Tulsa Attorney Blog
Who Has More Rights to a Child in Oklahoma?
Who has more rights to a child? Well, it depends. If there's a court order in place, then it's obviously going to be decided by that court order. If there is no court order in place, then you're going to look at, are the parents married or not married? If it's a child born outside of a marriage, mom has all the rights. Dad has no rights until he establishes them in court. If the parties are married and there's no order in place, the parties are on equal footing. Neither party has superior rights. The Oklahoma statute says that. The mother doesn't automatically have more rights than dad. They start off on equal footing until they get into the court, and the court determines that. In relation to everybody else, the parents have the rights. Other people are not on equal footing. They're way behind because parents, under Oklahoma law and under US Constitution, they've got a constitutional right to the care and comfort of their kids. If a third party is going to try to come in and take custody away from the parents, it's going to take a much higher standard than what's in the best interest. It's going to have to show that the parents are unfit or something like that. Read more »Can a Person Sit in on a Child Custody Proceeding in Oklahoma?
Oklahoma family law matters are open to the public, and you can come in and you can watch those proceedings. The exception to that is going to be guardianships, those are private. Adoptions are going to be private, deprived child actions are going to be private. If it's not one of those, for the most part, it's open to the general public, you can sit in and watch. Now, another exception, if you're a potential witness to the case, either one of the parties can invoke the rule of sequestration and then kick everybody out of the courtroom that may be testifying. And that is to make sure that those people testifying don't get to see prior witness testimony in order to try to conform with it. So those people can be excluded so that they don't get to watch the trial until after they have testified. Read more »What Are the Alimony Laws in Oklahoma?
Tulsa Attorney James Wirth answers what are Oklahoma's alimony laws or spousal support laws? Well, yes, spousal support, alimony, it is a thing in Oklahoma, and the law does not give a lot of rules on it. So, judges have wide discretion in determining what is appropriate. The court's going to look at what is equitable, what is fair in determining what is appropriate for spousal support, but typical things that we look at is we've got one party that has much better ability to pay bills and one party that is in need, so we're going to look at the finances of each party and determine. Obviously, we have to have a marriage first. In those scenarios, we look at the income of the party. If you've got one party with no income and lots of expenses and is used to a certain level of living, but doesn't have the ability to earn what it takes to get there, that is a party that has a need for spouse support or alimony. That's one of the requirements. The other part is we're going to look at the other side. What is that party's income? What is that party's expenses? After their expenses are paid, do they have money left over? If so, then they've got the ability to pay. We've got need and then we've got ability to pay. Then lastly, we want to show that that need is tied to the marriage. That person that is need, are they in need, because they gave up their career to take care of the kids? Are they in need, because they gave up a career, or a job, or schooling in order to take care of the husband and to have more household duties? If so, then that need is going to tie it to the marriage. Read more »Can You Relinquish Custody of a Biological Child in Oklahoma?
If we're talking about relinquishing custody, then certainly that is something that you could do. You could give the other parent custody just by signing over custody, and then maybe you could request visitation rights, or maybe you don't even request visitation rights. And then that person would have custody, but it does not terminate your parental rights. Same thing with a third party. If the other parent is not available to step in or the other parent is unfit and you're wanting to relinquish, then you could give up guardianship to a third party and say right now it's in the best interest of my child for somebody else to care for that person. Get a guardianship in place, and guardianship's are temporary by nature. So they're indefinite and they stay in effect until they're terminated, but you could file at any time to terminate that and get your custody back. So that deals with relinquishing or giving up custody. But most of the time when we talk about relinquishment we're not dealing with just custody, we're dealing with parental rights, and that's different. Read more »Do I Need A Lawyer for a Child Support Hearing in Oklahoma?
If you've got a child support hearing, do you need an attorney? And my answer is, probably, but it does depend. So, if you have a child support hearing, somebody has to make that request. The court's not automatically going to set it for a child support hearing. So, was that you, was that the other party, was that DHS? Are you in DHS court, or are you in district court? Are you trying to get child support, or is the other party asking you to pay child support? Read more »How Much Does It Cost to Go to Court for Child Custody in Oklahoma?
It depends on how much work goes into it because these attorneys are billing hourly, and there could be additional costs. If you have to do a deposition, you got to pay a court reporter, if you need more evidence, you need a PI, you need a private investigator helping out. If you go to mediation, which mediation in Tulsa County is required before you get a trial date, you've got to pay the mediator's fee. If you need a custody evaluation, then you need to pay a custody evaluator. If you need to appraise the value of a house, then you need an appraiser to handle that for you. You might need a parenting coordinator. You might need a guardian ad litem. There's all kinds of different costs could go into that in addition to the filing fee and the attorney fee. Depending on how litigated it is, the cost can vary as far as the total cost based on the total number of hours that the attorney puts into the case. Read more »How Do I End Child Support After I Gain Custody of Children in Oklahoma?
