Motion to Modify Custody
Can a change in child preference form the basis of a motion to modify in Oklahoma? I’m Tulsa Attorney James Wirth, that’s the question that we have, and it deals with two separate issues.
First off, you have an order in place, it’s a final order regarding custody and visitation, you wanna modify it, you’ve gotta show there’s been a permanent, substantial, material change of circumstances that makes it in the best interest of the child, would be better off, substantially better off, if there were a modification.
So, and then we have another statute that talks about in a custody case that the court should hear and take the preference of a child who’s 12 and older, or a child of a sufficient age to form intelligence preference, and the court has to hear that and take that into consideration, but doesn’t necessarily have to go along with what the child wants.
Case Law and Child Preference
The question is, does a change in the preference of the child trigger or constitute a permanent, substantial, material change to justify a modification? And we do have a little bit of case law on this, it’s not extremely clear, but it seems like that it is the case, based on two cases.
The first case is the Nosworth case, decided here in Oklahoma by the Oklahoma Court of Civil Appeals, and there the judge decided not to hear from the child who was, I believe, 14 years old, certainly old enough to give it an intelligent preference, and the court didn’t want to hear from it, and that was appealed to the Oklahoma Court of Civil Appeals and the court there said that where the preference is explained by the child and good reasons for the preference are disclosed, the preference in supporting reasons will justify a change in custody. So, the court sent it back to the trial judge and said, hey, you have to hear from this child who is old enough to make an intelligence preference, and if it makes sense to go along with it, go along with it.
So, this court found that it was enough to trigger the permanent, substantial, material change of circumstances, because if it wasn’t, then there’d be no basis for the court to even hear any evidence if there wasn’t enough to demonstrate there was a permanent, substantial, material change of circumstance.
And then it was, another case came after that, the Crouch case, and there it said that the court should consider, in change of custody cases, where the child has asked for the change, a best interest determination cannot be made fairly and reasonably without hearing from the child. So, to say that again, where the child asked for the change, a best interest determination cannot be made fairly and reasonably without hearing from the child.
Conclusion and Consultation
Based on these two cases, it does seem that the Gibbons standard of finding permanent, substantial, and material change of circumstances can be met through a change of the preference of the child. Now, as a practitioner of the representing people, we wanna bolster that with other changes of circumstances, but it looks like that a preference of child based on these two cases should be enough to survive the Gibbons standard to have a hearing and determination, a new determination regarding best interest of the child from the court.
If you’re dealing with a court case and family law in the state of Oklahoma, you’re gonna wanna talk to an attorney privately, confidentially, to get legal advice specific to your circumstances. To get that scheduled with an attorney at my office, you can go online to MakeLawEasy.com.
