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This column contains information about recent Oklahoma statutory and case law development and nothing else. Click on the links provided to open the Oklahoma source in a separate window. Statutes Cases
THEY DID WHAAT ??? In its spring 2004 session, the Oklahoma Legislature wrote these changes to Oklahoma Family Law, signed by the Governor into law (and thanks are given to my good friend Jon R. Ford, Esq., a superb Enid, OK, Family Law attorney, for providing these House & Senate Bill references):
HB 1734. Changes to 10 O.S. §21.1 (child custody preference list), 43 O.S. §112.2 (preference against child custody in certain circumstances), addition of 43 O.S. §110.1a (child supervised visitation program), among other things
HB 1821. Amends 10 O.S. §7502-1.4 to provide for non-recognition of same-sex adoptions, among other things.
HB 2307. Amends 30 O.S. §2-101 to provide for home studies in guardianship cases - not present at OSCN yet. Here is the earlier version of §2-101, still effective since HB 2307 didn't have an "emergency clause".
HB 2527. Substantially amends 12 O.S. §1171.3 (income assignments), 36 O.S. §6058A and 43 O.S. §118.2 (child health insurance), and 43 O.S. §118 (child support guidelines where DHS is providing health insurance).
HB 2528. New 43 O.S. §111.1A (advisory visitation guidelines statute) and new 43 O.S. §110.2 (blood, etc., tests where child custody is involved), among other things. The just released Visitation Guidelines are here.
SB 1210. Amends 43 O.S. §118.4 to give DHS child support income assignments highest priority and to slightly modify attorney fee child support assignments to lawyers.
THEY SAID WHAAT ??? Oklahoma appellate courts said these things during these last 90 days or so (last update:7/21/2004):
Child Preference. Nelson v. Nelson. This Court of Civil Appeals case is remarkable since it is the 1st published appellate decision to consider the 11/2002 changes to the child's preference statute, 43 O.S. §113. In a post-decree proceeding, the trial judge changed custody of 12 and 7 year-old boys to the father, apparently due to no reason other than the 12 year old child's preference. The decision makes no mention whatever of Gibbons v Gibbons, the "seminal" Oklahoma Supreme Court decision concerning legal requirements for a post-decree change of custody.
Grandparent Visitation. Guardianship of H.E.W. This Court of Civil Appeals case is the first to interpret the 11/1/2003 version of Oklahoma's grandparent visitation statute, 10 O.S. §5, since its 11/1/2003 revision. The child's father died while serving in the military, and the paternal grand-and-great-grandmothers filed a visitation petition. The trial court granted visitation finding that harm occurred to H.E.W. but the finding of harm was reversed as being insufficient. "Grandmother's proof does not approach the level required for state interference in a fit mother's decisions. The child was seven months old when the mother started using a different babysitter. '... [A] vague generalization about the positive influence many grandparents have upon their grandchildren falls far short of the necessary showing of harm which would warrant the state's interference with this parental decision regarding who may see a child.' In re Herbst, Id. at ¶ 16, p. 399." Also, see the more recent Supreme Court decision, In re A.N.O., decided upon jurisdictional grounds.
Contempt. Henry v. Schmidt. In this paternity/child custody proceeding, the mother failed to show up for court several times. The Supreme Court decision is notable (not only for its interesting facts) because it makes clear that a "beyond a reasonable" doubt standard is applicable in those instances that punishment is penal and not remedial in nature, and that civil indirect contempt does not negate a penal possibility.
Special Masters. Hough v. Hough. Because of the husband's deceit and lack of cooperation in discovery, the trial court appointed a special master in a complex divorce case. The trial court granted the special master's fees and costs of $48,703.40, and further granted him a lien in that amount over all property awarded to the husband from the marital estate, and determined such "judicial lien shall not be discharged by [Husband] in bankruptcy." It found that such payment was in the nature of support for the wife. The Supreme Court affirmed. However, the Supreme Court determined that an appeal-related fee was not statutorily authorized.
Identification of Permanent Change of Condition. Martin v. Martin. In a post-decree proceeding, the trial court changed custody to the father but did not identify "what" the permanent change of condition was. The record was not clear whether the trial judge spoke with the children. The Court of Civil Appeals reversed, stating, "However, in this case, we are inclined not to follow the general presumption because it is not definite there was such a meeting, and even if there was one, it is not apparent that any in camera discussion related in any way to the findings of the trial court. We conclude that a child custody case is of such importance that it should not be decided on conjecture regarding what evidence is absent from the record. We further conclude that a judgment totally without evidentiary support should not stand, particularly one without explanatory rationale giving the parents some basis for the court's conclusion."
Prenuptial Contracts. Griffin v. Griffin. The wife asserted that the husband made misrepresentations at the time they executed their contract, and the trial court agreed, finding the agreement void and in violation of public policy as impermissibly proscribing a division of jointly acquired property, that it was void because of misrepresentations in the husband's financial disclosures, and that it did not make fair and reasonable provision for Wife (among other things). In a split and lengthy decision, the Court of Civil Appeals reversed, finding that the wife failed to meet her clear and convincing burden of proof and that the agreement did not violate public policy.