When you have a child with someone you are not married to, certain legal challenges occur. Namely, the crossroads of parental rights. In Oklahoma, when the child is born the biological mother has sole custody of the child. We know who the mother is because of the act of giving birth but we don’t always know who the father is.
The father may or may not have signed the birth certificate and presumption of paternity at the hospital. Regardless, these are presumptions in the eyes of the Court.
This is often frustrating to the parties involved. I get calls every day to this effect.
The problem with these situations is that there is not a court order establishing the parental rights of the father. In a divorce when people split up the Court enters a very specific custody determination and then a visitation schedule that is enforceable.
In order to establish parental rights of the father and get visitation orders established, you need to bring a Paternity Action to the District Court of the County where the child resides.
A Paternity action is a three (3) part court case.
- Establish that you are in fact the biological father.
- Determine child custody based on the “best interests of the child.”
- Establish child support.
Let’s take this piece by piece.
First, you must be determined the biological father of the child. This can be by acknowledgment by the biological mother, or it can be by DNA test (cheek swab). Now, I get the question all the time about taking a DNA early or prior to the case. DO NOT. The DNA test must be court-ordered and follow specific rules for the chain of evidence. Meaning, that the test results must be delivered straight from the testing site to the Court. If you jump the gun on the DNA test before it is court-ordered, you may be paying for it twice!
Second, establishing custody can come in all shapes and forms but the most common are sole custody and joint custody.
Sole custody is where one party is the primary caregiver and primary decision maker for the child(ren). The other party then gets what is termed standard visitation. Standard visitation occurs from Friday at 6:00 pm to Sunday at 6:00 pm every other weekend with portions of holidays, breaks, and summer on an alternating year basis. There is not much wiggle room on this option.
Joint custody, on the other hand, can be a more custom approach to child custody. For example, it might be a week on week off or Thursday through Sunday, or 3 on 2 off, etc., etc. In joint custody, a party can still be named primary custodian, primary decision-maker, or there can be no such determination and all decisions are joint. This option works best when the parties agree, and can, co-parent effectively.
The Court uses the standard of “best interest of the child” to make this determination. Many factors go into these decisions and having representation matters at this stage if for no other reason than you are your family is going to have to live with this decision every day and for some time.
Lastly, the determination of child support must be addressed by the Court after a custody determination has been made. The Oklahoma Courts uses a computation provided by the Oklahoma Department of Human Services. You list both parties’ incomes, the number of nights each party has the children, credits for insurance, and various other factors, and the computation provides a number paid monthly to attempt to equalize the living discrepancies between the two households. Is it perfect in every situation, no, but it is a standard we follow, and we must turn in this computation in every case.
Now, some parties have already been through DHS proceedings to establish their paternity for child support purposes. This is completely different than a District Court proceeding. The only right a father has prior to a Paternity action in District Court is the right to pay child support. This does not give you custody rights, only the child support number. In a Paternity action, you can provide the DHS findings if you have gone through this process, but you will still need to accomplish each phase of the case listed above.
I will be honest with you; a Paternity action can be complex and emotionally charged. Having an experienced attorney matters greatly when it comes to the negotiation between parties in these cases. If you need help with a Paternity case or have specific questions, please contact my office for a free consultation to discuss things further. Click this link to schedule!
