Link for Opinion: http://caselaw.findlaw.com/ok-court-of-civil-appeals/1590612.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawOklaCivApp+(FindLaw+Case+Law+Updates+-+OK+Court+of+Civil+Appeals)
The Oklahoma Court of Appeals held in Johnson V. Wingert 268 P.3d 145 (OK CIV APP DIV. 3, 2011) that a modification of custody based on a change of circumstances requires application of the Gibbons test which requires a showing of “a permanent, substantial and material change of condition”. The Appeals court determined the evidence failed to prove such a change.
The Father of the minor child petitioned the court for a modification of custody when the child was age 6. Until then the child had lived with the mother, with the mother being the custodial parent, and the father having visitation.
At the hearing for the father’s motion, the mother failed to appear and the father was granted sole custody, at which time the child was removed from school, without notice to the mother, and taken to Virginia.
The mother filed a motion to vacate alleging the father had told her to disregard the motion to modify because he was not planning to proceed. The motion was vacated on a temporary basis and an evidentiary hearing was held.
The trial court concluded based on evidence regarding the father’s improvement in circumstances relating to employment and remarriage and the mother’s failure to prove a record of responsibility, that the child’s best interest was to be placed in the primary custody of the father and granted visitation to the mother.
On appeal, the appellate court held that the trial court applied the wrong standard in its custody determination. Because there was no actual “joint custody”, the mother acted as “de facto sole custodian” of the minor, the “best interest of the child” test should not have been used in determining custody but rather the Gibbons test which states the parent asking for modification must establish: 1) a permanent, substantial and material change in circumstances; 2) the change in circumstances must adversely affect the best interests of the child; and 3) the temporal, moral and mental welfare of the child would be better off if custody is changed to the other parent as requested.
The appellate court determined that neither parent was “glaringly inadequate” or presented safety concerns, and also determined that the evidence failed to show that the child’s temporal, moral and mental welfare would be better off with the custody changed.
Labels for the post: child visitation, modification of custody, gibbons test
No comments:
Post a Comment