Child Relocation 2024 Comparisons

Oklahoma’s appellate courts have fully endorsed the United States Supreme Court’s decision in Troxel v Granville, 530 U.S. 57 (2000), which affirmed the fundamental, historical right of parents to rear their children. Oklahoma’s statutes include a Parents’ Bill of Rights, which confirms the inalienable rights of parents to and concerning their minor children.

Unless parental rights have been terminated, a parent–child relationship established under applicable Oklahoma law applies for all purposes (Oklahoma Statute Title 10, Section 7700-203). “The right of a parent to the care, custody, companionship and management of his or her child is a fundamental right protected by the federal and state constitutions.” (In re Adoption of D.T.H., 615 P.2d 287, 1980 OK 119, ¶18 (Oklahoma 1980).) The Oklahoma Supreme Court recently held that a parent’s fundamental liberty interests are subservient to a child’s best interests. (In the Matter of the Adoption of L.B.L., 2023 OK 48, ¶12.)

It is a matter of long-standing Oklahoma precedent that the establishment of a mother–child relationship automatically confers parental rights to any woman who gives birth to a child or legally adopts a child (Oklahoma Statute Title 10, Section 7700-201). The birth itself confers parental rights onto any biological mother. Another statute, Oklahoma Statute Title 10, Section 7800, provides that an unwed mother has custody of her child until a court determines otherwise. A recent legislative change in another statutory title confers equal rights and status upon the father of a child born out of wedlock if the father signs an acknowledgment of paternity. (Oklahoma Statute Title 63, Section 1-311). This new statutory provision conflicts with the longstanding interpretation of the statute vesting custody of a child with an unwed mother and is the subject of much debate among family law practitioners and the judiciary.

Fathers who are parents to children born out of wedlock have a status that is different from mothers who are similarly situated. Until recently, Oklahoma law did not automatically confer parental rights on a child’s biological father unless the parents were married at the time of the child’s birth. In 2022, the legislature modified a statute so that fathers who sign an “acknowledgement of paternity” have rights and obligations equal to mothers. This new law treats a child whose parentage has been established the same as children of parents who were married at the time of birth.

Hospitals are legally required to provide an acknowledgment of paternity form to parents of any child born to unmarried individuals. The acknowledgment of paternity form may also be obtained from the Oklahoma State Department of Health, Division of Vital Records, or the Oklahoma Department of Human Services Child Support offices (Oklahoma Statute Title 63, Section 1-311 (D)(2)).

Advances in medical technology have allowed couples who otherwise would have been unable to naturally conceive to have children of their own. These situations have created the need for legislation when one or both individuals are not the child’s biological parent. Artificial insemination, oocyte donation and human embryo transfers are just some of these situations.

In Oklahoma, children who are conceived through artificial insemination, oocyte donation or human embryo transfer are considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife so requesting and consenting to the use of such technique (Oklahoma Statute Title 10, Sections 552, 554 and 556).

When a child is born to a woman who is married, her husband is presumed to be the biological father of the child. Additionally, a man is presumed the father of a child if he resided with the minor child for the first two years of the child’s life and openly held himself out as the child’s father. In both of these situations, however, the legal presumption of paternity may be rebutted in certain circumstances by either the presumed father, the mother, or another individual within the appropriate time period and confines contained in the Uniform Parentage Act (Oklahoma Statute Title 10, Section 7700-204). Married parents of minor children have equal rights and responsibilities to their children under Oklahoma law.

Same-sex marriage became legal in Oklahoma in 2014 following the Tenth Circuit Court of Appeals’ decision in Bishop v Smith, 760 F.3d 1070. That appellate decision paved the way for equal rights in Oklahoma, including the ability for same-sex couples to adopt. With respect to adoption, the requirements for the adoption of a minor child are identical for same-sex couples as they are for heterosexual couples in Oklahoma. Both sets of individuals must petition the court and meet certain basic residency and best-interest considerations to be permitted to adopt.

