various cases and piecemeal in various statutes.

Determining “best interest.”

While the legislature has not developed a list of best interest factors to consider in determining physical custody or legal custody as between two parents, a court opinion has identified the best interest factors to consider in terminating a guardianship. Also, the legislature has identified best interest factors to consider in determining whether a parent can relocate with a minor child.

In a guardianship case, the best interest factors to be considered in terminating the guardianship are:

(1) the desires of the child;
(2) the emotional and physical need of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.[2]

In a relocation case, the best interest factors to be considered[3] in determining whether a primary parent can move with the minor child are:

  1. the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child’s life,
  2. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child,
  3. the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties,
  4. the child’s preference, taking into consideration the age and maturity of the child,
  5. whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating person,
  6. whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity,
  7. the reasons of each person for seeking or opposing the relocation, and
  8. any other factor affecting the best interest of the child.[4]

Best interest factors applicable in physical custody or legal custody.

Because there is no statutory list of factors set forth by the legislature to determine best interest, we look to case law (court opinions). Following are some of the factors that court opinions identify as a best interest factor:

  • Ability of each parent[5] to care for the child, including any medical problems/health issues/special needs of the child.[6]
  • Stability of environment for the child while in the care of each parent.[7]
  • The relationships with other family members and siblings available in each home.[8]
  • Friends, extracurricular activities, and school contacts available in each parent’s care.[9]
  • Interest the parent shows in the child/relationship of each parent to the child.[10]
  • Financial ability of each parent to care for the child.[11]
  • Preference of the minor child.[12]
  • The parent’s interference or promotion (nurturing) of the relationship of the other parent with the child.[13]
  • Ability of parents to communicate and co-parent together, including hostility between the parties.[14]
  • Moral environment/moral transgressions of a parent.[15]
  • Making of false or frivolous allegations of child abuse or neglect against the other parent.[16]

Additionally, the following factors to consider are identified in various statutes:

  • The parent’s likelihood to allow the child to have frequent and continuing contact with both parents.[17]
  • Whether a parent:
  • Is or has been subject to the registration requirements of the Oklahoma Sex Offenders Registration Act1 or any similar act in any other state;
  • Has been convicted of a crime listed in the Oklahoma Child Abuse Reporting and Prevention Act2 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 an individual 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 who has been convicted of domestic abuse within the past five (5) years.[18]

Whether a parent has made a frivolous or false allegation of child abuse or neglect against the other parent.[19]

  1. A parent’s failure to notify of a relocation of the child.[20]

Additionally, there are certain factors that a trial court cannot consider:

  1. No presumption to award custody of child based upon a parent’s gender.[21]
  2. No preference should be given for or against home schooling, public schooling, or private schooling.[22]

Conclusion.

There are many factors a trial court should consider in determining the best interest of minor children for physical custody and legal custody.[23] It is, however, the parent’s responsibility (or your attorney’s responsibility, if you have one) to present the necessary evidence to the trial court so that it may make the best decision.  If you have a custody dispute, you should contact an attorney experienced in family law matters to provide you legal advice.  [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

 

[1] At least 36 states, plus the District of Columbia, have a statute listing the best interest factors the trial court should consider.

[2] In re Guardianship of H.D.B., 2001 OK CIV APP 147, 38 P.3d 252.

[3] As an initial matter, the trial court must determine whether the relocating parent is the primary parent and whether the request to relocate is made in good faith. If the trial court finds the request to relocate is made in good faith, then the burden shifts to the other parent to prove the move is not in the minor child’s best interest. If the trial court finds that the requested relocation is not made in good faith, then the burden remains on the relocating parent to prove that the move is in the best interest of the minor child. See, e.g., Boatman v. Boatman, 2017 OK 27, 404 P.3d 822.

[4]43 O.S. § 112.3(J)(1)(a)-(g).

[5] This also includes the parent’s mental, emotional, and physical ability to provide care the child.

[6]Rice v. Rice, 1979 OK 161, 603 P.2d 1125; Alonzo v. Alonzo, 1996 OK CIV APP 48, 917 P.2d 1014; Hurt v. Hurt, 1957 OK 208, 315 P.2d 957.

[7] Gilbert v. Gilbert, 1969 OK 133, ¶ 6, 460 P.2d 929; Marriage of Bilyeu v. Bilyeu, 2015 OK CIV APP 58, 352 P.3d 56; Ynclan v. Woodward, 2010 OK 29, 237 P.3d 145, 151.

[8] Wood v. Redwine, 2001 OK CIV APP, 33 P.3d 53; Marriage of Bilyeu v. Bilyeu, 2015 OK CIV APP 58, 352 P.3d 56.

[9] Marriage of Bilyeu v. Bilyeu, 2015 OK CIV APP 58, 352 P.3d 56.

[10] Rice v. Rice, 1979 OK 161, 603 P.2d 1125; Park v. Park, 1980 OK CIV APP. 19, 610 P.2d 826; Hurt v. Hurt, 1957 OK 208, 315 P.2d 957.

[11] Acox v. Acox, 2000 OK CIV APP 136, 18 P.3d 363; Bourlon v. Bourlon, 1983 OK CIV APP 52, 670 P.2d 1004.

[12] Foshee v. Foshee, 2010 OK 85, 247 P.3d 1162.

[13] Taylor v. Taylor, 1984 OK CIV APP 2, 676 P.2d 867; Wilson v. Franek, 2015 OK CIV APP 67, 355 P.3d 863.

[14] Broadbent v. Broadbent, 2019 OK CIV APP 61, 451 P.3d 930; Marriage of Bilyeu v. Bilyeu, 2015 OK CIV APP 58, 352 P.3d 56; Foshee v. Foshee, 2010 OK 85, 247 P.3d 1162; Caber v. Dahle, 2012 OK CIV APP 19, 272 P.3d 733.

[15] Well v. Wells, 1982 OK 83, 648 P.2d 1223 (overruled on other grounds regarding child support issue). Marriage of Bilyeu v. Bilyeu, 2015 OK CIV APP 58, 352 P.3d 56; Brady v. Brady, 1979 OK CIV APP 60, 603 P.2d 361; Cooper v. Cooper, 1980 OK CIV APP 12, 610 P.2d 1226.

[16] Slate v. Chadwick, 2010 OK CIV APP 38, 232 P.3d 916.

[17] 43 O.S. § 112(C).

[18] 43 O.S. § 112.2(A)(1-7).

[19] 43 O.S. § 107.3(D)(2).

[20] 43 O.S. § 112.3(F)(1)(b).

[21]43 O.S. § 112(C)(3)(b).

[22] 43 O.S. § 112(C)(4).

[23] In determining legal custody, there are several other factors the trial court considers in addition to the best interest of the child, e.g., the parents’ ability to communicate productively with one another. As always, if you have questions, you should seek the advice of an attorney licensed in your state who is familiar with family law issues.