What is the correct way to get an order for visitation if it was not set out in the divorce?
Full Question:
Answer:
Your first question was unclear as to whether the visitation decision had been made, but just not entered into the court records. A writ of mandamus is used to have an official carry out a required duty, rather than to force a change of decision. Visitation is governed by state, rather than federal laws. Oklahoma law allows a judge not to make an order for visitation with the non-custodial parent if the judge thinks it's against the child's best interests. The decision is a subjective determination based on the facts and circumstances in each case.
The first state to impose a custody order retains "continuing exclusive jurisdiction" as long as one of the parties continues to reside in that state or if both parties agree to transfer jurisdiction to another state. Another state may modify the decree only if the original state no longer has jurisdiction over the case or has declined jurisdiction to modify the custody or visitation decree.
In making a determination on whether a change of venue motion should be granted, the judge will consider things such as:
• Where the child now lives and how long the child has lived there
• Where each party lives
• The financial situations of the people involved
• The nature and location of the evidence needed in the case (including child testimony and other witnesses)
• Any other things that the judge thinks are important
If no state has made a valid custody determination, the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, as adopted by each state, will apply. A court in a particular state has power to hear a custody case if that state is the child's "home state" or has been the home state of the child within six months of the date the legal action was brought and at least one parent continues to reside in the state. Other situations include those in which a state with jurisdiction over a custody case declines jurisdiction or no other state may assert jurisdiction over the child.
In modification proceedings, it will be the law of the "continuing exclusive jurisdiction" state which will govern whether or not the nonresident has custody. Note, however, that for enforcement purposes, it will be the law of the enforcing state that will govern enforcement proceedings.
I suggest you contact a local attorney who can review all the facts and documents involved.
For further discussion, please see:
http://www.millenniumdivorce.com/Articles-Divorce/Change-Divorce-Judge.asp
The following are OK statutes:
§ 43-111.1A. Standard visitation schedule — Advisory guidelines
A. By January 1, 2005, the Administrative Director of the Courts shall
have developed a standard visitation schedule and advisory guidelines
which may be used by the district courts of this state as deemed
necessary.
B. The standard visitation schedule should include a minimum graduated
visitation schedule for children under the age of five (5) years and a
minimum graduated visitation schedule for children five (5) years of age
through seventeen (17) years of age. In addition, the standard visitation
schedule should address:
1. Midweek and weekend time-sharing;
2. Differing geographical residences of the custodian and noncustodian
of the child requesting visitation;
3. Holidays, including Friday and Monday holidays;
4. Summer vacation break;
5. Midterm school breaks;
6. Notice requirements and authorized reasons for cancellations of
visitation;
7. Transportation and transportation costs, including pick up and
return of the child;
8. Religious, school, and extracurricular activities;
9. Grandparent and relative contact;
10. The birthday of the child;
11. Sibling visitation schedules;
12. Special circumstances, including, but not limited to, emergencies;
and
13. Any other standards deemed necessary by the Administrative Director
of the Courts.
C.
1. The Administrative Director of the Courts shall develop advisory
guidelines for use by the district courts when parties to any action
concerning the custody of a child are unable to mutually agree upon a
visitation schedule.
2. The advisory guidelines should include the following considerations
at a minimum:
a. a preference for visitation schedules that are mutually agreed upon
by both parents over a court-imposed solution,
b. a visitation schedule which should maximize the continuity and
stability of the life of the child,
c. special considerations should be given to each parent to make the
child available to attend family functions, including funerals,
weddings, family reunions, religious holidays, important ceremonies, and
other significant events in the life of the child or in the life of
either parent which may inadvertently conflict with the visitation
schedule,
d. a visitation schedule which will not interrupt the regular school
hours of the child,
e. a visitation schedule should reasonably accommodate the work
schedule of both parents and may increase the visitation time allowed to
the noncustodial parent but should not diminish the standardized
visitation schedule provided in Section 111.1[43-111.1] of Title 43 of
the Oklahoma Statutes,
f. a visitation schedule should reasonably accommodate the distance
between the parties and the expense of exercising visitation,
g. each parent should permit and encourage liberal electronic contact
during reasonable hours and uncensored mail privileges with the child,
and
h. each parent should be entitled to an equal division of major
religious holidays celebrated by the parents, and the parent who
celebrates a religious holiday that the other parent does not celebrate
shall have the right to be together with the child on the religious
holiday.
