by David A. Tracy
The right of a parent to custody, companionship and management of a child is a fundamental constitutional right. When one parent plans to relocate so as to make an existing time-sharing arrangement unworkable, Oklahoma has a law requiring the moving parent to notify the other by mail. The recent case of Plumlee v. Plumlee tells us that future notices should be sent by certified mail, return receipt requested, at a minimum.
The Mother and Father in this case divorced in 2008. Less than a month later, Mother filed her first notice of relocation. Father filed a timely objection under Oklahoma’s relocation statute, 43 O.S. §112.3. The trial court sustained Father’s objection, so Mother did not move with the child.
Mother filed another notice of relocation about 6 months after the order on Father’s first successful objection. She tried to serve the notice on Father by certified mail, and the envelope came back marked “Refused.” Mother filed another relocation notice because she delayed her move date, and Mother’s certified mail notice was again returned marked “Refused.”
Mother relocated with the child. Father filed an objection to the move less than a month after Mother’s relocation. Father asked the court to either enter a permanent order banning Mother’s relocation with the child, or for the Court to award him physical custody. The trial court granted Mother’s motion to dismiss Father’s objection as untimely.
Father raised the following issues in his appeal:
- Father’s objection was timely and the district court should have held an evidentiary hearing, and;
- Mother is precluded from succeeding in her second notice to relocate so soon after the court’s denial of her first attempt to relocate.
As regards the timeliness of Father’s objection, the Oklahoma Court of Civil Appeals looked to the relocation statute. It requires only notice “by mail to the last-known address of the person to be notified.” Mother in this case used certified mail, which is one of the methods Oklahoma allows for formal notice of pending matters. The court held in this case that a parent required to satisfy the notification by mail provision of the relocation statute must use these more formal methods. Notice by first class mail only is not enough. The Court determined that the fundamental family and due process issues involved in relocating a child require more formal notice than that set forth in the statute. Even though Father refused the certified mail, the court found the notice sufficient. Father’s objection was untimely, and no hearing needed to be held on the objection.
Regarding claim preclusion, the court rejected Father’s claim that Mother could not file multiple relocation notices. The relocation statute does not limit a party to one effort at relocation. The doctrine of issue preclusion may apply to successive notices to relocate, but only if there is a final determination of a material issue common to both cases. Father could not show in this case why the court denied Mother’s first attempt at relocation. As a result, father could not prove the trial court was precluded from allowing relocation based on Mother’s second notice.