The situation is somewhat different when one of the individuals in a same-sex relationship is the biological parent of a child born during the marriage and the other is not. A recent case out of Oklahoma County demonstrates the differences in parentage presumptions in same-sex and heterosexual relationships. In a pending case entitled Wilson v Williams, one partner to a lesbian relationship gave birth during the marriage to her biological child, who had been conceived by artificial insemination. While both women were listed as mothers on the child’s birth certificate, questions regarding parentage arose during their divorce proceeding. Had the couple been heterosexual, the artificial insemination statute would have clearly established parentage in both individuals. However, the statute did not apply because the statute specifically uses the words “husband” and “wife”. Instead, the trial court found that the non-biological mother should have filed for adoption during the marriage to confer parental rights. Given that she did not, and instead waited until the divorce proceeding to attempt to establish rights, the judge ruled that she forfeited her parental rights to the child’s sperm donor. While this case is currently before the Oklahoma Supreme Court on appeal, it highlights many of the issues surrounding parentage in same-sex marriage and child custody disputes.

Any person wishing to adopt a child in Oklahoma must first give the minor child’s natural parents notice of the adoption proceeding. This can be difficult when either parent’s whereabouts are unknown.

After providing notice of the adoption proceeding, the party wishing to adopt must either obtain the consent of both natural parents or must prove to the court that the consent of one or both of the natural parents is not required. There are several situations that would support a trial court’s decision that the consent of a natural parent is not necessary for the adoption to proceed. Those include proof that a parent has not provided support for the child for a period of twelve consecutive months, has not maintained a positive and substantial relationship with the minor child for a period of twelve consecutive months, has been incarcerated for a period of ten years or more, or has been convicted of certain crimes involving children, among others.

After the petitioning party has obtained consent or had the court determine that consent is not required, they must undergo multiple background checks, go through a home study, and must prove to the court, through testimony, that the adoption is in the minor child’s best interests.

Once all of the above requirements are met, the petitioner may ask for the adoption to be set for a final hearing, at which time they will accept all rights and responsibilities for the minor child.

The mother of a child born out of wedlock is the custodial parent as a matter of law unless there is a valid acknowledgement of paternity, a court order, or pending legal action. In the absence of a determination of paternity, an unwed mother may relocate with her child without notice to the biological father whose custody and visitation rights have not been established. In those circumstances, there is a six-month window under the Uniform Child Custody Jurisdiction and Enforcement Act wherein the father of a child born out of wedlock may bring an action to determine parentage.

Any parent who has the right to establish a residence for the minor child, meaning the custodial parent or the primary parent in a joint custody paradigm, must notify the other parent entitled to visitation with the minor child of their intent to relocate from the child’s current principal residence. Relocation is defined as a change in the minor child’s primary residence over 75 miles from the child’s current principal residence for a period of 60 days or more.

The relocation notification must be sent to the other parent by mail at that parent’s last known address and no later than the 60th day before the intended move or the tenth day after the relocating parent learns the details of the relocation. The relocation notification must contain the following information:

• the intended new residence, including the specific address, if known;
• mailing address, if not the same;
• home telephone number, if known;
• date of the intended move or proposed relocation;
• brief statement of the specific reasons for the proposed relocation of the child, if applicable;
• proposal for a revised schedule of visitation with the child, if any; and
• a warning to the non-relocating parent that any objection to the relocation must be made within 30 days or the relocation will be permitted.

The non-relocating party then has 30 days within which to file an objection to the relocation with the court. If the non-relocating party fails to file an objection within the timeframe, the requesting party may relocate with the children.

Once the non-relocating party files a timely objection to the notice of relocation with the court, the issue of relocation can only be resolved by agreement of the parties or by court order. If requested, the court is permitted to decide whether the requesting party is permitted to temporarily relocate with the minor children while the final issue is being litigated.

At the hearing, the requesting party has the burden of showing that the proposed relocation is being made in good faith. Good faith has been defined by the Court as “an honest intention to abstain from taking any unconscientious advantage of another” (Boatman v Boatman, 404 P.3d 822, 2017 OK 27 (Oklahoma 2017)). The Court has repeatedly found that “employment opportunities” and “financial considerations” are legitimate reasons to seek relocation and satisfy the good faith requirement.

If a showing of good faith is made, the burden of proof shifts to the party opposing relocation to prove that it is not in the best interests of the child. If the requesting party is unsuccessful in showing that the proposed relocation is made in good faith, then the burden stays with that party to show that the relocation is in the child’s best interests.

The relocation procedure is required for a parent seeking to move beyond 75 miles from the child’s current primary residence, regardless of whether the move is within or beyond Oklahoma’s borders. The relocation statute does not apply to a parent seeking to relocate a minor child to a new residence less than 75 miles from the child’s current residence.

