KYLE PERSAUD — BARTLESVILLE, OKLAHOMA LAWYER

Home » Family Law — Oklahoma

Family Law — Oklahoma

 
What’s the difference between sole custody and joint custody?
My children are with my ex-spouse, and I’m afraid they might be in danger. Is there a way to obtain custody of them without have to go through a long process?
Can I remarry before my divorce is final?
Am I in a common-law marriage?
What will happen to my minor children when I die?
What is a guardianship?
Can I have court-ordered visitation with my grandchildren?
My spouse has left, and I don’t know where he/she is. How can I serve my spouse with divorce papers if I can’t find him/her?
What is mediation?

What’s the difference between sole custody and joint custody?
When two parents are divorced or separated, the court must make a determination as to the custody of the children. Often, the court will make an award of sole custody or joint custody.

It’s important to keep in mind, that there is a difference between “legal custody” and “physical custody.”

If you have sole legal custody of your child, this means, that you, and you alone, have the right to make decisions regarding the child’s welfare, such as the child’s education, medical care, and religious upbringing.

If you have joint legal custody of your child, this means that both you, and the child’s other parent, both have a voice in long-range decisions regarding the child’s welfare, such as the child’s education, medical care, and religious upbringing. You and the other parent will have to cooperate in making these decisions. If you and the other parent disagree on the decisions, the court may appoint an arbitrator to resolve the dispute. If you do not consent to arbitration, the court may terminate the joint custody plan and award sole custody to the other parent.

Joint legal custody does not necessarily mean that you and the other parent will have equal time with the child. Physical custody refers to the physical care and control of the child. Whoever has physical custody of the child has the right to make day-to day decisions, while the child is in that parent’s care. Joint physical custody means that each parent will spend a significant amount of time with the child.

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My children are with my ex-spouse, and I’m afraid they might be in danger. Is there a way to obtain custody of them without have to go through a long process?
Yes. Oklahoma law allows courts to conduct an “emergency custody” hearing, which the court must conduct within 72 hours after you file the petition. But, to get emergency custody you have to present an independent report from the police or the Oklahoma Department of Human Services, or a notarized affidavit from an individual with personal knowledge of the child’s situation. This independent report or notarized affidavit must show that the child is in surroundings which endanger the safety of the child and that if such conditions continue, the child would likely be subject to irreparable harm.

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Can I remarry before my divorce is final?
No! You are still legally married until the judge signs your final divorce decree. If you marry before then, you are guilty of bigamy. When the judge signs your decree, you marriage is dissolved immediately, but you still must wait six months before you may legally remarry in Oklahoma.

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Am I in a common-law marriage?
To be in a common-law marriage, you and your spouse must satisfy all of the following conditions:

• You and your spouse must both be capable of marrying.

  • You must both be legally of age (in Oklahoma, the minimum age for marriage is 16 with parental consent, and 18 without parental consent. Younger parties may marry with the permission of a judge, under certain circumstances.)
  • You and your spouse must both be mentally competent.
  • Neither you nor your spouse may already be married to anyone else.
  • You and your spouse may not be related to each other.
  • Neither you nor your spouse may have been divorced for less than six months.

• You and your spouse must mutually agree to be married.

• You and your spouse must have a permanent relationship.

• You and your spouse must have an exclusive relationship.

• You and your spouse must live together. (NOTE: There is not fixed amount of time you need to have lived together. If you live together, this satisfies the grounds for a common-law marriage.)

• You and your spouse must openly hold out each other as husband and wife.

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What will happen to my minor children when I die?
A guardian will be appointed for your minor children. See below, What is a guardianship?

You may nominate a guardian in your will before you die. Click here to find out about wills.

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What is a guardianship?
A guardian is a person appointed by the court to take care of the person or property of another. A guardianship can be granted over a child when the parent(s) are deceased or unfit. A guardianship can be granted over an adult when the adult is incapacitated. When a guardian is appointed for a child, the guardian functions much like the child’s parent; the guardian can enroll the child in school, take the child to the child to the doctor, etc. A guardianship over a child can terminate if the parent(s) are found to have regained their fitness. A guardian also has control over the ward’s property, whether the ward is a child or an adult.

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Can I have court-ordered visitation with my grandchildren?
You must convince a court that grandparental visitation is in the best interests of the child. You must also show that the child’s parent(s) are unfit. Grandparental visitation cannot be granted if the child is living in an “intact nuclear family.” You must show either that the child’s parents have been divorced, separated, or had their marriage annulled (or that proceedings for divorce, separation, or annulment are pending). You may also obtain grandparental visitation if you show that your child, who is the parent of the grandchild, is deceased, unless the mother died during the birth of the child. You may also obtain visitation if you show that the grandchild does not reside in its parent’s home, that one of the grandchild’s parents has a felony conviction and has been incarcerated, that you had custody of your grandchild, that the grandchild’s parent has deserted the other parent for more than one year, that the grandchild’s parents never married and are not residing together, or that one of the grandchild’s parent’s parental rights have been terminated. Also, to obtain grandparental visitation, you generally must show that there is a strong, continuous grandparental relationship between the grandparent and the grandchild.

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My spouse has left, and I don’t know where he/she is. How can I serve my spouse with divorce papers if I can’t find him/her?
Click here to find out how to file a lawsuit when when you can’t find the defendant.

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What is mediation?
See What is mediation? under the “Civil Law” section.

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NOTE: The information provided on this website is not intended to be, and does not constitute, the giving of legal advice. The information provided here is not intended to be, and should not be used as, a substitute for individual reliance on privately retained legal counsel. Information provided on this site may not constitute the most current or complete information with respect to legal topics or developments. Mr. Persaud expressly disclaims all liability based on any information contained on this site.

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