Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Date: 06-20-2008
Case Style:
Case Number: 2008 OK CIV APP 68
Judge: Adams
Court: Oklahoma Court of Civil Appeals, Division I, on appeal from the District Court, Texas County
Plaintiff's Attorney: Crieg Rittenhouse
Defendant's Attorney: Chris Liebman
Description: Guymon, Oklahoma family law attorneys represented the parties in a child relocation dispute case.
¶1 Curtis Morgan (Father) appeals a trial court order denying him permission to relocate with the parties' children in his custody from Guymon, Oklahoma to Poteau, Oklahoma, over the objection of the children's Mother, Bonnie Harrison, formerly Morgan. Although that portion of the trial court order which denies Mother's request to modify custody was not appealed and is affirmed, we conclude the decision on the relocation issue is against the clear weight of the evidence and must be reversed, with the case remanded for modification of visitation orders.
¶2 Mother and Father dissolved their marriage in 2000 and lived in or near Guymon, Oklahoma, where they exercised joint custody of their two minor children, M.M. and C.M. Father received temporary custody of both children in November of 2003, and on March 18, 2004, the trial court approved the parties' agreement to terminate joint custody and to grant sole custody to Father and visitation rights to Mother. Two years later, as required by 43 O.S.Supp.2002 § 112.3, Father gave timely notice of his intent to relocate with the children to Poteau, Oklahoma. Mother filed an objection and also moved to modify custody. After a hearing covering both issues, the trial court did not modify custody but upheld Mother's objection to the relocation.
¶3 Only Father appealed, arguing, inter alia, that the trial court abused its discretion in upholding Mother's objection because that decision was against the clear weight of the evidence and contrary to § 112.3.1 Our analysis of any statutory interpretation issues is de novo and requires a non-deferential, plenary and independent review of the trial court's legal rulings. Fulsom v. Fulsom, 2003 OK 96, 81 P.3d 652. Father's complaints regarding the sufficiency of the evidence require us to review all of the evidence and reverse only if the trial court's decision is against the clear weight of the evidence. Gorham v. Gorham, 1984 OK 90, 692 P.2d 1375.
¶4 Therefore, we have two tasks. First, we must determine the applicable legal standards for court interference with relocation of children subject to a custody order in a marital dissolution action. Second, we must determine whether the trial court's conclusions are consistent with the application of those standards, accepting the trial court's factual determinations unless they are against the clear weight of the evidence.
* * *
¶5 From at least 1910 until November 1, 2002, Oklahoma's law concerning the ability of a parent with custody of a minor to change the child's residence was succinctly stated in 10 O.S.2001 § 19, which provides: "[a] parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child." So far as we can determine, this statute had never been applied or interpreted in a reported case concerning parental relocation prior to Kaiser v. Kaiser, 2001 OK 30, 23 P.3d 278, which was decided in 2001.
* * *
43 O.S. § 112.3, provides:
A. As used in this section:
1. "Change of residence address" means a change in the primary residence of an adult;
2. "Child" means a child under the age of eighteen (18) who has not been judicially emancipated;
3. "Person entitled to custody of or visitation with a child" means a person so entitled by virtue of a court order or by an express agreement that is subject to court enforcement;
4. "Principal residence of a child" means:
a. the location designated by a court to be the primary residence of the child,
b. in the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside, or
c. in the absence of a court order or an express agreement, the location, if any, at which the child, preceding the time involved, lived with the child’s parents, a parent, or a person acting as parent for at least six (6) consecutive months and, in the case of a child less than six (6) months old, the location at which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period; and
5. "Relocation" means a change in the principal residence of a child over seventy-five (75) miles from the child's principal residence for a period of sixty (60) days or more, but does not include a temporary absence from the principal residence.
B. 1. Except as otherwise provided by this section, a person who has the right to establish the principal residence of the child shall notify every other person entitled to visitation with the child of a proposed relocation of the child’s principal residence as required by this section.
2. Except as otherwise provided by this section, an adult entitled to visitation with a child shall notify every other person entitled to custody of or visitation with the child of an intended change in the primary residence address of the adult as required by this section.
