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By Noel Tucker and Phil Tucker

International aspects of family law cases are on the rise. With anincrease in foreign exchange students and the globalization of the world'seconomy, greater opportunities exist for U.S. citizens and foreign nationalsto meet, fall in love and have children. Also, the expansion of U.S. militarycommitments has caused a significant increase in the deployment of mili-tary members to overseas duty stations, often being accompanied by depen-dent families (when in non-combat zones). In a post 9/11 world, changes inU.S. passport policies have occurred, resulting in making possession of a validpassport almost essential for any international vacation travel - even toCanada and the "deep South" - i.e. Mexico, Caribbean basin, etc (See general-ly, the Western Hemisphere Travel Initiative which is a result of the IntelligenceReform and Terrorism Prevention Act of 2004, as well as 22 CRF parts 41 and 53)It should come as no surprise that disputes over children's passports are alsoon the rise. However, children passport issues are not so common place thateveryone knows and remembers the rules, conditions and requirements.Instead, it occurs just enough to require the practitioner to continually re-educate the Court and their clients in order to avoid the traps and snares.

Passports - General Information

A passport is a travel document issued by a competent authority showingthe bearer's origin, identity, and nationality, which is valid for the entry of thebearer into a foreign country (8 U.S.C. § 1101 (3)). Under U.S. law, U.S.citizens must enter and depart the U.S. with valid U.S. passports (8 U.S.C.§1185(b)). However, each foreign country has its own entry requirementsconcerning citizenship, passports and visas. Information regarding those re-quirements may be obtained from the appropriate foreign embassy or consul-ate. The addresses and telephone numbers for the foreign embassy orconsulate near you is best found on the U.S. Department of State website, located at http://www.state.gov this link is worth bookmarking in yourinternet browser's favorites.

The Privacy Act and Passports

Passport information is protected by the provisions of the Privacy Act (PL93-679) passed by Congress in 1974. However, except for good causeshown, information regarding a minor's passport is available to either parentInformation regarding adults may be available to law enforcement officials orpursuant to a court order issued by a court of competent Jurisdiction in accor-dance with (22 CFR 51.27). Therefore, if you have questions or concernson whether or not the other parent has a valid passport in their possession...or has applied for one, your client would bewail served by obtaining a courtorder directing the U.S. Department of State to disclose the other parent'spassport information.

International Passport Issuesin Domestic Relations Cases

Children’s Passport Issues Noel and Phil Tucker.........p.1

Passport Issues in Child Support Cases Amy Wilson........................p.5

Legislative Activity and CaseLaw

Recent Developments in FamilyLaw Robert Spector...................p. 9

Final Legislative Report 2010 Robert Spector...................p. 32

Forms

Request for Registration onPassport Watch List.............p. 8

FLS Meeting Schedule... ..p. 38

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Application for Passports - Minors

Effective June 2, 2001, the Department of State, Bureau of Consular Affairs adopted a rule (66 FR 29904)amending Part 51 of Title 22 of the Code of Federal Regulations (CFR). In enacting the rule, it sought touse the passport application process as a vehicle for deterring parental child abduction. As a consequence,passports are no longer issued for children who are the subject of a custody dispute or where there is jointcustody, without the consent of both parents.

Title 22 CFR 51.27 (b) requires both parents or each of the child's legal guardians, to execute the passportapplication on behalf of a minor under age 14 under penalty of perjury, whether applying for a passport for thefirst time or for a renewal. In addition, documentary evidence of parentage is required showing the minor's name,date and place of birth, and the names of the parent or parents. A person making false statements or providingfraudulent documents to procure a passport is subject to criminal penalties.

A passport application may be executed on behalf of a minor under age 14 by one parent or legal guardian onlyif that person provides documentary evidence that he or she is the sole parent or has sole custody of the child, or ifa written statement of consent from the non-applying parent or guardian is provided.

An individual may apply in loco parentis on behalf of a minor under age 14 by submitting a notarizedwritten statement or a notarized affidavit from both parents specifically authorizing the application. However,if only one parent provides the notarized written statement or notarized affidavit, documentary evidence thatsuch parent has sole custody of the child must be presented.

Exceptions to this requirement exist for exigent or special circumstances. Such circumstances involve timesensitive situations that affect the health, safety and welfare of the child. Typically, exigent circumstances involveserious illness or risk of separation of the child from the traveling family.

A parent applying for a passport for a child under age 14 who seeks an exception must submit with theapplication a written statement subscribed under penalty of perjury describing the exigent or special family circum-stances the parent believes should be taken into consideration in applying for an exception.

Custody Disputes

The Federal Regulations [22 CFR 5127 (d)(1)(i)] also provide that when there is a dispute concerning thecustody of a child under age 18, a passport may be denied if the State Department has on file a copy of a courtorder that either:

(A) grants sole custody to the objecting parent;

(B) establishes joint legal custody (which the department treats as inherently requiring bothparents to consent to the passport issuance);

(C) prohibits the child's travel without the permission of both parents or the court; or

(D) requires the permission of both parents or the court for important decisions, unless permissionis granted in writing as provided therein.

Conversely, you do not want to inhibit a child's opportunity to enjoy an overseas vacation with a parent due topassport restrictions. Therefore, if international abduction is not a concern in your case you may want to insist ona clause, such as the following, in settlement agreements and/or joint custody plans you negotiate on behalf of aparent who does not have sole custody of his/her child

"The mother and father agree that either parent may apply for a passport on behalf of thechild(ren), without the written consent of the other parent, provided that a copy of each child'spassport application is sent to the other parent, by certified mail, return receipt requested, at thesame time that it is submitted to the Department of State.”

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Lastly, encourage your client to make a copy of the child's passport and leave it with a family member,i.e. grandparent or other safe place.

If your case involves a parent who has dual citizenship or family who reside in another country and you areconcerned about the possibility of abduction, then you should assist your client with placing the child(ren) in theChildren's Passport Issuance Alert Program ("CPIAP"). Children's Passport Issuance Alert Program. Thisprogram provides for parental notification and the denial of a passport to a minor of any age who is the subjectof a child custody dispute. Parents who fear that their child may be abducted should make use of this program.The CPIAP enables the State Department Office of Children's Issues to notify a parent or legal guardian,when requested, before issuing a U.S. passport for his or her child. At the request of a custodial or non-custodi-al parent, legal guardian, legal representative or a court of competent jurisdiction, the department will en-ter the child's name into its passport name-check clearance system. This allows the department to alert therequesting parent if a passport application is received for the child.

Prevention is always the best cure in these situations. First, determine how vulnerable the child is toabduction. Obviously, if the relationship with the other parent is troubled or broken, your client will want to takeprecautions. Does the foreign national parent have close ties to another country? Does the foreign nationalparent have sufficient resources, or access to sufficient resources to finance an abduction? Does the foreignnational parent come from a country that has traditions or laws that may be prejudicial against women, childrenor non-citizens In general? These question must be asked and answered to determine how vulnerable yourclient's child(ren) may be to abduction. Many cases of international parental abduction are actually cases inwhich the child traveled to a foreign country with the approval of both parents, but was later prevented fromreturning to the United States.

One preventive step to consider is asking the divorce court at the first available opportunity to prohibit eitherparent from obtaining a passport for the child. It has been our experience that Courts are very agreeable togranting the requested mutual prohibition. However, be prepared to present your evidence regarding yourclient's concerns about potential abduction. Obviously, notification from the Department of State that an applica-tion has been made for a child’s passport without your client’s knowledge would be persuasive evidencefor a court to grant your client's request to prohibit travel for the child during the pendency of the litigation.Generally, this type of mutual restraint relief is much easier to obtain in the beginning of the case, than the laterstages. Orders of Restraint might look something like these:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that neither Petitioner norRespondent shall apply for, nor have the authority to apply for either a passport or visa within theUnited States or through any Consulate or Embassy abroad for [full legal name of child] withoutan expressed order of this Court authorizing said act."

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that neither Petitioner norRespondent shall travel outside the United States with [full legal name of child] without anexpressed order of this Court authorizing such foreign travel."

Be sure to include in any order to the U.S. Department of State specific findings regarding service on the otherparty, their presence at the hearing, etc. The U.S. Department of State often ignores or disregards default ordersregarding passport matters.

Another way to prevent the issuance of a passport for a minor child is to control the necessary documents requiredto be presented with the child's passport application. Towards this end, have your client secure the exclusivecontrol of all documents relating to the child's evidence of U.S. citizenship. However, even if your client retainsthe birth certificate there is nothing to prevent the other parent from obtaining a certified copy from the stateDepartment of Health or Vital Records.

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PRACTICE TIP: Besides the prohibition language suggested above, one could alsoask the Court to limit the foreign national parent from obtaining any documentsrelating to the child's evidence of U.S. citizenship.

