What are Custody Rights?

Joint custody and sole custody are legal decision-making concepts. Parents with joint legal custody must make child-related decisions together, or jointly. When a parent has sole custody, that parent is permitted to make the final call, or decision, on major decisions affecting the child. 

Child-related matters include:

  • Educational choices
  • Religious practices
  • Elective medical decisions
  • Forms of discipline
  • Travel
  • Selection of extracurricular activities

In a sense, joint custody and sole custody have little to do with visitation, or parenting time. Parents may have equal time with their child, yet one may be designated as the "sole custodian" to make the final call for major child-related decisions. Or, one parent may have the child most of the time, yet both parents may have joint custody and still be expected to co-parent and share decision-making responsibility.

However, the child-related matters related to custody generally concern "major" decisions affecting the wellbeing of the child. Legal decision-making authority may matter less for parenting choices that have less long-term impact, such as: clothing and style, diet, and daily activities. Viewed this way, there is a very loose relationship between a parent's decision-making authority and the time that parent has with the child. A non-custodial parent may still decide things during visitation such as what food the child eats, what they do together, other children that the child can play and socialize with, and bedtime. The more time a parent has with a child, the more that parent will be a decisionmaker for the child, even if that parent is the "non-custodial" parent, due to the nature of day-to-day decisions which must be made when parenting a child. Both joint custodians and non-custodians will be expected to take their child on time to the child's school, appointments, practices and games, regardless of who and how the appointment was scheduled. 

In Oklahoma, there are four types of custodial arrangements:

  1. Joint legal custody. This is the most common scenario. Both parents have equal decision-making rights, and neither parent has superior decision-making authority, so they have to agree on final major decisions or they will need to get help making the decision from someone like a parenting coordinator, mediator or a judge. 
  2. Sole legal custody. The custodial parent has the legal authority to make the final call for major child-related decisions.
  3. Joint custody with final say. Sometimes the court order will include a joint custody plan and contain all the joint custody language and orders, with one extra provision providing one parent ultimate decision-making authority in the event of a dispute. Some argue that this is really sole custody in disguise, but it is not
  4. Parallel parenting. Parallel parenting is an unusual, uncommon and disfavored approach to child custody. It is sometimes implemented in extremly dysfunctional, high-conflict cases. In parallel parenting, the parents may not communicate or engage with one another in any meaningful way, and each parent is responsible for making decisions about their child during their respective parenting time. 

Oklahoma law provides that each parent is entitled to access their child's academic and health records, regardless of custodial status. Unfortunately, third party providers such as school administrators, physicians and counselors are all affected by the myths and misinformation about what custody means. A joint custodian may experience less resistance from third parties than a non-custodial parent. 

Child Custody Myths: True or False

Non-custodial parents have no rights

False. Custodial status does not necessarily impact parenting time, or visitation rights. A designation of "non-custodial parent" does not mean that you have lost parenting rights. A non-custodial parent has the legal right to access their child's records, including records from school, doctors, and child care providers. Generally, if the custodial parent dies, the non-custodial parent becomes the custodial parent.

The custodial parent gets to make every single decision about the child

False. The custodial parent is the final decisionmaker for major decisions affecting the wellbeing of the child. The noncustodial parent may still make ordinary day-to-day decisions for the child during visitation. Even for major decisions, the custodial parent may be required to confer with the non-custodial parent before making the final call.

The custodial parent gets to decide whether the non-custodial parent gets visitation False. The custodial parent has a legal duty to facilitate and foster a relationship between the child and the non-custodial parent.
The non-custodial parent will have to pay child support

 Possibly. Child support is mostly a function of the parents' respective gross incomes and their parenting time. There are frequent scenarios where the custodial parent is required to pay child support to the non-custodial parent.

The custodial parent will always get to claim the child for tax purposes

Possibly. However, a judge can re-allocate this benefit between the parents and the IRS will recognize the court order. The custodial parent may be required to fill out IRS Form 8332.

If one parent has sole custody, then the parents do not have to communicate or co-parent with one another

False. Each parent is entitled to child-related information, especially from school and medical care providers. The custodial parent has a duty to encourage a relationship between the child and the non-custodial parent. 

The custodial parent will be the only one who can take a vacation with the child outside of the United States False. The custodial parent will have the authority to obtain a passport for the child. However, the court order can permit the non-custodial parent to access the passport for travel. 
The custodial parent will be able to relocate from Oklahoma if they desire

False. The law concerning relocation has several factors. Custodial status is just one factor for relocation. The custodial parent will have a slight advantage in the event of a relocation request, but the relocation will not be automatically approved simply due to custody.

The non-custodial parent will only have alternating weekend visitation with the child

False. Custody is distinct from time. Oklahoma law creates a presumption of "shared parenting," meaning equal time or substantially equal time, regardless of joint custody or sole custody.

How Likely Am I to Get Custody?

Judges have a great deal of discretion when assigning custody. Judges have the ability to award joint legal custody but to designate one parent as the final decision-maker for disputes over one or more child-related matters. There is presently no legal preference or presumption in favor of or against an award of joint legal custody or sole legal custody. It is improper for a judge to award a parent joint or sole custody based solely on that parent's gender. Even though it is unconstitutional to favor one gender over another when determining custody, it is no secret that some judges still have a default preference for placing children with the mother, especially when the children are younger.

To share joint custody, the parents generally must demonstrate an ability to communicate and co-parent. Sometimes in divorce a parent will try to obstruct communication and co-parenting so the other parent cannot make a case for joint custody. There are cases where this strategy backfires, as judges are required to assess which parent will encourage and facilitate a relationship between the child and the other parent. 

There are some extreme cases where both parents have behaved so badly in the eyes of the judge that the judge will award both parents joint custody rather than give one of the parents sole custody. As joint custody requires parents to agree on major decisions, situations like this often lead to the appointment of a parenting coordinator or other expert, and many times these cases end up back in court. 

What Happens if I Don't Get Sole Custody or Joint Custody?

Being a noncustodial parent does not mean that there has been a loss of parental rights. Being a noncustodial parent does not mean that the noncustodial parent is "unfit." The noncustodial parent may still have liberal visitation, or parenting time, access to all information about the child's development and wellbeing, as well as the ability to attend the child's events and activities. 

Even when one parent is awarded sole custody, the noncustodial parent has the right to access all child-related information, including medical and academic records. If one parent has sole custody and dies or becomes incapacitated, the noncustodial parent automatically has custodial rights, unless there is a question about parental fitness.

On rare occasions, third party providers such as teachers and pediatricians can be reluctant to share information with a non-custodial parent, even though the law provides for information access, especially if the custodial parent has misled the provider about what custody means. In those circumstances, sometimes the issue can be cleared up with a copy of your court order and a letter from your attorney.