So how do I stop child support after you gain custody? For the most part, if you're gaining custody legally, meaning through a court proceeding where you've got a court order granting you custody, those proceedings also include orders regarding visitation and child support. It's normally all done together. Sometimes if you get custody through a guardianship, maybe the judge will order you to do child support separate, in which case you need to file the child support order and get that into place. But for the most part, it's all done together. So I'd want to know more about your specific circumstances in how you've got custody, and then to see the best way about getting child support modified. Read more »Do You Have to Be Divorced to Get Child Support in Oklahoma?
Do you have to be divorced in Oklahoma in order to get child support? And the answer is, no, you don't. If you're married and you have kids together, there are other ways to get child support. You could file for child support through DHS. They will do child support proceedings without you filing for a divorce or legal separation. If you're doing this on your own, you can file for a legal separation and get any type of order that you would normally get through a divorce. Read more »Who Gets Custody of the Children During a Divorce in Oklahoma?
Oklahoma law regarding children is almost always the same thing. We almost always look at the same thing and that is best interest of the child. So we have to determine what is in the best interest of the child. And when we've got a standard that broad, there's a lot of different information that may be relevant to that for a judge to hear, to determine what's in the best interest of the child. Read more »Where Do You Find the Muscogee (Creek) Nation Tribal Code?
The McGirt decision from the United States Supreme Court, says that the Muscogee (Creek) Nation Reservation was never disestablished through statehood, which means that way more land than we thought now is actually on the reservation and subject to the jurisdiction of the Muscogee (Creek) Nation, and that includes most of Tulsa County and many of the surrounding counties. So, that means a lot more cases are going to be going on in Muscogee (Creek) Tribal Court, particularly we're talking about criminal cases. Read more »Cultivation of Marijuana Is a Felony in the Muscogee (Creek) Nation
Attention Green Country growers: Cultivation of Oklahoma marijuana is a felony on the Muscogee Creek Reservation. I'm Tulsa Criminal attorney, James Wirth. We're about to talk about the Muscogee Creek Nation Code and how it deals with cultivation. So all of this is relevant because of the McGirt Decision that came out in June of 2020 where the United States Supreme Court held that the Muscogee Creek Tribal Reservation was never disestablished through Oklahoma Statehood. And what that means is that there's a good chunk of Northeast Oklahoma, including most of Tulsa County, and all of them, many of the surrounding counties, are actually part of the Muscogee Creek Tribal Reservation, and native Americans living in that area are going to be subject to the laws of the Muscogee Creek Nation, in addition to state law and federal law. Read more »What's Your Right to Speedy Trial in Muscogee (Creek) Tribal Court?
What is your right to a speedy trial in the Muscogee Creek Nation Tribal Court? Tulsa Attorney, James Wirth has that answer. Read more »Is First Offense of Possession of Marijuana in Oklahoma a Felony?
There Is a Risk for a Felony If You Are a Tribal Member, Any Tribal Member, and You Are Possessing on Muskogee (Creek) Reservation Land. Read more »Are Landlords Renting to Growers in NE Oklahoma Committing a Felony?
Attention landlords renting to growers here in Northeast, Oklahoma. You're going to want to know what the Muscogee Creek Nation code says about your circumstances. I'm Tulsa attorney James Wirth, and we're about to talk about that. This all starts with the McGirt decision from the United States Supreme Court coming down in June 2020, and what it said is that the Muscogee Creek Nation reservation was never disestablished through Oklahoma statehood. This means a lot of the land in Northeast, Oklahoma, including most of Tulsa County and all of many of the surrounding counties, is all reservation land subject to the jurisdiction of the Muscogee Creek Nation. Now the Muscogee Creek Nation is a sovereign entity. It does not recognize, necessarily the OMMA and licensing and all of those things, so we've got to look at what the code for the tribe says to see if this may be applicable to you. Read more »Statute of Limitation for Criminal Charges in Muscogee (Creek) Nation Tribal Court
If you're in a circumstance where you are Native American, were you were tried in state court for a crime that occurred on what we now know is reservation land, you're going to want to know the statute of limitations in the tribal court to see if you get your case dismissed and reversed, whether they can still charge you in the tribal court. So that's why we want to look at the statute of limitations for the tribe. Read more »DUI Is Never a Felony in Muscogee (Creek) Nation Tribal Court
US Supreme Court in McGirt found the Muscogee Creek original reservation was not disestablished and it comes with a chunk of NE Oklahoma. Read more »Is Possession of Drugs a Felony in Muscogee (Creek) Nation Tribal Court?