Once you get the court order setting forth custody and containing prohibitive language regarding theissuance of a child's passport and/or international travel, it would be wise to take several additional steps. First, obtainseveral certified copies of the restraining and/or custody order for your client Instruct him/her to give a copy of the order tothe child's school and advise the school personnel to whom the child may be released. Most abductions start by the parenttaking the child from school. Second, place the child into the Department of State's passport alert program. This is doneby completing a request form and sending it by FEDEX, DHL, Express Mail, etc. To:

U.S. Department of State

Office of Children's IssuesCA/OCS/CI

1800 G Street, NWSuite 2100

Washington, DC 20006or by Regular Mail to:

U.S. Department of State

Office of Children's IssuesCA/OCS/CI

2201 C Street, N.W.Washington, D.C. 20520-4818

Accordingly, it is recommend that important correspondence be initially faxed to (202)312-9743, with hard copies sent bycourier such as FEDEX, DHL, Express Mail, etc. to ensure prompt delivery. A sample CPIAP request form is attached. Insection 2 of the request form, you may also provide counsel's information so that the Department of State can contactboth the parent and counsel if an application for a U.S. Passport for the child is received anywhere in the UnitedStates at any U.S. Embassy or consulate abroad. As noted above, the Passport Issuance Alert Program to theOffice of Children's Issues also provides denial of passport issuance, if appropriate court orders are on file with theOffice of Children's Issues. In the State Department's official policy, it notes:

If you have a court order that either grants you sole custody, joint legal custody, or prohibitsyour child from traveling without your permission or the permission of the court, the Departmentmay also refuse to issue a U.S. passport for your child. The Department may not, however,revoke a passport that has already been issued to the child.

There is no way to track the use of a passport once it has been issued, since there are no exit controls on peopleleaving the United States. With the Alert Program, the State Department will make every effort to refuse the issuanceof a child's passport--but there are no guarantees.

As with most of life, timing is everything. Regarding international matters, begin early, begin early ....begin early.A case with passport issues will always take more time than you or your client will anticipate.

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Passport Issues in Child SupportBy Amy Wilson

Appellate Counsel for Office of Child Support Enforcement

One of the remedies that Oklahoma Child Support Services pursues when an obligor owes past duechild support is the placing of a hold on the obligor’s passport. OCSS does this by referring these obligorsto the federal Office of Child Support Enforcement (OCSE), who will then report the obligor to the U.S.Department of State.

(a) Threshold for Referral. Title IV-D agencies are required to refer obligors who owe $2,500.00 or morein delinquent child support to OCSE. 42 U.S.C. §652(k) was amended effective October 1, 2006 loweringthe threshold for passport denial to $2,500.00 or more in delinquent child support; 56 O.S. §240.1(E).State law does not include a threshold amount but the federal law requires the $2,500.00 threshold.OCSE forwards the names of delinquent obligors to the U.S. Department of State. As in the case of theadministrative offset program, the child does not need to be a minor when the case is certified to OCSEfor passport denial. If the amount of the delinquency falls below $2,500.00, the case is not deleted fromthe passport denial program.

(b) New Passports Denied. The Secretary of State has the authority to deny a passport or to revoke,restrict or limit a passport previously issued; however, currently the State Department is only denyingpassports at the time of application. Passports are valid for ten years and there is no mechanism forrevoking or restricting an existing passport unless it is submitted to the State Department for a change.

(c) Advance Notice. The same pre-offset notice issued by OCSE to obligors to notify them of federal taxrefund offset and administrative offset informs them of the passport denial program. Subsequent noticesare not issued unless the case is deleted from referral for some reason and then resubmitted. Theadvance notice advises the obligor of the right to an administrative review to contest the delinquencydetermination.

(d) Present Agreement Suspends Denial. When an obligor who owes $2,500.00 or more applies for apassport, he or she is denied a passport and advised to contact the state agency that certified the childsupport delinquency. A passport will not be issued until OCSE certifies to the State Department that theobligor has repaid the debt or made appropriate arrangements to repay the debt. If OCSS enters into anagreement with the obligor for repayment of the debt, OCSS notifies OCSE that it withdraws its requestfor passport denial.

OCSS may request withdrawal of a noncustodial parent from the passport denial process if the noncus-todial parent pays the entire child support debt or:

(1) pays the entire child support debt down to the threshold amount;

(2) enters into a repayment agreement or order to retire the remaining child support debt in not more than36 equal monthly payments; and

(3) provides OCSS with a verified source of future income for which an income assignment may be issuedfor payment of all current support and arrears.

(e) Exceptions to Denial. Also, if the obligor provides proof of a life or death situation or a medicalemergency, the state can ask that the passport be issued, even if the delinquency is still owed. If morethan one state has certified the obligor to OCSE, each state must delete the obligor from the passportdenial program before a passport will be issued. If the obligor is outside of the United States when thepassport is denied, he or she will be entitled to receive a travel document allowing only direct andimmediate return to the U.S.

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(f) Director’s Exception. OCSS policy provides that the OCSS Division Director has discretion torelease the hold on a passport that does not meet the criteria set out above in a very limited number ofsituations. Usually, these are situations where the obligor has no assets or means of satisfying thejudgment within the U.S., but has a verified source of funds or employment if allowed to travel abroad.OCSS will consider input from the custodial person in conjunction with the request for exception. If theobligor has more than one open child support case, the obligor must make arrangements on all beforethe passport hold will be released.

(f) Administrative Review. The obligor has the right to an administrative review to contest the amountof the past due support. If an obligor requests an administrative review, OCSS conducts a preliminaryreview and advises the obligor of its determination. If the obligor does not agree with OCSS’s determina-tion, he or she has the right to an administrative hearing.

Oklahoma Administrative Code

340:25-5-214. Passport denial, revocation, restriction, or limitationAvailable online at: http://www.okdhs.org/library/policy/oac340/025/05/0214000.htmRevised 7-1-09(a) Section 652 of Title 42 of the United States Code provides for the United States Secretary of Stateto refuse to issue a passport to a person certified as owing child support debt. It also provides for ac-tion to revoke, restrict, or limit a passport already issued. If the amount of arrears owed by a personexceeds the threshold amount for certification set by federal law or regulation, Oklahoma Child SupportServices (OCSS) may certify the person under Section 654 of Title 42 of the United States Code andSection 240.1 of Title 56 of the Oklahoma Statutes. • 1(b) Before issuing a certification as described in (a) of this Section, OCSS provides notice to the non-custodial parent of OCSS determination that the noncustodial parent owes child support debt, the con-sequences of the determination, and the opportunity to contest the determination through either:

∙ (1) the annual notice process as established in Section 237A of the Title 56 of the OklahomaStatutes and OAC 340:25-5-213; or

∙ (2) notice of federal offset under Section 303.72 of Title 45 of the Code of Federal Regulationsand OAC 340:25-5, Part 25.

(c) If OCSS finds a request for certification was submitted in error, or in a life or death situation, OCSSrequests immediate release of a noncustodial parent’s passport from the process described in (a) of thisSection. • 2(d) OCSS may request release of a noncustodial parent’s passport from the process described in (a) ofthis Section if the noncustodial parent pays the entire child support debt or:

∙ (1) pays the entire child support debt down to the threshold amount;∙ (2) enters into a repayment agreement or order to retire the remaining child support debt in not

more than 36 equal monthly payments; and∙ (3) provides OCSS with a verified source of future income for which an income assignment may

be issued for payment of all current support and arrears. • 2(e) A passport may be released from the passport referral process at the discretion of the OCSS direc-tor. The district office may request a director’s exception when it is determined the passport denial, re-vocation, restriction, or limitation negatively impacts a reliable source of child support. When thearrears are not assigned to the state, OCSS considers the input of the custodial person in reviewing thecase for release from the passport referral process. • 3, • 4 & • 5(f) After requesting release of a case from the passport referral process, OCSS may at any time recerti-fy the case as described in (a) of this Section.

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INSTRUCTIONS TO STAFF 340:25-5-214Revised 7-1-09

1. The threshold amount for certification described in OAC 340:25-5-214(a) is set by federal law orregulation, currently $2,500. The district child support office has the discretion to require more thanthe amounts stated in OAC 340:25-5-214(d) before releasing a passport to a noncustodial parent.

2. (a) Child support staff forward all requests for release of passports to Oklahoma Child Support Ser-vices Center for Coordinated Programs. The Center for Coordinated Programs denies requeststhat do not meet the criteria in OAC 340:25-5-214(d).(b) A request for release of passport must contain:

(1) a copy of the passport denial letter received by the noncustodial parent, and the noncustodi-al parent's current address and telephone number and date and place of birth. If the passportdenial letter is not available, district office staff contact the Center for Coordinated Programs forassistance; and(2) in a life or death situation, verification of the death or medical emergency of an immediatefamily member.

(A) Child support staff forward an explanation of the situation, with any corresponding docu-mentation, to the federal Office of Child Support Enforcement (OCSE) with the completedEmergency Notice of Withdrawal of Passport Denial form.(B) An immediate family member includes parent or guardian of the noncustodial parent,child (natural or adopted), grandparent, sibling, aunt, uncle, stepchild, stepparent, step-brother, stepsister, and spouse.

(c) If a balance of child support arrears remains due when the district office requests release of thecase from the passport process, child support staff updates the employer and obligation screens onthe automated Oklahoma Support Information System (OSIS).(d) Within five days of receipt of all necessary information, the Center for Coordinated Programsprepares and sends the documentation to OCSE to be forwarded to the United States Secretary ofState and updates Case Log Add (CSLOGA) on OSIS.

3. District offices must coordinate with each other to ensure a passport is not withdrawn from thepassport referral process in one district office when a noncustodial parent has a passport denial,revocation, restriction, or limitation in another district office.