C. 1. Except as provided by this section, notice of a proposed relocation of the principal residence of a child or notice of an intended change of the primary residence address of an adult must be given:
a. by mail to the last-known address of the person to be notified, and
b. no later than:
(1) the sixtieth day before the date of the intended move or proposed relocation, or
(2) the tenth day after the date that the person knows the information required to be furnished pursuant to this subsection, if the person did not know and could not reasonably have known the information in sufficient time to comply with the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.
2. Except as provided by this section, the following information, if available, must be included with the notice of intended relocation of the child or change of primary residence of an adult:
a. the intended new residence, including the specific address, if known,
b. the mailing address, if not the same,
c. the home telephone number, if known,
d. the date of the intended move or proposed relocation,
e. a brief statement of the specific reasons for the proposed relocation of a child, if applicable,
f. a proposal for a revised schedule of visitation with the child, if any, and
g. a warning to the nonrelocating parent that an objection to the relocation must be made within thirty (30) days or the relocation will be permitted.
3. A person required to give notice of a proposed relocation or change of residence address under this subsection has a continuing duty to provide a change in or addition to the information required by this subsection as that information becomes known.
D. After the effective date of this act, an order issued by a court directed to a person entitled to custody of or visitation with a child shall include the following or substantially similar terms:
"You, as a party in this action, are ordered to notify every other party to this action in writing of a proposed relocation of the child, change of your primary residence address, and the following information:
1. The intended new residence, including the specific address, if known;
2. The mailing address, if not the same;
3. The home telephone number, if known;
4. The date of the intended move or proposed relocation;
5. A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and
6. A proposal for a revised schedule of visitation with the child, if any.
You are further ordered to give written notice of the proposed relocation or change of residence address on or before the sixtieth day before a proposed change. If you do not know and could not have reasonably known of the change in sufficient time to provide a sixty-day notice, you are ordered to give written notice of the change on or before the tenth day after the date that you know of the change.
Your obligation to furnish this information to every other party continues as long as you, or any other person, by virtue of this order, are entitled to custody of or visitation with a child covered by this order.
Your failure to obey the order of this court to provide every other party with notice of information regarding the proposed relocation or change of residence address may result in further litigation to enforce the order, including contempt of court.
In addition, your failure to notify of a relocation of the child may be taken into account in a modification of custody of, visitation with, possession of or access to the child. Reasonable costs and attorney fees also may be assessed against you if you fail to give the required notice.
If you, as the nonrelocating parent, do not file a proceeding seeking a temporary or permanent order to prevent the relocation within thirty (30) days after receipt of notice of the intent of the other party to relocate the residence of the child, relocation is authorized."
E. 1. On a finding by the court that the health, safety, or liberty of a person or a child would be unreasonably put at risk by the disclosure of the required identifying information in conjunction with a proposed relocation of the child or change of residence of an adult, the court may order that:
a. the specific residence address and telephone number of the child or of the adult and other identifying information shall not be disclosed in the pleadings, other documents filed in the proceeding, or the final order, except for an in camera disclosure,
b. the notice requirements provided by this article be waived to the extent necessary to protect confidentiality and the health, safety or liberty of a person or child, and
c. any other remedial action that the court considers necessary to facilitate the legitimate needs of the parties and the best interest of the child.
2. If appropriate, the court may conduct an ex parte hearing pursuant to this subsection.
F. 1. The court may consider a failure to provide notice of a proposed relocation of a child as provided by this section as:
a. a factor in making its determination regarding the relocation of a child,
b. a factor in determining whether custody or visitation should be modified,
c. a basis for ordering the return of the child if the relocation has taken place without notice, and
d. sufficient cause to order the person seeking to relocate the child to pay reasonable expenses and attorney fees incurred by the person objecting to the relocation.
2. In addition to the sanctions provided by this subsection, the court may make a finding of contempt if a party violates the notice requirement required by this section and may impose the sanctions authorized for contempt of a court order.
G. 1. The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provided by this section unless a parent entitled to notice files a proceeding seeking a temporary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice.
2. A parent entitled by court order or written agreement to visitation with a child may file a proceeding objecting to a proposed relocation of the principal residence of a child and seek a temporary or permanent order to prevent the relocation.
