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General Historical Overview Early in American jurisprudence, prior to the 19th century, courts used a rule a paternal preference, when making child custody decisions. The earliest decision gave custody to the father as what might be called a property interest in his children. As the American system of jurisprudence progressed, together with the advent of the feminist movement, the trend moved away from a preference for the father too a preference for the mother when the custody matter involved young children. Tender Year's Doctrine This involved a presumption created in favor of granting child custody to the mother of a young child, unless the child's biological mother was adjudicated to be unfit. This outmoded rule created a burden of proof on the part of the father, whereby if the father did not prove that the mother was in fact unfit, custody of the young children would be awarded the mother. Modern View The vast majority of American jurisdictions, including Oklahoma, have done away with the Tender Year's Doctrine. Rather the presumption of the courts is that both biological parents are equally capable of carrying for the child and that as such no gender based presumption for custody is said to exist. Primary Care Giver Doctrine in Oklahoma This is a presumptive doctrine which places a judicial preference for child custody in the parent who up until the divorce proceeding was initiated was the child's primary care giver. Several factors act to determine which parent is considered to be the child's primary care giver. These factors include but are not limited to: which parent (1) put the children to bed, (2) groomed the children, (3) made medical decisions, and (4) acted to teach the children basic life cooping skills. Although the Primary Care Giver Doctrine and presumption are not adopted in Oklahoma, these factors are highly probative of what is in the Best Interest of the children. Best Interest of the Child This is the prevailing presumption found in Oklahoma child custody cases and most Jurisdictions in the United States today. The Best Interest Doctrine, rather than focusing on marital or gender based preferences looks to what the court determines to be in the Best Interest of the Child. Some issues expressed concerning the Best Interest doctrine, is that it is a rather nebulous concept and is difficult to define. Among other factors, the Best Interest approach looks to maintaining the status quo in the parent child relationship and to keeping both parents involved to at least some degree in the children's lives. Additionally the Best Interest will look to which parent is better suited in terms of maturity and ability to care for the child in an environment which is conducive to the child's long term development. Oklahoma Joint Legal Custody Joint custody in Oklahoma is shared legal custody of the children. The basic concept envisions a parenting arrangement in which both parents, acting in the child's best interest, share legal responsibility for childrearing. This responsibility can be limited or can be extended to all of the day to day decision making for the child. Joint custodial custody involves the highest level of cooperation between the parents, and will be less likely to be upheld in those situations where the parents cannot cooperate in matters concerning childrearing. Oklahoma Joint Custodial Custody This version of shared custody in Oklahoma involves the equal sharing of physical custody of the child between the two parents. A typical example of joint custodial custody is when the child lives with one parent for one half of the year and with the other parent for the remaining half of the year. The courts will scrutinize this arrangement to ensure that moving the child from one home to another will not be so disruptive to the child that his or her best interest is not served. KANIA
LAW
OFFICE:
Tulsa Child Custody Lawyers
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