4. One instance when a district office may request an OCSS director’s exception is when the noncus-todial parent currently has no resources and has potential verified employment outside the UnitedStates.

5. When the district office requests the release of passport denial, revocation, restriction, or limitationoutside of the grounds listed in OAC 340:25-5-214(d):

(1) the district office e-mails a request for release from the passport referral process to the OC-SS director and the Center for Coordinated Programs, stating the reasons why the noncustodialparent should not be required to comply with the release process in OAC 340:25-5-214(d);(2) the district office documents the reason for the request to the OCSS director on the auto-mated Oklahoma Support Information System Case Log Add (CSLOGA) screen;(3) upon receipt of a request for release from the passport referral process, the OCSS directornotifies the district office and the Center for Coordinated Programs of the decision as soon aspossible; and(4) the district office provides the information described in OAC 340:25-5-214 Instructions ToStaff 2 to the Center for Coordinated Programs.

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Complete one form for child, and submit the completed and SIGNED request tothe Office of Children's Issues by mail or fax.

Child's Full Name:Date of Birth:

Place of Birth:

Sex:

Social Security Number

US Passport Number(s):

Foreign Passport Numbers), List any other country involved:

Your name:

Relationship to the child shown above:

Mailing Address:

Telephone Numbers/Fax Numbers:

Dated:

Signed: _

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Recent Developments in Family Law2009-2010

By Robert G. Spector

Glenn R. Watson Chair and Centennial Professor of Law, University of Oklahoma

FEDERAL DEVELOPMENTS

HAGUE CONVENTION ON THE CIVIL ASPECTS OF CHILD ABDUCTION; A NE EX-EAT PROVISION IS A RIGHT OF CUSTODY

Abbott v. Abbott, S.Ct. , 2010 WL 1946730 (U.S. 2010). Fastcase No. 08-645. ArguedJanuary 12, 2010, decided May 17, 2010.

Editor’s Note: Ne Exeat [L. ne exeat regno let him not go out of thekingdom] A writ to restrain a person from leaving the country, or thejurisdiction of the court.

After the Abbotts, a married couple, moved to Chile and separated, the Chilean courts granted therespondent wife daily care and control of their minor son, J. A., and awarded the petitioner husband visitationrights. Mr. Abbott also had a ne exeat right to consent before Ms. Abbott could take A. J. A. out of the countryunder Chile Minors Law. When Ms. Abbott brought A. J. A. to Texas without permission from Mr. Abbott or theChilean family court, Mr. Abbott filed in the Federal District Court, seeking an order requiring his son's returnto Chile under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and theimplementing statute, the International Child Abduction Remedies Act (ICARA), 42 U. S. C. §11601 et seq.Among its provisions, the Convention seeks "to secure the prompt return of children wrongfully removed orretained in any Contracting State," Art. 1; provides that such "removal or retention ... is to be considered wrongfulwhere" "it is in breach of rights of custody attributed to a person ... under the law of the State in which the childwas [theretofore] habitually resident," Art. 3(a), and where "those rights [had been] actually exercised ... orwould have been so exercised but for the removal or retention," Art. 3(b); and defines "rights of custody" toinclude . . . the right to determine the child's place of residence," Art. 5(a). The District Court denied relief,holding that the father's ne exeat right did not constitute a "right of custody" under the Convention and, thus, thatthe return remedy was not authorized. The Fifth Circuit affirmed.

The Supreme Court granted certiorari to consider a conflict between the circuits. In addition to the Fifth Circuit,the Second Circuit, Croll v. Croll, 229 F. 3d 133 (2nd Cir. 2000); the Ninth Circuit, Gonzalez v. Gutierrez, 311F. 3d 942 (9th Cir. 2002); and the Fourth Circuit, Fawcett v. McRoberts, 326 F. 3d 491, 500 (4th Cir. 2003), allheld that a ne exeat right does not constitute a right of custody under the Convention. The Eleventh Circuitdisagreed, Fumes v. Reeves, 362 F. 3d 702 (11th Cir. 2004). The Supreme Court reversed the decision ofthe Fifth Circuit and held by a 6-3 vote, that a ne exeat right does constitute a right of custody.

The Convention applied to the case because the child was under 16 years and the United States and Chileare both contracting parties. The ICARA instructs the state or federal court in which a petition alleginginternational child abduction has been filed to "decide the case in accordance with the Convention." §11603(b).

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Chilean law determines the content of Mr. Abbott's right, while the Convention's text and structure resolvewhether that right is a "right of custody." The Chilean Minors Law 16,618, art. 49, provides that"[o]nce the courthas decreed" that one of the parents has visitation rights, that parent's "authorization" generally "shall also berequired" before the child may be taken out of the country. Because Mr. Abbott has direct and regular visitationrights, it followed that he had a ne exeat right under article 49. The Convention recognizes that custody rightscan be decreed jointly or alone Art. 3(a). Mr. Abbott's ne exeat right is, according to the court, best classified asa "joint right of custody "which the Convention defines to "include rights relating to the care of the person of thechild and, in particular, the right to determine the child's place of residence," Art. 5(a).

Mr. Abbott's right to decide the child's country of residence allows him to "determine the child's place ofresidence," especially given the Convention's purpose to prevent wrongful removal across international borders.It also gives him "rights relating to the care of the person of the child," in that choosing the child's residencecountry can determine the shape of his early and adolescent years and his language, identity, and culture andtraditions. The court found that the argument that a ne exeat right does not fit within traditional physical-custodynotions is beside the point because the Convention's definition of "rights of custody" controls.

Relying exclusively on the terms of the convention ensures international consistency in interpreting theConvention by foreclosing courts from relying on local usage to undermine recognition of custodial arrangementsin other countries and under other legal traditions. Ms. Abbott claims that a ne exeat right cannot qualify as aright of custody because the Convention requires that any such right be capable of "exercise]." This argumentthe court concluded is misplaced because when one parent removes a child without seeking the ne exeatholder's consent, it is an instance where the right would have been "exercised but for the removal or retention,"Art. 3(b). The Fifth Circuit's conclusion that a breach of a ne exeat right does not give rise to a return remedywould render the Convention meaningless in many cases where it is most needed. Any suggestion that a neexeat right is only a right of access, or visitation, does not comport with the text of the Convention which definesa right of access as a "right to take a child for a limited period of time." Art. 5(b).

The conclusion that a ne exeat right is a right of custody is strongly supported by the longstanding view of theState Department's Office of Children's Issues that ne exeat rights are rights of custody. The Supreme Courthas always indicated that it owes deference to the Executive Branch's treaty interpretations. See SumitomoShoji America, Inc. v. Avagliano, 457 U. S. 176. The Executive, when dealing with delicate foreign relationsmatters like international child abductions, possesses a great store of information on practical realities such asthe reactions from treaty partners to a particular treaty interpretation and the impact that interpretation may haveon the State Department's ability to reclaim children abducted from this country.

Traditionally the Supreme Court, in interpreting a treaty, utilizes the views of other contracting countries. Thatis particularly appropriate in this case because the ICARA directs that "uniform international interpretation" of theConvention is part of its framework, see §11601 (b) (3) (B). While the Supreme Court of Canada has reachedan arguably contrary view, and French courts are divided, a review of international law confirms that courts andother legal authorities in England, Israel, Austria, South Africa, Germany, Australia, and Scotland have acceptedthe rule that ne exeat rights are rights of custody within the Convention's meaning. Scholars also agree thatthere is an emerging international consensus on this issue. The Convention's history is fully consistent with theconclusion that ne exeat rights are just one of the many ways in which custody of children can be exercised.

The court also determined that its holding comported with the Convention's objects and purposes. There is noreason to doubt the ability of other contracting states to carry out their duty to make decisions in the best interestsof the children. To interpret the Convention to permit an abducting parent to avoid a return remedy, even whenthe other parent holds a ne exeat right, runs counter to the Convention's purpose of deterring child abductionsto a country that provides a friendlier forum. Denying such a remedy would, the court said, legitimize the veryaction, removal of the child, that the Convention was designed to prevent, while requiring return of the child incases like this one helps deter abductions and respects the Convention's purpose to prevent harms to the childresulting from abductions.

The court noted that there are a number of defenses to the return of the child. Those defenses, the court said,could be considered upon remand of the case.

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CRIMINAL CONTEMPT OF COURT; CERTIORARI GRANTED

In re Robertson, 940 A.2d 1050 (D.C. 2008) cert granted as Robertson v. U.S.,ex rel. Watson, 2009 WL 4748708 (D.C. 2009).

The United States Supreme Court has granted certiorari in a case in which the District of Columbia Court ofAppeals held that a provision of the District's intrafamily offense statute, allowing a private person to enforce acivil protection order (CPO) by seeking to hold a violator in criminal contempt, does not contravene the generalprinciple that criminal prosecutions are brought in the name of the sovereign. The Court of Appeals reasonedthat in the case at bar, a woman's motion to adjudicate her former boyfriend in criminal contempt of a CPO wasconducted as a private action brought in the name and interest of the woman, not as a public action brought inthe name and interest of the sovereign. The grant of certiorari was limited to the following question: whether anaction for criminal contempt in a congressionally created court may constitutionally be brought in the name andpursuant to the power of a private person, rather than in the name and pursuant to the power of the UnitedStates.