3. If relocation of the child is proposed, a nonparent entitled by court order or written agreement to visitation with a child may file a proceeding to obtain a revised schedule of visitation, but may not object to the proposed relocation or seek a temporary or permanent order to prevent the relocation.
4. A proceeding filed pursuant to this subsection must be filed within thirty (30) days of receipt of notice of a proposed relocation.
H. 1. The court may grant a temporary order restraining the relocation of a child, or ordering return of the child if a relocation has previously taken place, if the court finds:
a. the required notice of a proposed relocation of a child as provided by this section was not provided in a timely manner and the parties have not presented an agreed-upon revised schedule for visitation with the child for the court’s approval,
b. the child already has been relocated without notice, agreement of the parties, or court approval, or
c. from an examination of the evidence presented at the temporary hearing there is a likelihood that on final hearing the court will not approve the relocation of the primary residence of the child.
2. The court may grant a temporary order permitting the relocation of the child pending final hearing if the court:
a. finds that the required notice of a proposed relocation of a child as provided by this section was provided in a timely manner and issues an order for a revised schedule for temporary visitation with the child, and
b. finds from an examination of the evidence presented at the temporary hearing there is a likelihood that on final hearing the court will approve the relocation of the primary residence of the child.
I. A proposed relocation of a child may be a factor in considering a change of custody.
J. 1. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
a. the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child’s life,
b. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child,
c. the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties,
d. the child’s preference, taking into consideration the age and maturity of the child,
e. whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating person,
f. whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity,
g. the reasons of each person for seeking or opposing the relocation, and
h. any other factor affecting the best interest of the child.
2. The court may not:
a. give undue weight to the temporary relocation as a factor in reaching its final decision, if the court has issued a temporary order authorizing a party seeking to relocate a child to move before final judgment is issued, or
b. consider whether the person seeking relocation of the child has declared that he or she will not relocate if relocation of the child is denied.
K. The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child.
L. 1. After notice and a reasonable opportunity to respond, the court may impose a sanction on a person proposing a relocation of the child or objecting to a proposed relocation of a child if it determines that the proposal was made or the objection was filed:
a. to harass a person or to cause unnecessary delay or needless increase in the cost of litigation,
b. without being warranted by existing law or was based on frivolous argument, or
c. based on allegations and other factual contentions which had no evidentiary support or, if specifically so identified, could not have been reasonably believed to be likely to have evidentiary support after further investigation.
2. A sanction imposed under this subsection shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. The sanction may include directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the other party of some or all of the reasonable attorney fees and other expenses incurred as a direct result of the violation.
M. If the issue of relocation is presented at the initial hearing to determine custody of and visitation with a child, the court shall apply the factors set forth in this section in making its initial determination.
N. 1. The provisions of this section apply to an order regarding custody of or visitation with a child issued:
a. after the effective date of this act, and
b. before the effective date of this act, if the existing custody order or enforceable agreement does not expressly govern the relocation of the child or there is a change in the primary residence address of an adult affected by the order.
2. To the extent that a provision of this section conflicts with an existing custody order or enforceable agreement, this section does not apply to the terms of that order or agreement that govern relocation of the child or a change in the primary residence address of an adult.
Outcome: ¶60 Based upon our analysis of § 112.3(J)(1), we conclude the trial court gave undue weight to several factors, including the effect of the relocation on Mother's visitation schedule and on the parties' finances, and also erred as a matter of law in not considering the Advisory Guidelines to fashion an alternative visitation plan which would allow the relocation. Moreover, several of the trial court's findings are against the clear weight of the evidence presented at the hearing.
¶61 Under those circumstances, we must set aside the trial court's order and enter the order the trial court should have entered. Mother did not sustain her burden of demonstrating that the proposed relocation was contrary to the children's best interest, and her objection to Father's relocation must be denied. The trial court's order is affirmed insofar as it denied Mother's Motion to Modify custody. In all other respects, it is reversed. The case is remanded with instructions to deny Mother's objection to Father's proposed relocation, and to make appropriate orders regarding visitation12 and any adjustments to child support necessitated by those changes as provided by law.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Plaintiff's Experts:
Defendant's Experts:
Comments: