Jurisdiction in a custody and divorce case with multiple states

December 12, 2011 in Uncategorized

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.

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

March 23, 2011 in Oklahoma Divorce

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.

Who gets the house if we’re not married?

January 22, 2011 in Oklahoma Divorce

Who gets the house if we’re not married?

In some circumstances, this is a very difficult question. Usually when we’re handling cases for people splitting up, we are generally working with divorces. With divorce, there are statutory laws and case laws in place that direct us and give us some sort of sense as to how property should be divided. We’ve previously written about what happens during child custody disputes for people who are unmarried; today we’re going to briefly speak about property disposition alone.

If, in fact, you and your partner have not been legally married or are not in a common law marriage, then the situation is one of straight contract law governing two adults who’ve entered into certain contractual arrangements to purchase real estate and other personal property. This can be a very difficult area in which to determine an outcome; the Court will be at a disadvantage because we don’t have the firm guidelines we would with a divorce. Simply put, you always want to protect yourself when you’re in a relationship and start mixing in business aspects with your personal relationships.

Recently, I received a phone call from a potential client who had been in a relationship with a man for approximately one year. She owns her own home, but the two of them decided to move into a separate home that they purchased together. My client put down a hefty sum of money as the down payment with the idea that they would be living together eventually as husband and wife. The home was purchased and the note and mortgage were placed in the gentleman’s name. However, thanks to my client being quick on her feet, she insisted that her name was put on the deed (which took some doing since these people were not legally married in Oklahoma). Just because you aren’t married does not mean you cannot have your name placed on the deed, and I most certainly recommend you do so to protect your interests. Any time you purchase property whether it be a car, home or other types of personal property, your name should be on the deed.

Even though her name was on the deed, we are still caught in a difficult position. Now that their relationship is ending, who is going to get the home? This is yet to be determined, but I think I’ll propose that one of the parties remain in the home and purchase the other party’s interest in the property. In the case at hand, since my client put down tens of thousands of dollars as the down payment, she should request that her ex-boyfriend repay her the money she spent as the down payment. Alternatively, since she payed the entire down payment, he could sign an instrument giving up any interest or claim he has in the home. Then she would be free to move forward and sell the home, or do whatever she needs to do to recoup her investment. Long story short, you must be sure to protect yourself anytime you’re entering into any kind of contractual relationship with a person that is not your spouse.

Proposed new Oklahoma Divorce Law

February 24, 2010 in Oklahoma Divorce | No comments

There have been some recent articles written about proposed legislation in Oklahoma to make it more difficult to either get married or in the alternative make it more difficult to get divorced. I think both of these are coming dangerously close to infringing on people’s constitutional right to marry. The right to marry is one of the fundamental closely held values and principles of the United States constitution and I think it’s really bad business when legislators start dabbling in that area. No one likes the fact that Oklahoma has led the nation in the last couple of decades for the highest divorce rate in the country, however the answer cannot simply be, “let’s put more roadblocks in the way of people trying to get married” or in the alternative “let’s put more roadblocks in the way of people trying to get out of bad marriages”. I just don’t see that as a solution. I think that certain, very closely scrutinized, least restrictive means for some impediments to the easy road to marriage might be in order. In other words, maybe we should force people to undergo at least an hour or two hours of counseling prior to being given a marriage license. I know that certain counties give you a discount on your marriage license if you can prove that you’ve undergone the premarital counseling. I think these are all good ideas. However there are just so many reasons marriages fall apart; money, violence, adultery, you name it. Sometimes you just cannot be prepared. What impediments are we going to start putting on people’s lives to force them to stay in loveless marriages? Is it really any better for the family? Is it really any better for the children to see their parents not enjoying each other’s company anymore, or is it putting people in dangerous positions because they can’t afford to get out.