An amicus brief filed by Solicitor General had asked whether the Due Process Clause of the Fifth Amendmentrequires the beneficiary of a CPO, when pursuing a private right of action under District of Columbia law forcriminal contempt of the CPO, to bring the action in the name and under the authority of the United States. Asupplemental brief filed by the former boyfriend argued that in the Court of Appeals, the United States had takenthe position that the criminal contempt proceeding could be brought as a private right of action. The SolicitorGeneral's brief failed to explain, or even acknowledge, the Government's changed course, the former boy-friend's supplemental brief said.

STATUS

SEPARATE MAINTENANCE; PROPERTY DIVISIONHusband v. Husband, 2010 OK CIV APP 42, _____P.3d ____

The husband and wife separated by an agreed decree of separate maintenance in 2005. The decreeprovided that each party was to retain their individual retirement account with their employer. The decree alsoprovided that the husband was to pay the wife $18,000 in support alimony at $300 per month. [Parentheticallyit should be noted that the parties could agree to such an alimony provision. However, the rules with regard tosupport alimony in a separate maintenance proceeding require that alimony not be set in a sum certain but ata particular amount per month without an end date. See Hughes v. Hughes, 1961 OK 112, 363 P.2d 155].The wife began cohabiting with another man and the husband unilaterally stopped payment on the alimonyand filed for divorce. The wife cross-petitioned for divorce and requested a re-division of the pensions so eachwould receive one-half of each other's pension. The trial court determined that the property division in theseparate maintenance decree was final and therefore there was no property to divide. The wife appealed andthe appellate panel affirmed.

Earlier cases in Oklahoma concerning the relationship between separate maintenance and divorce weresomewhat confused. See e.g., Clay v. Sun River Min. Co., 302 F.2d 599 (10th Cir. 1962) A number of caseshad held that where a petition was brought for separate maintenance under 43 O.S. §129 and propertydivision or alimony was temporary because the marriage was still on-going. However, if the action was broughtfor divorce and the court denied the divorce but granted separate maintenance, a division of the property under43 O.S. §108 was considered proper. The court appeared to resolve this problem in Woodroof v. Barrington,1947 OK 247, 184 P.2d 771, where it held that:

In an action for divorce, alimony, and the division of jointly acquired property, where the plaintiff,upon submission of the cause to the court, in open court withdraws her prayer for divorce andasks only for separate maintenance, and division of the jointly acquired property of the parties,and the defendant consents to such modification, and the court, without objection on the part of

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the defendant, decrees a division of the jointly acquired property, such judgment, as to thesettlement of property rights, is not void as beyond the power of the court, and the subsequentreconciliation of the parties does not affect their property rights under the judgment. §0.

The wife argued that Woodroof was not applicable because that case began as a divorce action. The wifewithdrew her complaint for a divorce and asked instead for separate maintenance. This would bring the wife'sclaim in that case under 43 O.S. §108. However, this case was brought originally as a separate maintenanceaction. Woodroof, however, noted that difference and held that:

We perceive no substantial distinction in cases where, although grounds for divorce are established, theright to a divorce is waived or relinquished and in cases where, although a divorce is sought, it is deniedby the trial court. Whether in such cases the divorce is not sought by the parties, or whether it is sought,but not granted by the trial court, their situation, in so far as the right to the division of the property isconcerned, is identical. We think that section 1275 applies to all such cases where a divorce is notgranted, and that in such cases whether or not jointly acquired property should be divided is left to thesound discretion of the trial court. It would be inconsistent with reason and justice to hold that where adivorce is refused by the trial court the jointly acquired property may be divided, but that where the rightto divorce is waived or renounced by the parties the court is without power to divide the jointly acquiredproperty, although the evidence shows good cause for such division. §14.

The panel then decided to set-out standards for when a division of property was proper in a separatemaintenance case as follows:

1. In an action initiated and concluded as a divorce case, including an action where one party counter-petitionsfor a divorce. 2. In an action initiated as a divorce case, but concluded as a separate maintenance decree. 3.In an action initiated as a separate maintenance action and concluded as such where:

a. One or both parties ask for a property division; and b. The grounds for a divorce are establishedalthough a divorce is not granted, and the likelihood of reconciliation is remote.

The panel concluded that this case came within the third category. The parties agreed that the original actionbegan and concluded as a separate maintenance action. The husband's testimony supported the conclusion thatthe parties agreed to a final disposition of their property and their actions with regard to their residence andpersonal property were consistent with such an agreement. In addition the separate maintenance decree madea finding that the parties were incompatible. Neither party's testimony gave any hint of potential reconciliation,indeed wife's testimony indicated that the separation would continue until death.

Therefore, when entering separate maintenance decree, the trial court had the authority to finally divide theparties* property and did so in accordance with their agreement. As a result, the trial court was correct in findingthat there was no property to divide in the divorce case.

CUSTODY AND VISITATION

Experts in Custody CasesHouse Bill 1520

NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 120.7 of Title 43, unlessthere is created a duplication in numbering, reads as follows:

A. As used in this section, "court expert" means a parenting coordinator, guardian ad litem, custody evaluatoror any other person appointed by the court in a custody or visitation proceeding involving children.

B. Before the court appoints an individual as a court expert, the following disclosures shall be made by thecandidate to the parties:

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1. A disclosure of any prior relationships with any party, attorney or judge in the pending action;

1. A complete resume disclosing all personal and professional qualifications to serve as a court expert;

1. Any suspensions from practice, reprimands, or other formal punishments resulting from an adjudication ofcomplaints filed against the person with the professional licensing board or other organization authorized toreceive complaints regarding the performance of the individual in question; and

1. Any criminal convictions within the past ten (10) years and inclusion on any sexual offender list.

C. A party may file an objection to the appointment of a proposed court expert within fifteen (15) days after thereceipt of the disclosures required by subsection B of this section. Upon filing an objection to the proposed courtexpert, the court shall set the matter for hearing. If requested, the party objecting to the appointment of theproposed court expert shall be entitled to discovery related to the qualifications and appropriateness of theproposed court expert prior to hearing.

There is no effective date in the bill so it becomes effective 90 days after the session ends.

PRESUMPTIVE JOINT CUSTODY FOR CHILD BORN OUT OF WEDLOCK HB 1964,Signed by Governor. Emergency.

This bill adds §7800 to the Uniform Parentage Act in Title 10. It resurrects part of the old 10 O.S. §6 byproviding that the mother has custody of a child born out of wedlock until such time as parentage isdetermined. It then provides that after parentage is determined both parents are presumed custody untildetermined otherwise by a court. The parties are encouraged to enter into an agreement to document thescope of legal and physical custody. Immediately effective.

DUTIES OF THIRD PARTY CUSTODIANHB 1964 Signed by Governor. Emergency.

Guardianship statutes are amended to add section 2-109(B) to provide that "An order providing for the transferof the permanent care and custody of a child" shall require that the placement be reviewed within one year andto require the child's custodian to submit any records needed by the court. It also provides for periodic reviewsas necessary to serve the child's best interest.

It is very unclear whether this section applies only when custody is placed with a third party in a guardianshipproceeding. If so then it would not apply when custody is obtained by a third party in the context of a divorcecase or any other proceeding outside of guardianship. It is also unclear exactly what the court is to do in thereview hearing. To the extent that the review hearing can result in a change of guardianship, the law doesnot state what the burden of proof is to be. Immediately effective.

THIRD PARTY CUSTODY BY ABANDONMENTHB 1964 Signed by Governor. Emergency.

The bill also amends the guardianship statutes by adding 30 O.S. §2-107 which allows the court to place theguardianship of a minor child who has been abandoned with a qualified relative. Abandonment is defined asin the Children's Code at 10A O.S. §1-1-105. In order to trigger this section the child must be residing full timewith the relative and the relative is unable to contact the parent or person having legal custody of the child. Orthe person having legal custody fails to or refuses to regain physical custody of the child after having beencontacted in writing by the relative with whom the child is living. The statute sets out the form of the petition thatshould be filed, including the appropriate UCCJEA and ICWA affidavits.

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The court may grant the relative custody by abandonment if it is in the best interests of the child. Onceguardianship is granted to the relative, that person has the same rights and responsibilities of a parent, exceptthat guardian cannot consent to the adoption of the child.

The statute provides for modification of the custody by abandonment. If the child is under the age of two andhas been abandoned for at least six months, or if over two years of age and has been abandoned for twelveout of the last fourteen months, may not be reclaimed by the parent except by court order or the voluntaryrelease of the child by the qualified relative. In determining whether the child shall be returned to the parentsthe court is required by the statute to consider the duration of the abandonment and the amount of integration bythe child into the qualified relative's home; the preference of the child if of sufficient maturity to express apreference; the mental and physical health of the minor; any other factor deemed necessary by the court.

The child is required to stay with the relative during the proceeding to modify the guardianship, unless the bestinterests of the minor require otherwise. In effectuating any modification, the trial court may provide for atransitional period for the return. The guardianship ceases automatically upon the minor obtaining majority or age19 if a full time student; the minor marrying; or the voluntary relinquishment of the child by the relative.

Another section of the bill provides that when a relative has obtained custody through the abandonment of thechild, no report to DHS is necessary.