D. The Administrative Director of the Courts shall:
1. Make the standard visitation schedule and advisory guidelines
available to the district courts of this state; and
2. Periodically review and update the guidelines as deemed necessary.
§ 43-112. Care and custody of children
A. A petition or cross-petition for a divorce, legal separation, or
annulment must state whether or not the parties have minor children of
the marriage. If there are minor children of the marriage, the court:
1. Shall make provision for guardianship, custody, medical care,
support and education of the children;
2. Unless not in the best interests of the children, May provide for
the visitation of the noncustodial parent with any of the children of the
noncustodial parent; and
3. May modify or change any order whenever circumstances render the
change proper either before or after final judgment in the action;
provided, that the amount of the periodic child support payment shall not
be modified retroactively or payment of all or a portion of the past due
amount waived, except by mutual agreement of the obligor and obligee, or
if the obligee has assigned child support rights to the Department of
Human Services or other entity, by agreement of the Department or other
entity. Unless the parties agree to the contrary, a completed child support
computation form provided for in Section 120[43A-120] of this title
shall be required to be filed with the child support order.
The social security numbers of both parents and the child shall be
included on the child support order summary form provided for in Section
120[43A-120] of this title, which shall be submitted to the Central Case
Registry as provided for in Section 112A[43A-112A] of this title with
all child support or paternity orders.
B. In any action in which there are minor unmarried children in
awarding or modifying the custody of the child or in appointing a general
guardian for the child, the court shall be guided by the provisions of
Section 21.1[10-21.1] of Title 10 of the Oklahoma Statutes and shall
consider what appears to be in the best interests of the child.
C.
1. When it is in the best interests of a minor unmarried child, the
court shall:
a. assure children of frequent and continuing contact with both parents
after the parents have separated or dissolved their marriage, and
b. encourage parents to share the rights and responsibilities of child
rearing in order to effect this policy.
2. There shall be neither a legal preference nor a presumption for or
against joint legal custody, joint physical custody, or sole custody.
3. When in the best interests of the child, custody shall be awarded in
a way which assures the frequent and continuing contact of the child with
both parents. When awarding custody to either parent, the court:
a. shall consider, among other facts, which parent is more likely to
allow the child or children frequent and continuing contact with the
noncustodial parent, and
b. shall not prefer a parent as a custodian of the child because of the
gender of that parent.
4. In any action, there shall be neither a legal preference or a
presumption for or against private or public school or home-schooling in
awarding the custody of a child, or in appointing a general guardian for
the child.
5. Notwithstanding any custody determination made pursuant to the
Oklahoma Children's Code, Section 7001-1.1[10-7001-1.1] et seq. of Title
10 of the Oklahoma Statutes, when a custodial parent of a child is
required to be separated from a child due to military service, a court
shall not enter a final order modifying an existing custody order until
such time as the custodial parent has completed the term of duty
requiring separation. For purposes of this paragraph:
a. In the case of a parent who is a member of the Army, Navy, Air
Force, Marine Corps or Coast Guard, the term "military service" means a
combat deployment, contingency operation, or natural disaster requiring
the use of orders that do not permit any family member to accompany the
member; and
b. In the case of a parent who is a member of the National Guard, the
term "military service" means service under a call to active service
authorized by the President of the United States or the Secretary of
Defense for a period of more than thirty (30) consecutive days under
32 U.S.C. 502(f) for purposes of responding to a national emergency
declared by the President and supported by federal funds. "Military
service" shall include any period during which a member is absent from
duty on account of sickness, wounds, leave or other lawful cause.
6. In making an order for custody, the court shall require compliance
with Section 112.3[43A-112.3] of this title.
D.
1. Except for good cause shown, a pattern of failure to allow
court-ordered visitation May be determined to be contrary to the best
interests of the child and as such May be grounds for modification of the
child custody order.
2. For any action brought pursuant to the provisions of this section
which the court determines to be contrary to the best interests of the
child, the prevailing party shall be entitled to recover court costs,
attorney fees and any other reasonable costs and expenses incurred with
the action.
E. Except as otherwise provided by Section 112.1A[43A-112.1A] of this
title, any child shall be entitled to support by the parents until the
child reaches eighteen (18) years of age. If a child is regularly enrolled
in and attending high school, as set forth in Section 11-103.6[70-11-103.6]
of Title 70 of the Oklahoma Statutes, other means of high school education,
or an alternative high school education program as a full-time student,
the child shall be entitled to support by the parents until the child
graduates from high school or until the age of twenty (20) years,
whichever occurs first. Full-time attendance shall include regularly
scheduled breaks from the school year-. No hearing or further order is
required to extend support pursuant to this subsection after the child
reaches the age of eighteen (18) years.
F. In any case in which provision is made for the custody or support of
a minor child or enforcement of such order and before hearing the matter
or signing any orders, the court shall inquire whether public assistance
money or medical support has been provided by the Department of Human
Services, hereafter referred to as the Department, for the benefit of
each child. If public assistance money, medical support, or child support
services under the state child support plan as provided in Section
237[56-237] of Title 56 of the Oklahoma Statutes have been provided for
the benefit of the child, the Department shall be a necessary party
for the adjudication of the debt due to the State of Oklahoma, as defined
in Section 238[56-238] of Title 56 of the Oklahoma Statutes, and for the
adjudication of paternity, child support, and medical insurance coverage
for the minor children in accordance with federal regulations. When an
action is filed, the petitioner shall give the Department notice of the
action according to Section 2004[12-2004] of Title 12 of the Oklahoma
Statutes. The Department shall not be required to intervene in the action
to have standing to appear and participate in the action. When the
Department is a necessary party to the action, any orders concerning
paternity, child support, medical support, or the debt due to the State
of Oklahoma shall be approved and signed by the Department.
G. In any case in which a child support order or custody order or both
is entered, enforced of modified, the court May make a determination of
the arrearages of child support.
§ 43-110.1. Policy for equal access to the minor children by parents
It is the policy of this state to assure that minor children have
frequent and continuing contact with parents who have shown the ability
to act in the best interests of their children and to encourage parents
to share in the rights and responsibilities of rearing their children
after the parents have separated or dissolved their marriage. To
effectuate this policy, if requested by a parent, the court shall provide
substantially equal access to the minor children to both parents at a
temporary order hearing, unless the court finds that such shared
parenting would be detrimental to such child. The burden of proof that
such shared parenting would be detrimental to such child shall be upon
the parent requesting sole custody and the reason for such determination
shall be documented in the court record.
§ 43-109.3. Custody, guardianship or visitation cases — Evidence of
domestic abuse
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.
§ 43-111.1. Minimum Visitation between noncustodial parent and child —
Failure to pay child support — Enforcement of visitation order.
A.
1. Any order providing for the visitation of a noncustodial parent
with any of the children of such noncustodial parent shall provide a
specified minimum amount of visitation between the noncustodial parent and
the child unless the court determines otherwise.
2. Except for good cause shown and when in the best interests of the
child, the order shall encourage additional visitations of the
noncustodial parent and the child and in addition encourage liberal
telephone communications between the noncustodial parent and the child.
B.
1. Except for good cause shown, when a noncustodial parent who is
ordered to pay child support and who is awarded visitation rights fails
to pay child support, the custodial parent shall not refuse to honor the
noncustodial parent's visitation rights.
2. When a custodial parent refuses to honor a noncustodial parent's
visitation rights, the noncustodial parent shall not fail to pay any
ordered child support or alimony.
C.
1. Violation of an order providing for the payment of child support
or providing for the visitation of a noncustodial parent with any of the
children of such noncustodial parent may be prosecuted as indirect civil
contempt pursuant to Section 566[21-566] of Title 21 of the Oklahoma
Statutes or as otherwise deemed appropriate by the court.
2. Unless good cause is shown for the noncompliance, the prevailing
party shall be entitled to recover court costs and attorney fees expended
in enforcing the order and any other reasonable costs and expenses
incurred in connection with the denied child support or denied visitation
as authorized by the court.
§ 43-110.1a. Oklahoma Child Supervised Visitation Program — Policy —
Definitions
A. This section shall be known and may be cited as the "Oklahoma Child
Supervised Visitation Program".
B. It is the policy of this state to ensure that the health, safety,
and welfare of the child is paramount when supervised visitation is
ordered by the court.