I think divorce is already difficult enough; both the financial and physical stress of a pending divorce can be quite ominous for most folks. I don’t think that making some arbitrary waiting period is going to necessarily have an effect on our divorce rate. If anything, what we will end up doing is running people out of the state of Oklahoma to go get divorced. That’s not good for the lawyers, the judges, or the judicial system in Oklahoma. It’s not good for our residents. If we look to current Oklahoma law, when people get divorced in Oklahoma they are prohibited from remarrying except to each other for a period of six months, but as we all know there have been countless numbers of people who’ve gotten divorced in Oklahoma and gone to other states within the six months to get remarried. That’s all that we would be doing to set ourselves up to run our problems (i.e. divorce rate) into neighboring states. They would be overwhelmed and flooded with people trying to set up quick residency there to file divorces. It simply won’t solve the problem. People need to take a little more time to get to know one another and figure out whether they want to get married or not. I think a better way to manage our divorce rate in Oklahoma, if we really want to solve the problem, is for us spend a little more money on education. I think the high rate of divorce in Oklahoma is at least somewhat related to the fact that we are consistently in the lower tier of education in the United States. Because of this, you see a high correlation between a high divorce rate in Oklahoma and our underfunded, underachieving educational system. We’ve got lots of folks getting married and maybe they’re getting married for the wrong reasons, but I do not think putting impediments to people’s right to marry and right to get unmarried is the way to address the growing problem of the high divorce rate in Oklahoma.

Lawrence “Lorenzo” Goodwin

Oklahoma City Divorce Attorney

1315 N. Shartel

Oklahoma City, OK 73103

Common Law Marriage In Oklahoma

January 4, 2010 in Common Law Marriage, Oklahoma Divorce | No comments

Today we’re going to talk a little bit about common law marriage. It’s an interesting topic in Oklahoma because Oklahoma is one of the very few states that still recognizes it’s existence. What does it take to be common law married? Well, some people believe that it’s simply living together for some period of time. That’s not what Oklahoma law says.

Typically the most important thing to look at when trying to discern whether or not a couple is common law married is what they believed. So we look to what the putative husband and wife believed. Did they believe that they were married? If in fact, they did believe they were married, then they probably were. What the common law marriage statutes and case law attempt to provide for, at least in my opinion, is for some sort of a semblance of the “family union”.

When people are living together and acting as husband and wife but have neglected for whatever reason, to go get the marriage license and have any sort of ceremonial wedding, then the state interjects a presumed marriage to protect the parties and any children. I think it’s more of a protection of the family unit in as much as the legislature and the judges and different jurisdictions have provided that when people act as husband and wife, procreate, have children, raise a family together, etc. we ought to protect them, the husband and wife in the event of untimely deaths to ensure certain rights are protected for either spouse and for the children of the marriage.

What we look for to determine the existence of a common law marriage is typically at least six months of cohabitation, however there are other signs of intent to be married. Did these people hold themselves out as husband and wife? In other words, when they introduced themselves to strangers, did they do so as husband and wife or boyfriend and girlfriend or did they make any determination or label at all?

It’s an interesting topic, there’s more to come on it and it will definitely affect people’s rights here in Oklahoma more and more as long as the Courts continue to recognize it. So, when we attempting to determine the existence of a common law marriage we look to cohabitation, tax returns, utility bills, bank accounts, or any other signs that they were doing business together as a couple. Most importantly, first and foremost, did this couple hold themselves out as husband and wife? Did they believe they were married?

Lawrence “Lorenzo” Goodwin – Oklahoma City Family Law Attorney

(405) 605-7771

1315 N. Shartel

Oklahoma City, OK 73103

Tags: , ,

Divorce In Oklahoma

January 4, 2010 in Oklahoma Divorce | No comments

It’s all over but the crying…….

Now you have a baby and the relationship is over. Do you need a divorce? Or is something else in store for you? In Oklahoma we still recognize common law marriage. So, it’s possible, though you didn’t walk down the aisle, buy a ring, invite a hundred guests and spend a ton of money to have a big wedding, that you were in fact married. However, it’s just as likely, that you weren’t. There are many factors to look at when considering whether or not your union was recognized in the state of Oklahoma. The easiest way to recognize this is to ask yourself, “were we married?” If your answer is no, you probably weren’t. If yes, then you might have been. The court will look at many factors to determine this, including tax returns, whether or not you file jointly, joint bank accounts, utility bills, and etc. For purposes of this discussion, we’re going to assume that you were in fact not married and that you were living (or staying) with someone of the opposite sex for some period of time at least sufficient enough to have had a child.