This bill presents a large number of interpretive problems concerning the relationship between thisprovision and 43 O.S. §112.5:

1. Since this is an amendment to the guardianship statutes, it seems to follow that a petition to establish theguardianship and obtain custody should be filed in the probate division of the district court. However, custodycan be awarded to a third party if the parent has abandoned the child under 43 O.S. §112.5. That proceedingcould be filed in the divorce action, S.W. v. Duncan 2001 OK39, 24 P.3d 846, or as a separate proceedingin the family division of the district court.

2. A proceeding for custody by abandonment under the guardianship statutes can only be brought by aqualified relative. However, a proceeding under §112.5 can be brought by any person who is given standingunder that statute.

3. The standards for abandonment are the generally the same between the two proceedings since bothstatutes refer to the definition in the Children's Code. However, the guardianship provision contains a furtherrequirement that the child be living with the qualified relative or that the parent has refused to regain the childafter receiving a written request from the relative. Under §112.5 the abandonment must be proven by clearand convincing evidence. No such burden exists under this bill which requires only that the guardianship isnecessary and convenient.

4. Modification of a third-party custody decree under §112.5 can occur only if the standard of Gibbons v.Gibbons, 1968 OK 77,442 P.2d 482 is met, unless the third-party custody is specifically denominated in thedecree as temporary. In which case custody can be returned to the parent upon a showing that the conditionswhich lead to the third-party custody have been corrected. However, in the case of custody by abandonmentmodification is based on a best interests standard with specific factors for the court to consider.

5. The new provisions of the guardianship statutes provide that the custody by abandonment ends when,among other factors, the guardian voluntarily returns the child to the parent. However, if the child is abandoned,it seems to follow that the parent is unfit. In other third party custody cases the Supreme Court has held that anunfit parent does not regain fitness by agreement of the parties, or by implication. Murrell v. Cox, 2009 OK 93,226 P.3d 692.

6. There is nothing in the new statute which requires a relative who seeks custody of the child to proceedthrough the custody by abandonment statutes. The relative could proceed under 43 O.S. §112.5. Although itwould be easier for the relative to obtain custody under the new statutes, it would also be easier for a parentto regain custody under these provisions.

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It is unfortunate that the legislature has authorized two separate procedures, which have different substantiveprovisions, to deal with the same problem. This undoubtedly means that litigants and lawyers will have to weightcarefully to advantages and disadvantages of the two proceedings before deciding which one to utilize.Immediately Effective

Custody Procedure: Emergency Custody Motions. SB 2235.

This bill adds section 107.4 to title 43. This section provides that a motion for an emergency custody hearingshall include an independent report including, but not limited to, a policy report or a report from DHS thatdemonstrates that the child is in surroundings which endanger the safety of the child and that if such conditionscontinue, the child would likely be subject to irreparable harm. If no report is available the motion must includean affidavit from an individual with personal knowledge that indicates that such conditions exist.

After receiving the motion the court must hold a hearing within 72 hours. If the court fails to do so, the movantmay present the motion to the presiding judge of the judiciary district who shall conduct a hearing within 24hours.

If a court finds that any of the information presented upon which the judge relied in making the emergencycustody determination is false, the court shall assess against the movant all costs, attorney fees and otherexpenses incurred as a result of the emergency custody hearing. The amount shall be paid within 30 daysand is punishable by contempt. Effective November 1.

PARENTING COORDINATORS: QUALIFICATIONS. SB 2235

This bill adds subsection B to 43 O.S. §120.6. It requires that to be qualified as a parenting coordinator theperson must have a master’s degree in a mental health or behavioral health field, have training in family lawmediation and be a certified family law mediator under the laws of this state. Alternatively, the parentingcoordinator must be a licensed mental health professional or a licensed attorney practicing in an area relatedto families. However, each judicial district may establish its own rules so long as they do not require additionalqualifications to those set out in the statute. Effective November 1.

GRANDPARENT VISITATION; THIRD-PARTY CUSTODYMODIFICATION

Murrell v. Cox, 2009 OK 93, 226 P.3d 692

This is the end product of a long and protracted third-party custody proceedings and illustrates that bothlawyers and judges should be diligent in resolving these cases. The facts are, as often happens in these cases,very lengthy, but necessary to an understanding of the Supreme Court's concern. The child was born out ofwedlock when the mother was eighteen and the father was twenty. For the first six months of his life the childand the parents lived with the paternal grandparents. The parents then moved to an apartment. When theparents separated, the father moved back to his parent's home and the mother continued to live in theapartment. On October 10, 2006, when the child was nineteen months old, the grandparents petitioned fortemporary custody and appointment as co-guardians of the child. The father consented to the guardianship. Ahearing was held and the trial court determined the mother to be unfit on November 7, 2006. A plan was putinto effect which, upon completion, would supposedly allow the mother to regain custody of the child.

In January 2007, the mother's motion to terminate the guardianship was denied. Although the trial court madeno findings of concerning fitness, it commended the mother on her progress. In October, 2007, the father fileda motion for custody of the child. The mother filed again to terminate the guardianship. The trial courtconsolidated the two actions. In December, 2007, the father filed a motion for emergency custody, allegingthe mother had abused the child. A DHS report dated February 1, 2008, found that no abuse had beensubstantiated. It recommended parenting class’s specific to parenting children from divorce and/or custodydisputes for all the parties and counseling from an objective counselor not connected to either family. In the

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meantime, the guardian ad litem report was filed on January 14, 2008. It found that both parents were fit andthat the guardianship should be terminated immediately. The report further recommended that custody beawarded to the mother with alternating weekly visitation for the father. The trial court then denied the father'smotion in March, 2008. The mother's motion to terminate the guardianship was repeatedly continued untilOctober, 2008. During this time another abuse report was filed with DHS, which again reported that it wasunable to substantiate any abuse. Ultimately at the October, 2008, hearing the grandparents and the parentsagreed to terminate the guardianship. There was an agreement to joint custody, alternating weekly betweenthe parents, following a three-month transition period during which each parent would have alternating custodyfor two days of each week. The trial court ordered family counseling to occur at least once a week. The trialcourt made no finding as to the fitness of either parent.

Later that month, the father committed suicide. The grandparents then filed a motion for emergency custody.The trial court noted that legal custody became vested solely in the mother upon the father's death but deniedher request for immediate physical custody of the child. Instead, the trial court enforced the "transition period" as"temporary grandparental visitation." A further hearing was set for January 13, 2009. The court at that time heldan evidentiary hearing and received evidence on the issue of whether the grandparents had demonstrated thestatutory criteria for court-ordered grandparent visitation. The grandparents offered expert testimony from aclinical social worker who had been counseling the child at their request following the father's suicide. Thecounselor testified that the "goal of the child's therapy" was to "resolve the grieving for his biological father." Sheopined that a transition period should not begin until the child completed the process of grieving. She could notoffer any guidance as to when that might occur. The counselor also objected to any change in custody orvisitation until the grieving process was completed. The trial court again made no finding concerning themother's fitness. Ultimately the arrangement ordered by the trial court was that the grandparents were to havefive days of "visitation" per week, even though the mother was the legal custodian of the child due to the father'sdeath. This physical arrangement was still in existence at the time of the Supreme Court's ruling.

In September, 2009, the mother attempted to enroll the child in a pre-kindergarten program. The grandparentobjected and another court proceeding followed. Again, the grandparents' expert appeared and opined that thechild's physical arrangements should not be altered until the child had completed the grieving process, whichapparently had not yet occurred. Again, the counselor would offer no estimate as to when that might occur. Thetrial court never determined whether the mother was entitled to physical custody, only that she was the sole legalcustodian and determined that "it [was] not in the best interests of [the] minor child to proceed with [reunificationat a] pace not recommended by [the] professional counselor." The mother brought an original petition formandamus in the Supreme Court.

The Supreme Court granted the mother's writ. It briefly set out the law on third-party custody and grandparentvisitation. In found that when the parties agreed to terminate the guardianship it was necessary for the courtto make a determination of the mother's fitness. It held that the best interests of the child required that such adetermination be made on the record prior to the award of joint custody to the parents. An unfit parent, the courtsaid, does not regain fitness by agreement of the parties, or by implication. An evidentiary hearing to determinefitness is apparently required. If the mother had been determined to be fit at that time, she would have beenentitled to all the rights of a parent including physical custody following a reasonable transition period. If the trialcourt had determined that the mother remained unfit, she would not have been entitled to legal or physicalcustody until such time as she demonstrated fitness.

The trial court's error in failing to make the threshold determination of the mother’s fitness at the time when theguardianship was terminated by agreement was compounded by the trial court's order granting "visitation" to thegrandparents. The trial court's order at that point awarded legal custody to the mother and physical custody tothe grandparents until such time as the child's counselor, and expert witness for the grandparents, determinedthat the child had completed the grieving process so that a transition period could begin. In effect, the counselorwas delegated the task of determining when, if ever, the mother could obtain physical custody of her child.