C. For purposes of the Oklahoma Child Supervised Visitation Program:
1. "Supervised visitation" means the court-ordered contact between a
noncustodial parent and one or more children of such parent in the
presence of a third-party person who is responsible for observing and
overseeing the visitation in order to provide for the safety of the child
and any other parties during the visitation. The court may require
supervised visitation when deemed necessary by the court to protect the
child or other parties;
2. An "alcohol-dependent person" has the same meaning as such term
defined in Section 3-403[43A-3-403] of Title 43A of the Oklahoma
Statutes;
3. A "drug-dependent person" has the same meaning as such term defined
in Section 3-403[43A-3-403] of Title 43A of the Oklahoma Statutes; and
4. "Domestic abuse" has the same meaning as such term defined in
Section 60.1[22-60.1] of Title 22 of the Oklahoma Statutes.
D.
1. The associate district judge in each county within this state may
select trained volunteers to provide supervised visitation pursuant to
the Oklahoma Child Supervised Visitation Program.
2. By February 15, 2005, the associate district judge of each county
may appoint a judicial district supervised visitation team to:
a. identify public and private entities which will be willing to
provide location sites for purposes of the Oklahoma Child Supervised
Visitation Program,
b. identify individuals who will be willing to serve as third-party
persons to observe and oversee court-ordered supervised visitations,
c. establish training requirements for volunteers,
d. identify programs which may be available for the training of the
volunteers including, but not limited to, the Department of Human
Services, Office of the Attorney General, child advocacy centers,
domestic violence groups, and the Department of Mental Health and
Substance Abuse Services,
e. develop written protocol for handling supervised visitations so as
to provide safety of the child and other parties during the supervised
visitation,
f. develop application forms for volunteers applying for the Oklahoma
Child Supervised Visitation Program. Information listed on the form shall
include, but not be limited to:
(1) name, address and phone number of the volunteer,
(2) volunteer's place of employment and phone number,
(3) areas of expertise,
(4) listing of professional training in areas including, but not
limited to, child abuse, domestic abuse, alcohol or drug abuse, mental
illness or conflict management,
(5) consent form specifying release of information, and
(6) professional references, and
g. identify which information of the parties and the child will be
confidential and which may be available to others.
3. From recommendations of the team established pursuant to this
subsection, the associate district judge in each county within this state
may authorize one or more public or private agencies to provide location
sites for the Oklahoma Child Supervised Visitation Program. A district
judge may require either party requesting supervised visitation of a
child to identify a trained third-party volunteer to observe and oversee
the visitation. A district court shall not:
a. require any state agency location or state employee to observe and
oversee any supervised visitation, or
b. appoint a third party to observe and oversee a supervised visitation
who has not received the training as specified by the judicial district
supervised visitation team unless agreed to by the parties.
4. A participating public or private agency location site may charge a
fee for each visit.
E. The protocol for supervised visitation established by each judicial
district supervised visitation team may require that:
1. The location site require each participant who has court-ordered
supervised visitation for a child and who is participating in the
supervised visitation program to sign a time log upon arrival and
departure. The agency location site must have an employee assigned to
verify, identification of each participant, initial each signature, and
record the time of each person's arrival and departure; and
2. The agency location site also contain information on each client>
case including, but not limited to:
a. a copy of the court order requiring supervised visitation, and
b. name of individuals authorized to pick up or deliver a child to the
agency location site for supervised visitation.
F. Each judicial district supervised visitation team may include, but
not be limited to:
1. Mental health professionals;
2. Police officers or other law enforcement agents;
3. Medical personnel;
4. Child protective services workers;
5. Child advocacy individuals; and
6. The district attorney or designee.
G. An associate district judge of a county, the judicial district
supervised visitation team created pursuant to this section and the
Office of the Court Administrator may develop an informational brochure
outlining the provisions of the Oklahoma Child Supervised Visitation
Program and procedures to be used by volunteers in that judicial
district. The brochure may be distributed through the municipal and
district court, social service agency centers, county health
departments, hospitals, crisis or counseling centers, and community
action agencies.
H. Except for acts of dishonesty, willful criminal acts, or gross
negligence, no member of the judicial district supervised visitation team
or volunteer shall be charged personally with any liability whatsoever by
reason of any act or omission committed or suffered in the performance of
the duties pursuant to the provisions of this section.
I. The provisions of this section shall not apply to cases subject to
the Oklahoma Children's Code and the Oklahoma Juvenile Code.