In Oklahoma, it is illegal for a person to fraudulently or forcibly take or entice away a child under the age of 16 years, with the intent to detain or conceal the child from its parent, guardian or other person having legal rights to that child, or to transfer the child from the jurisdiction of Oklahoma or the United States of America. Any person engaging in said behaviour will be charged with a felony charge, punishable by up to ten years in prison (Oklahoma Statute Title 21, Section 891).

The law also provides a remedy should any person other than a parent remove a child from the jurisdiction, including grandparents and other family members. If the person removes the child with the intent of denying or interfering with a parent’s right to custody or visitation under an existing order, that person shall be liable in an action at law. Potential remedies include the following:

• damages for loss of service, society and companionship;
• compensatory damages for reasonable expenses incurred in searching for the missing child or attending court hearings; and
• the prevailing party in such action shall be awarded reasonable attorney fees (Oklahoma Statute Title 43, Section 111.2).

When a dissolution of marriage action is pending, the automatic temporary injunction prohibits either parent from hiding their children from the other parent, and it forbids removing the children from the State of Oklahoma, except for vacations of two weeks’ or less duration, unless the other parent consents to the travel.

If the minor child has been abducted to another state within the US, the first step would be to contact local authorities so that they can start an investigation into the whereabouts of the children. It is essential that the location of the children be determined so that any later obtained court orders can be properly served and enforced by local law enforcement. While the location of the children is being ascertained, legal paperwork, including a writ of habeas corpus and/or a writ of assistance, can be filed.

The situation changes when one parent removes the child to another country. In that situation, the parent can either start a case in the court in the country where the child has been taken, or in the court in the country of the child’s habitual residence, or both. It is important to commence the proceeding within one year of the abduction, as it can be more difficult to get a court to return the child after they have become well settled in the new jurisdiction.

The United States of America is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Oklahoma has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, which provides for the enforcement and return of the child under the Hague Convention. The United States Department of State, Office of Children’s Issues in the Bureau of Consular Affairs is the Central Authority to carry out the duties under the Hague Convention.

The United States Department of State issues annual reports, providing a breakdown of abduction cases by country. The report on International Child Abduction notes the percentage of cases that are resolved within one year of abduction, along with an explanation about the difficulties encountered with the foreign state’s Central Authority.

The Department of State is committed to aiding in and providing for the safe return of children abducted from their homes and helps lead the effort to meet the United States’ obligations under the Hague Convention. With that aim in mind, when a parent informs the Central Authority that their child has been abducted or retained outside the United States, they quickly put that parent in touch with an attorney capable of commencing litigation for the return of the child.

A filed petition is required in order to commence a Hague proceeding. The petition must allege the following:

• the wrongful removal or retention of a child;
• in violation of a parent’s custody rights;
• that were actually exercised by that parent;
• the source of the custody rights;
• the date of the wrongful conduct; and
• the child’s age.

Once a Hague petition is filed, the court is required to act expeditiously. If a decision has not been made within six weeks of filing, the Central Authority can request a statement asking for the reason for the delay. When deciding the case, a court is empowered to take judicial notice of the law and decisions in the state of the child’s habitual residence.

Prior to ordering the return of a child, the court may request a determination of wrongfulness from authorities in the state of habitual residence. The Hague Convention also bars a court in the country where the child has been taken from considering the merits of custody claims once it has received notice of the removal or retention of the child.

Once a petition has been filed, the petitioner has the burden to prove, by a preponderance of the evidence, the following:

• the child has either been wrongfully removed to this country or wrongfully retained in this country;
• the child was a habitual resident at the time they were removed;
• the removal was in breach of the petitioner’s custody rights; and
• the petitioner had been exercising those rights at the time of retention.

The respondent may then present affirmative defences, in support of the minor children’s relocation, including the following:

• grave risk (that the minor child would suffer grave risk if returned to the jurisdiction – this is typically used in developing or war-torn countries);
• the other parent has consented to, or acquiesced in, the relocation;
• the child is of an appropriate age and maturity and objects to the return; and
• the petition was filed more than one year following the relocation and the child is well settled in the new jurisdiction.

The United States of America is a signatory to the Hague Convention.