The court held that absent a determination of the mother's continued unfitness, the trial court was duty bound totransition the child into the mother's physical custody. Instead, the trial court exceeded its statutory directive thatgrandparent visitation be "reasonable" by in effect awarding physical custody the grandparents. Five days perweek of "visitation," the court said, is a custody determination, not a determination of reasonable grandparent

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visitation. Thus, the court noted, what began with the intention of protecting the best interests of the child hadbecome a de facto guardianship with no end in sight:

The trial court's assurances of the child's eventual reunification with Mother have lost credibilitywith the significant passage of time in which the sole legal custodian of the child has beendeprived of custody and the ability to make decisions concerning his care and education. Con-cerns for the child's separation anxiety and the fact that he will continue to grieve the loss ofFather cannot justify the continuing deprivation of Mother's fundamental right to the care andcustody of her child if she has regained fitness.

On the Supreme Court's own motion, the case was remanded to be heard by a different trial judge. The newlyassigned judge was directed to hold an expedited hearing and make determinations regarding the followingissues: (1) Mother's present fitness; (2) if Mother is determined to be fit, a reasonable judicially establishedperiod for transition of the child into Mother's home; (3) Paternal Grandparents' right to reasonable visitationpursuant to section 109.4 of title 43; and (4) if the statutory criteria for grandparent visitation are demonstrated,a reasonable visitation schedule. All the justices concurred.

PROCEDURE FOR ELICITING THE CHILD'S PREFERENCE

NEW SUPREME COURT RULE

Ynclan v. Woodward, 2010 OK 29, P.3d

This is an important decision setting out the procedures for in camera interviews of children in custody andvisitation disputes. In the parties' divorce and custody litigation, the trial court interviewed three of the children inchambers without counsel or the parents being present. However, a court reporter was present to take notes.According to the father, after the interview, he promptly made an informal request for the transcript of thechildren's interviews and tendered his cost deposit. This request was denied and at the conclusion of the trial,the court granted the divorce and awarded the mother custody of the children. The father filed a formal motionto review the transcripts of the children's conversation with the trial court, which was denied. He then filed a writof mandamus with the Supreme Court. He did not appeal the trial court's custody determination. The courtdenied writ but set out procedures to be followed with regard to eliciting the child's preference, and with regardto when a transcript should be provided to the parents of the child's interview with the trial court.

The court noted that the procedure of a trial judge conducting a private, in camera interview with a child hasbeen widely used as a means of discovering the child's custodial preference. It then further found that thepurposes of conducting an interview in private, rather than in open court in the presence of the parents include:

1) elimination of the harm a child might suffer from exposure to examination and cross-examination andthe adversarial nature of the proceedings generally;2) reduction of added pressure to a child to an already stressful situation;3) enhancement of the child's ability to be forthcoming;4) reduction of the child's feeling of disloyalty toward a parent or to openly choose sides;5) minimization of the emotional trauma affecting the child, by lessening the ordeal for the child;6) protection of the child from the tug and pull of competing custodial interests; and7) awarding custody without placing the child in an adverse position between the parents.

This means that the purpose of such a hearing is not to lessen the ordeal for the parents, but, rather, to lessenthe ordeal for the child. However, it is not intended to make a secret of the basis for the court's findings. Thepreference of the child is only one of many factors to be considered when determining the child's best interestand, according to the court, it should never be the only basis for determining custody. The court also noted thata child should not be directly asked where the child would rather live because specifically asking for a

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preference provides an opportunity for parental manipulation or intimidation of the child as well as an opportunityfor the child to manipulate the parents. Rather, the trial court should conduct such an interview so as to discernthe child's preference, while at the same time, being sensitive to how the child is coping with the divorce, thepressures put on the child by the divorce and as well as to ascertain the motive of the child. When the trial courtdetermines the child's best interest will be served by considering the child's preference, whether to hold suchan interview is generally, the court said, within the trial court's discretion.

The in camera nature of the child's interview creates tension with our adversary system. Thus even thoughthe private nature of the interview may be good for the child, conducting such an interview raises due processand fundamental fairness issues, insofar as the parents are concerned. Therefore a balancing of parental dueprocess rights with the child's right to be heard and the court's interest in hearing the child is required.

The court noted that the applicable statute, 43 O.S. §113 does not directly address this balancing problem.What that statute does do, according to the court, is to:

1) require the court to determine that the best interest of the child will be served by expressingpreference;1) generally give the trial court discretion to consider a child's preference unless if the child is ofsufficient age, twelve according to the statute, in which case the court is required to consider theexpression of preference or other testimony;2) expressly allow counsel to be present, but provides that if the lawyers are not allowed in theinterview, the reasons for their exclusion must be expressly stated by the trial court;4) in no case is the child's preference binding on the court or the only factor the courtshould consider;5) if the child is of sufficient age to form an intelligent preference, and the court does notfollow the child's preference, the court shall make specific findings of fact supporting suchaction if requested by either party; and6) either party may also request that a transcript of the in chamber proceedings bemade.

However, the statutes do not address whether or if the party is entitled to access of the transcript.

The court then held that, in order to provide a proper balance of parental due process rights with the child'sright to be heard, it would adopt the following guidelines for trial courts to utilize when planning to conduct an incamera custodial or visitation child preference interview:

1) If the trial court or the parties consider the possibility of an in camera interview of thechildren, then the trial court, pursuant to 43 O.S. §113, must make and state on the record itspreliminary determinations concerning whether the child's best interest is served by conductingsuch an in camera interview and whether the child is of a sufficient age to form an intelligentpreference;1) If the parents consent to the interview being in chambers, or otherwise waive their ownpresence, the judge may proceed with an in camera interview.2) If one or both parents object to being excluded, the trial court must consider whether theparents want counsel present. This consideration should include whether to allow counsel to bepresent, allow counsel to question the child, or allow counsel to submit questions to be asked.Whether the trial court allows the counsel to participate in the questioning or submit questions iswithin the trial court's discretion. If no objection is made regarding this issue, the parties waiveobjection to the issue on appeal. If the judge proceeds with an in camera interview withoutcounsel present, pursuant to 43 O.S. 2001 §113, the reason for counsel's exclusion must bestated on the record.

The guidelines will apply to all cases, including those already on appeal.

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The court then proceeded to address the question of whether a transcript of the child's interview must beprovided to the parents. The interview occurs in camera because the child is entitled to a degree of privacywhich preserves, so far as possible, the child's "freedom of expression." To render such private statementsmore readily available to the parents than required by the demands of due process would tend to jeopardizethe court's ability to gain a full and frank exposition of a child's preferences and views. Simple common sense,according to the court, suggests that children, who are put in the predicament of being asked their preferencesin a custody battle, will more openly express their views outside the presence of their parents or their attorneys.In the interests of both gaining the best evidence available and protecting the child's right to privacy in suchmatters, the child should be free to speak openly. This is less likely to occur if the child's verbatim comments arereadily available.

In this case the court found that the father, who requested the transcript, did not do so to appeal thecustody determination. Apparently, the father merely wanted to satisfy his own curiosity about what thechildren said in chambers. Accordingly, the court held "that unless a parent or the parents appeal the custodyor visitation determination, due process does not require that either parent have access to the transcript of thein camera interview of the children merely to satisfy their curiosity."

The court then added subsection (f) to Oklahoma Supreme Court Rule 1.33 (e), 12 O.S. 2001 Ch. 15, App.1 as follows:

(f) Access to the Record by Parties or Counsel in Custody/Visitation Disputes.When a parent intends to appeal a custody or visitation determination and the trial court haspreviously held an in camera interview with the child or children, and a transcript of the proceed-ing was taken either by order of the trial court or by request of the parties, the transcript shall beprovided the parties upon request and payment of costs. If no appeal is taken, it is within the trialcourt's discretion whether to allow the parties access to the transcripts.

The court concluded that no statute expressly requires that a parent be provided with a transcript of a trialcourt's in camera interview in a custody/visitation proceeding. When an in camera interview is proposed, dueprocess implications arise and a balancing of parental due process rights with the child's right to be heard andthe court's interest in hearing from the child is required. Because the statutes do not fully resolve this conflict,they set forth the proper procedure for trial courts to utilize when conducting such interviews. If the proceedingis transcribed, the parties will be entitled to access to the transcript only if, a parent or the parents appeal thecustody/visitation determination. Otherwise, whether the transcript remains sealed is within the trial court'sdiscretion. Here, the father did not appeal the award of custody, and he is not required to be given access tothe transcript merely to satisfy his curiosity.

One interesting aspect of the opinion not discussed in depth is the notation by the court that the child'spreference should never be the only basis for determining custody. This appears to contradict several casesfrom the court of civil appeals which have held that a well-thought-out and intelligent preference by a child issufficient by itself to change custody from one parent to another. See e.g., Nazworth v. Nazworth, 1996 OKCIV APP 134, 931 P.2d 86; Nelson v. Nelson, 2004 OK CIV APP 6, 83 P.3d 911. But see Buffalo v.Buffalo, 2009 OK CIV APP 44, 211 P.3d 923. Other cases have held that the trial court does not need tofollow the child's preference if it is not well-thought-out and intelligent. Coget v. Coget, 1998 OK CIV APP 164,966 P.2d 816. Whether these cases from the court of civil appeals are to be considered overruled byimplication will have to await future developments.

7. ORIGINAL CUSTODY; UNFOUNDED ALLEGATIONS OF CHILD ABUSESlate v Chadwick, 2010 OK CIV APP 38, P.3d , cert den, Kauger, dissents.