We’re going to examine this from the perspectives of both mom and dad. We’re going to start with mom. Now, most women who find themselves in this position, unmarried single mother, they tend to need help. They need help both financially and emotionally, and they may or may not be getting it. The law says your child is entitled to the adjudication that his father is in fact his father and the entitlement to Court ordered support.

What is most typical of people who come to my office is that they have already visited with the Department of Human Services. However, from both dad and mom’s perspectives, I am not sure that DHS can offer answers to all the questions. For instance, their sole jurisdiction is over the child support issue, in other words they cannot and will not issue any orders as to custody and vistation. They don’t have the jurisdiction and an administrative body is not empowered with the ability to make those types of decisions such as who (mom or dad) should have custody and when the other one, that doesn’t have custody, should have visitation.

This is where the Petition to Establish Paternity is a useful tool. It is likened to a divorce but it is for people who are not married but that do have children together. It functions similar to a divorce. One party sues the other for a petition to establish paternity, either mom or dad. Now, a lot of people get confused when they come into the office, they often say “oh, we already signed the form at the hospital.” Well, no you didn’t. You might have signed an acknowledgement of paternity at the hospital, you may have even attended a DHS administrative hearing and at that hearing they may have even found that you were the father and paternity may have been established, but big deal. Did that give you Thanksgiving visitation or Christmas Eve or your son or daughter’s birthday with them? No, it got you child support obligations. So what we are talking about is the actual function in district court, which will establish all of the paternal rights. That includes the visitation rights, child support and so on.

Oklahoma has turned away from what we call The Tender Years Doctrine, or in other words that “mothers are somehow more capable of taking care of children while children are very young”. That type of case law and legislation has gone away in Oklahoma and we adopted a much more opened minded and new day perspective wherein fathers are just as capable and should be allowed “substantially equal visitation” with their children. The new temporary order statutes in divorce law say that the Court shall start at substantially equal time and work away from that for good cause shown. Whereas ten to fifteen years ago a gentlemen may have felt that it was an uphill battle for him to come into Court and fight for his ability to spend equal time with his children, now the Courts say that they are going to start with each party having “substantially equal time” with the child unless there is good reason not to have such a schedule.

The process for a petition to establish paternity, much like a divorce, begins with a petition being filed, being served upon the other party, and the we have a temporary order hearing set fairly quickly in the future, usually about thirty days. At that hearing, we try to establish, if we can, by agreement, the paternity of the father. If we can’t, then we will have the Court order a genetic test and we continue the temporary order for review in about sixty days. If all parties can agree that dad is in fact the father, then we move forward with the issues, like custody, visitation, child support, tax exemptions, holiday visitations, etc. The more that is established at that temporary order (the first order) the better because it will allow less to be decided in a final order. If it’s hotly contested, however, as many of these are, and virtually nothing can be agreed upon, then we go in and have a hearing in front of the Judge who will decide the issues of custody and visitation. Many of those other issues will be left for what we call a trial on the merits. Depending on what county you are in, this could be any where from a couple of months to a year down the road before you are heard on your trial on the merits.

The point of today’s blog is simply that if you are the father or the mother, depending on your situation, you might feel that you have a lot to complain about. The upshot is that you have this bouncing new baby to be happy and proud of so enjoy them. If you are from the father’s perspective feeling that the mother is making all the decisions and calling the shots, has all the control and all you are wanting to do is see your child, this is a good vehicle to get you your visitation time with your child. From a mother’s perspective, you’ve got the whole world on your shoulders, all the responsibility, you need some help and DHS is not getting the child support to you quickly enough, this is a great vehicle for you. Here, when you hire a private lawyer to do this petition to establish paternity, we can take your case on a one on one basis and move it along so that hopefully we would have some results in a much quicker time frame. This can bring you the peace of mind of having child support assistance quickly. Additionally, if your significant other fails to make that child support obligation, we would be able to assist you in enforcing that Court order with the Court’s contempt powers and other resources available.

Thanks. I hope this was informative. If you have any questions please do not hesitate to post them. Thanks again.

Lawrence Goodwin – Oklahoma City Divorce and Family Law Attorney

(405) 605-7771

1315 N. Shartel

Oklahoma City, OK 73103

Tags: , , , ,