Most of Northeast Oklahoma, including most of Tulsa County and all of many of the surrounding counties, is all part of the Muskogee Creek Tribal Reservation, which means that native Americans, whether they're members of that tribe or any other tribe, are going to be subject to criminal filings against them for crimes that occur in that area. Because of that, we're looking at the differences between state law and tribal law now that we're about to see a lot more cases in tribal court, as we're seeing a lot of cases thrown out of state court. One of the more interesting ones is possession of drug paraphernalia. Read more »Murder by Sleeping? One Reason Some Are Happy About McGirt Decision
Oklahoma has one of the highest incarceration rates in the nation. It was actually number one for women and number one for men for a period of time. Now I believe we're down to number two in the nation for prison population. There are many reasons that go into that, but I've got an example of a case that gets you an idea on why some people are happy that the McGirt decision came out and divested the state courts with authority to charge certain Indians for crimes in Northeast, Oklahoma. Read more »Is McGirt Going to Effect Deprived Child Cases in Oklahoma?
In a child deprived case, that is where the state of Oklahoma or another government entity has taken children out of the home, put them into state or governmental custody in order to protect them from parents who have deprived them, and Indian law has always been a big deal in deprived child cases in Oklahoma, even though when CPS, Child Protective Services, DH, Department of Human Services, even when they start their investigations, that's one of the first thing they're looking into is are these Indian children? Is this family a member of a tribe? Are they eligible to be a member of a tribe? Because ICWA applies, Indian Child Welfare Act applies, and that brings in Federal Law that greatly changes how the cases are affected. Read more »McGirt and the Cascading Impact of Its Precedent
Let's touch on the jurisdiction. So this case only deals with the Muscogee Creek Nation, right? So I've got that here in green. That's the territory that includes most of Tulsa, all of Okmulgee, surrounding counties. We're talking about McIntosh, Creek County, Wagoner County, Muskogee County, Okfuskee County, McIntosh County. The green space there, that's all that we're talking about. So the case technically for precedent purposes is limited here, but all of the five civilized tribes there, Cherokee tribe, the Choctaw, Chickasaw, Seminole, they all had very similar treaties, 1866 treaties. They were all similarly treated when Oklahoma became a state. So although the McGirt decision doesn't directly apply precedent, if you apply the same rules that were applied in McGirt to the other tribes, it's going to show that they were not disestablished either. So now suddenly we've gone from that green area to most of Northeast Oklahoma for all the colored areas here. And although it's not binding precedent, it's going to be next to impossible to say they should be treated differently. Read more »McGirt Expungement: New Path to Sealing Criminal Records for Tribal Members
The McGirt v Oklahoma decision from the US Supreme court greatly expanded the current understanding of what tribal reservation is in Northeast Oklahoma, so that most of Northeast Oklahoma is reservation land. That divested the state court in prosecuting tribal members for crimes occurring in that territory and non-tribal members for crimes against tribal members or Indians. Most of those cases are subject to be vacated, to go away, and a lot of the current cases are being dismissed and moved off to either tribal court or to federal court. Read more »What Is the Murphy/McGirt Agreement-In-Principle?
So the Attorney General of Oklahoma has released a document entitled the Murphy McGirt agreement in principle, where he claims that there's been some outlines on what a proposal would be for congressional legislation to resolve some of the issues with the aftermath of the McGirt decision. So in the McGirt decision, the United States Supreme Court ruled that the Muskogee Creek nation was never disestablished when Oklahoma statehood came, and therefore most of Tulsa and the surrounding counties are still on Muskogee Creek reservation. That decision equally applies, or at least the rationale for doing that, equally applies to all five civilized tribes in Oklahoma, which means that most of Northeast Oklahoma is now considered to be and to have always have been reservation land, although we didn't know it until this decision. Read more »Statute of Limitation for Federal Prosecution of Crimes Dismissed Under McGirt Precedent
McGirt v Oklahoma held that the Muskogee Creek nation was never disestablished, which means that most of Tulsa and surrounding counties are actually tribal reservation land, where the state lacked subject matter jurisdiction to prosecute Indians or crimes committed against Indians. Read more »McGirt Ruling: Who Prosecutes What In Northeast Oklahoma Now?
United States Supreme Court in the Mcgirt Case on July 9th of 2020 Decided the Muskogee Creek Nation Reservation of the Treaty of 1866 Was Never Disestablished When Oklahoma Became a State Read more »How To Determine If A Crime Victim Is "Indian" Under McGirt Decision
How do you determine if a victim is an Indian under the McGirt Precedent in Oklahoma? I'm Oklahoma attorney James Wirth and we're about to talk about how to find out if a victim of a crime is an Indian, as it relates to the law. This is all dealing with, again, the McGirt decision that is having huge ramifications in Oklahoma, regarding jurisdiction of state courts to prosecute people. I'm in the McGirt case, the court found that the 1866 boundaries of the Muskogee Creek Nation were never disestablished when Oklahoma became a state. So, that all, almost all of Tulsa County and surrounding counties are still reservation land and that same precedent applied to the remainder of the Five Civilized Tribes, means that most of Northeast Oklahoma is actually Indian territory, which means that the state has limited jurisdiction to charge people. What the Major Crimes Act says, is that for crimes committed on tribal land, by Native Americans or Indians, that the state court has no jurisdiction over them. For crimes committed against Indians on tribal land, reservation land, the state government has no jurisdiction over them. It has to be charged in federal court. Read more »