At the temporary order hearing, the court ordered that the parties' share joint custody of their child. When thechild became eligible for pre-kindergarten the trial court modified the temporary order to place custody with thefather during the week and with the mother on weekends and holidays. Two weeks later the mother filed anapplication for an emergency temporary order and restraining order, alleging the father had abused the childduring his last custody visit which had ended six days earlier. She claimed the child told her that the father hadhit the child on the back of his head, causing the child's head to hit a table which resulted in a cut in his left

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temporal area. By agreement of the parties that same day, the trial court held an in camera hearing with onlythe child and the parties' counsel. After hearing the mother's testimony, the trial court concluded she had notcarried her burden to prove irreparable harm and denied her motion.

One month later the mother filed another application for an emergency order which was consolidated with themerits trial which was held two months after the mother's application. The mother called the secondarycaseworker from the Oklahoma County Office of the Department of Human Services (DHS), to testify abouthis interview with the child at Midwest City Regional Hospital on September 7, 2007. During the investigator'scross-examination, he identified pictures he had taken of the child's facial injuries which the trial court admittedinto evidence, without any objection. The father's witnesses included the primary DHS investigator fromMcClain County who testified she closed the case against the father because she could not confirm any of themother's abuse allegations. The trial court expressly found it was in the child's best interest that the child beplaced in the sole custody of the father and that the mother had made frivolous allegations of child abuse. Themother appealed and the appellate panel affirmed.

The mother argued that the trial court erred by finding that her abuse allegation was frivolous because "therewas evidence to support the allegation especially in light of the child's testimony." Relying on definitions of "childabuse" and "neglect," which 43 O.S. 107.3(C) defines as "harm or threatened harm to a child's health" and"non-accidental physical.. .injury," she claimed "it was undisputed that the child had a scar above his lefteyebrow, a red mark (scratch or abrasion) on his right cheek and multiple bruising (both legs and back) tohis body.

The appellate panel noted that the trial court expressly relied on 43 O.S. 107.3(D) which providesthat:

During any proceeding concerning child custody, should it be determined by the court that a partyhas intentionally made a false or frivolous accusation to the court of child abuse or neglect againstthe other party, the court shall proceed with any or all of the following: 1. Find the accusing partyin contempt for perjury and refer for prosecution;2. Consider the false allegations in determining custody; and3. Award the obligation to pay all court costs and legal expenses encumbered by both partiesarising from the allegations to the accusing party.

The panel determined that by enacting 43 O.S. 107.3(D) the legislature authorized trial courts to penalize, bythe three mandated options, a party's intentionally-made frivolous or false allegations of child abuse against theother party. The purpose was to discourage such allegations in child custody proceedings. Therefore the issuepresented was whether the trial court's factual determination that the mother made a frivolous allegation ofabuse against the father was supported by sufficient evidence.

The trial court found that: (1) the mother made her first allegation of physical abuse almost immediately afterthe court placed primary custody with the father because the child was eligible for pre-kindergarten enrollment;(2) the mother failed to meet the burden of proof in her first application for emergency custody and her secondapplication had strikingly similar allegations; (3) DHS investigated Mother's second application and could notconfirm any of her allegations; (4) the mother asked her stepmother to write a letter about the previous allegedabuse by the father that was primarily based on the mother's assertions, i.e., the stepmother had no personalknowledge about the assertions; and (5) testimony indicated that the mother had made frivolous allegations ofimproper child restraint in the father's vehicle at one of the visitation exchanges.

The panel determined that the mother's brief neither denied nor disputed any of the trial court's findings which,the court of civil appeals noted, directly affected her credibility. Therefore the panel held that it must givedeference to the trial court's determinations as to facts and concluded that the trial court's findings weresupported by sufficient evidence.

The mother also argued that the clear weight of the evidence demonstrated that it was in the child's bestinterest for her to be awarded custody of the child. She argued that she was the child's primary care giver since

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his birth and is a good mother, whereas, she claimed, the evidence established that the Father has a very hottemper and has been violent toward his co-worker and the child.

The appellate panel disagreed. It noted that its review of the entire record found sufficient evidence supportinga contrary conclusion on the issue of the father's temper and violence. More importantly, the panel found, thetrial court heard numerous witnesses testify about the quality of the father's care of the child and the quantity ofattention he gave the child. In contrast, the panel found that the record demonstrated that the mother admittedshe was alone for 2-3 weeks at a time caring for her other two children due to their father's work schedule. Theevidence was undisputed that the father had excellent family backup on a daily basis whereas the mother hadalienated herself from her family. From this evidence alone, the court of civil appeals held, the trial court couldhave reasonably concluded that placing custody with the father was in the child's best interest. Therefore thetrial court's custody determination was affirmed.

RELOCATION: MOVE NOT IN GOOD FAITH; TERMINATION OF JOINT CUSTODY

Galarza v. Galarza, 2010 OK CIV APP 19, 231 P.3d 694, cert.den.

After a trial the court awarded the parties joint custody with the mother designated as the primary custodian.The mother proposed to relocate to San Antonio where her new husband had accepted a position. The fatherobjected to the relocation. By the time the court held a hearing on the father's objection, the mother and thechild had already moved. On cross examination at the hearing on relocation, the mother admitted that hernew husband had been offered the position in San Antonio four months prior to the custody trial. She alsoadmitted that she had not informed the court of that fact during the trial. Based on the mother's admissions, thetrial court ruled that she had failed to meet her burden of proving the proposed relocation was in good faith. Itreasoned the issues related to joint custody and shared parenting "consumed a majority of our time and effortsin the course of this trial," and the parties' presentations and the trial court's ruling would have been different hadthe mother "been forthright regarding her intentions to move to San Antonio." The trial court concluded: "A greatdeal of previous time of the court and of all concerned was literally wasted during the hearing on the merits ofthe custody and visitation issues because the petitioner withheld vital information.”Before the Court at this pointin time, is one finite issue, is the proposed relocation of the child made in good faith. This is not a close call.The petitioner fails to satisfy her burden of proof that the proposed relocation is in good faith. With all duerespect, if this is not bad faith, I don't know what is. Objection sustained. Permission to relocate denied."

One month after the court's ruling on relocation, the father moved to terminate the joint custody arrangementand be awarded sole custody on the grounds that the mother had withheld information at the custody trialregarding her intent to relocate, systematically withheld information about the child, regularly interfered with thefather's visitation, was attempting to alienate the child from him, and would not communicate with him about thechild. The trial court terminated joint custody, finding the joint custody was not working and was not serving thechild's bests interests. It awarded sole custody to the father. The mother appealed both the relocation andchange of custody decisions and the appellate panel affirmed.

The Court of Civil Appeals found that the trial court properly applied the relocation statute in requiring themother to bear the burden of showing the proposed relocation was in good faith. The appropriate inquiry waswhether the mother established she had an honest intention to abstain from taking any unconscionableadvantage of the father with regard to the child's custody, even through legal means, and whether she had anyinformation or belief which would render her actions unconscionable.

The trial court's finding that the mother did not make her proposed relocation in good faith was, according tothe panel, supported by her own testimony that she entered into a joint custody agreement while withholdinginformation that she intended to move. The father entered into the joint custody agreement and the courtapproved it, believing she intended to conduct herself as a joint custodian and to continue living in OklahomaCounty. That the mother knew otherwise and deliberately withheld that information, revealing her true intentonly after obtaining the father's agreement and the court's approval, was unconscionable. Therefore, the panelheld that the trial court did not err in denying the mother's request to relocate based on her failure to show goodfaith.

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With regard to the termination of joint custody and the award of custody to the father, the panel found that thetrial court appropriately applied the test of Daniel v. Daniel, 2001 OK 117,42 P.3d 863, which held that:

A change in custody from joint to one parent differs from a change in custody from a onecustodial parent to a non-custodial parent. Joint custody will not succeed without thecooperation of the parties. When it becomes apparent to the court that joint custody isnot working and it is not serving the child's best interests, then a material and substantialchange of circumstance has occurred and the joint custody arrangement must bevacated. In this case it was clear, according to the panel, that joint custody was not working.

An award of custody after the termination of joint custody is decided on the basis of the best interest's standard.In cases applying this standard the appellate panel regularly affirms the trial court and did so in this case. Thepanel merely noted that the trial court's finding that the best interests of the child were served by awardingcustody to the father was well supported by the record, especially the report of the guardian ad litem.

CHILD SUPPORT AND PARENTAGE

JURISDICTION; UIFSA

Powers v. District Court, 2009 OK 91, 227 P.3d 1060

This is a long and complicated opinion concerning personal jurisdiction over an absent husband for childsupport and the procedure that should be utilized to attack personal jurisdiction. The parties resided Missouri.The wife moved to Oklahoma and a few days later filed an action seeking legal separation, alimony, childsupport, child custody and attorney's fees. Two days later the husband filed an action for divorce in Missouri.The husband was served with process in the Oklahoma proceeding but did not answer or otherwise pleadwithin the time allowed by 12 O.S. § 2012, and 12 O.S.2001 §§ 2026, 2027, and District Court Rule 2.3. Thewife, with notice to Husband, filed a motion for default judgment. After the time to answer or otherwise plead,the husband filed a special appearance with a motion to dismiss challenging in personam jurisdiction. The trialcourt held one hearing, without adjudicating the motion to dismiss, and allowed the wife time to amend herpetition. The court then held a hearing, determined the husband was in default, declined to consider the motionto dismiss, took evidence on the issue of temporary support, and issued an order for temporary support. Thehusband then filed a motion to vacate the temporary support order and requested that the trial court considerhis motion to dismiss.

