A father’s attempt to relocate with his son and terminate joint child custody with the mother in Oklahoma fails on appeal.
The Father and Mother in Caber v. Dahle originally crafted a joint child custody plan with Father having primary physical custody. He also had ultimate decision-making authority in the event the parties disagreed concerning the upbringing of their child. The Court ordered Mother to pay child support.
In May 2009, Father filed for a temporary restraining order based on conditions in Mother’s home. The trial court granted Father an emergency order for temporary custody of the child, suspending mother’s visitation, and appointing a guardian ad litem (GAL) for the child. Shortly after, Father filed a motion to terminate the joint child custody plan and award him sole custody. Mother responded with her own motion to terminate joint custody. In October 2009, while the applications to terminate were still pending, Father filed a Notice of Relocation. He wanted to move with the child to Pennsylvania.
The Custody Hearing
The custody evidence focused on the following: injuries suffered by the child while in Mother’s care (mother claimed they were common childhood injuries – DHS investigated and could not confirm any abuse); mother’s frequent changes of residence and roommates (she had her own residence by the time of the hearing), and; drug use in father’s home (his wife, whom he was divorcing, tested positive for marijuana while pregnant – they also had hurt each other during a fight while drinking).
The GAL reported concerns that Father’s actions undermined Mother’s role as a parent. Also, Father was not relocating for employment reasons. The GAL recommended that the joint child custody plan remain in place, that Mother not associate with one particular person, and that Father’s request to relocate with the child be denied. The trial court followed the GAL’s recommendation. Father appealed.
Father’s appeal claimed the trial court should have terminated the joint child custody plan because the parties could not get along. Father asserts he should be awarded sole custody because the child would be substantially better off with him. The appellate court notes that “joint custody requires parents who (1) have an ability to communicate with each other; (2) are mature enough to set aside their own differences; and (3) can work together and engage in joint discussions with each other and make joint decisions regarding the best interest of their child.” In the appellate court’s view, father’s evidence went to conditions in mother’s home, not to an inability to communicate regarding the child’s best interests.
Father also claimed on appeal he should be allowed to relocate with the child because mother never responded to his notice to relocate. The appellate court held Father did not have the right to determine by himself where the child lived under either the joint child custody plan, or the temporary restraining order giving him temporary custody. In the Court’s view, Father voluntarily invoked the Court’s jurisdiction to determine the merits of his relocation request.
Father also cited Mother for contempt for failure to pay child support. Although Mother was ordered to pay just over $200.00 per month, she was only paying $50.00 per month. Mother testified that she earned approximately $900 per month and that any additional money she has available goes toward her attorney fees and fees for supervised visitation with Child. The trial court found Mother not guilty of indirect contempt but ordered Mother to pay an arrearage at $75 a month. The appellate court declined to review the factual determination that Mother’s failure to pay was not willful, so she was not in contempt of court.
by David A. Tracy