The Supreme Court determined that the husband's special appearance and motion to dismiss filed after histime to answer or otherwise plead without leave of court is a nullity and of no effect. Husband's untimely motionto dismiss and special appearance filed without leave of court was not an appearance, but the filing did notwaive in personam jurisdiction. Husband's failure to answer or otherwise plead within the time allowed by thePleading Code resulted in a default "judgment" for temporary child support, but did not waive his in personamjurisdiction defense.

The husband filed for a writ of prohibition to prevent the trial court from enforcing the "default judgment" andproceeding further. The Supreme Court noted that this proceeding is not an appeal, but rather an independentproceeding challenging the authority of the trial court. It found that the record provided by the husband in thisproceeding was insufficient to grant the write of prohibition. The record as presented to the Supreme Courtincluded the trial court docket which showed that the wife filed a response to the motion to vacate. But thatresponse was not included in the writ proceeding. The husband did not refer to the wife's affidavits; he did notfile in a narrative statement, signed by the trial judge, of the hearing on the motion to vacate, or a transcript ofthe hearing on the motion to vacate, or an affidavit by counsel stating the claims by the parties made on themotion to vacate and response, or an affidavit stating the nature of the adjudication by the trial court on themotion to vacate. The trial court's journal entry indicated that a motion to vacate was adjudicated, but the recordin the writ proceeding did not show what claims were actually adjudicated. Therefore, the Supreme Court held

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that no conclusion may be reached whether (1) the trial court considered the temporary support order as anintermediate order not subject to review or (2) if the trial court disregarded ruled on the merits of husband'sjurisdictional defense based upon the wife's affidavits. Therefore, the record before the court in this proceedingwas insufficient to show that the District Court was proceeding without in personam jurisdiction of the husbandand the husband's burden for showing the requisite elements for prohibition was not been satisfied.

In the meantime, the wife filed a second divorce proceeding. This time the husband filed a specialappearance and motion to dismiss for lack of in personam jurisdiction. The trial court's ruling stated thatOklahoma was the "home state" of the child and that a Missouri court had agreed that the divorce as well ascustody and support issues should be decided in Oklahoma. The trial court also ruled that Taylor v. Taylor,1985 OK CIV APP 26, 709 P.2d 707 (released for publication by order of the Court of Civil Appeals), gave itjurisdiction to determine the request for divorce and child custody, and indicated that the Missouri court's ordersdirecting Husband to litigate the divorce, custody, and support issues in Oklahoma provided a separatejurisdictional basis. Husband sought prohibition in this case also.

The Supreme Court found that case law supported the proposition that when a plaintiff’s petition invokes acourt's long-arm jurisdiction, a defendant may use a timely motion to dismiss to challenge the facial sufficiency ofthe petition's allegations and assert that they fail to give fair notice of the factual basis for long-arm jurisdiction.A defendant may use a timely motion to dismiss with attached affidavits to challenge the petition by raising factsnot of record on the face of the petition, and a plaintiff may respond to the motion with affidavits in support of thein personam jurisdiction. However, in this case the husband's pleadings only challenged the facial sufficiency ofthe petition and did not raise any extra-record fact by affidavit, pleading, or form of evidence. Therefore this isnot a case where, after an evidentiary hearing, the trial court found facts sufficient to support personaljurisdiction. It is only a case that determines whether the plaintiff’s petition alleged sufficient information towithstand a motion to dismiss.

In determining whether the petition presented sufficient information to withstand the motion to dismiss, theSupreme Court noted that the prohibition issue before them as pled in the trial court and briefed by the partieschallenged the facial sufficiency of pleadings apart from the effect of the any order from the Missouri court, andalso apart from any evidence the parties may or may not present at some future time in the trial court, and apartfrom the application of Taylor or any other matrimonial case which separates claims for the basis of in personamjurisdiction analysis.

The court then noted that the leading case on determining in personam jurisdiction in child support cases isKulko v. California, 436 U.S. 84 (1978). The non-resident defendant must have minimum contacts with theforum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.The husband relied on the fact of his physical presence in Missouri. He also relies upon Kulko for theproposition that it would be unfair for him to defend his divorce and support obligations in Oklahoma. The wifefocused on the husband's activities in Missouri that, according to her forced or directed her to move toOklahoma. She tried to distinguish Kulko on the ground that her presence in Oklahoma did not result from herunilateral conduct and the husband's mere acquiescence, but from purposeful conduct by the husband.

The court agreed that the mere acquiescence of the husband to the wife's presence in Oklahoma would notsupport personal jurisdiction here, any more than it did in Kulko. However, the court noted that the wife reliedon 43 O.S. §601-201 (UIFSA) that a basis for the exercise of personal jurisdiction over the defendant is thatthe child resides in the state as a result of the acts or directives of the husband. The mother also urged thecourt to adopt the reasoning of Marriage of Malwitz, 99 P.3d 56, 58-59 (Colo. 2004), where that court heldthat:

Accepting the trial court's factual findings regarding the Defendant's abuse and harassment ofMalwitz, we find that the Defendant's actions were sufficient to constitute "acts or directives" thatcaused Malwitz to flee Texas for Colorado within the meaning of section 14-5-201(5). We furtherfind that, under these circumstances, the exercise of personal jurisdiction over the Defendant isconsistent with due process. We therefore hold that the trial court had personal jurisdiction overthe Defendant for purposes of entering a child support order. In Malwitz, the acts of domesticabuse occurred in Texas. The Colorado Supreme Court found that the abusive husband knew

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that the wife's only family ties were in Colorado, and that the husband should have foreseen thatthe abused wife would flee to the protection of her family. The court also noted that very little timepassed between the harassment and abuse and the subsequent relocation of the spouse fromTexas to Colorado. Threats of abuse and harassment, the foreseeability on the part of theabusing spouse that the abused spouse would flee to her family for support and a place to live,and the timeliness of the move to Colorado in relation to the abuse were factors to be found tobe determinative by the Colorado court.

In this case the court found that the verified and uncontested allegations in wife's pleadings were that thehusband refused to let the wife stay in their marital home in Missouri with their four-month-old child. Additionally,that wife, with no economic means, had no choice but to move with their child into her parents' home inOklahoma, and that the husband knew that this was her only available choice for economic support and a placeto live with the assistance of her parents. She also alleged being fearful of Husband due to his verbal abuse,threats against her person, his erratic behavior, including D.U.I, arrests, alcoholism, an instance of his breakinga locked door to gain access to her, and an instance of his falling down stairs while carrying a child. She allegedthat before moving to Oklahoma she would lock herself in a room in their home for her personal safety. Theseallegations did not, however, and allege that the husband expressly directed Wife to bring her divorce, custody,and support action in Oklahoma, or that Husband expressly agreed to Oklahoma as a forum for the divorce.There were also no allegations that the nature of the alleged abuse prevented her from seeking divorce,custody, or support in Missouri. However, the wife did allege that the husband caused her to leave the maritalhome by refusing to allow her and the child to stay in the home. Her allegation is essentially that she was giventhe choice of no place to live in Missouri, with no economic support in Missouri where she could file for a divorceas a Missouri resident, or the choice of moving with her child to Oklahoma to reside with her parents.

The court held that acts of child and spouse abuse in one state are insufficient, by themselves, to create inpersonam jurisdiction over a non-resident spouse in a different state. However, it did agree with the SupremeCourt of Colorado that circumstances may provide the facts necessary to show that an abusive spouse ispurposefully availing himself or herself of conducting activity in the forum state by directing and controlling wherethe abused spouse and child reside. In this case wife alleged the husband directed and controlled the locationof residence as the result of his physical abuse, that this location is the result of his complete and abrupt failureof both spousal and child economic support in both the state of residence and the state to which he directed andcompelled them to move their residence, and that he was aware that his lack of support required this specificchange in residence.

Notice pleading did not require the wife to allege in a petition every alleged fact that could be used to supporther argument that the husband directed her to move to Oklahoma. Given the procedural posture of the case,the court noted that it was not concerned with the sufficiency of the evidence to support the wife's jurisdictionalarguments, but whether the District Court was correct that the wife satisfied her pleading burden, according tothe record presented to the court in the prohibition proceeding Whether the wife's allegations are indeed thefacts present in the cases is an issue that must be resolved by the district court.

The court therefore concluded that allegations of spousal/child physical abuse and intentional spousal failureof economic support combined with allegations of a non-resident's spouse's agreement and purposeful conductfor the location of the residence of the other spouse and their child may be used pursuant to 43 O.S. §601-201 to show in personam jurisdiction over a non-resident spouse/parent that is consistent with dueprocess of law. The trial court was directed to conduct a hearing to determine whether the contest facts wouldjustify in personam jurisdiction.

It is important not to read this case too broadly. All that this case holds is that the wife satisfied her pleadingburden with regard to personal jurisdiction. Whether the trial court actually has personal jurisdiction will not bedetermined until the evidentiary hearing to be held upon remand.

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EQUITABLE DEFENSES ARE ALIVE AND WELL

Cope v. Cope, 2010 OK CIVAPP 32, P.3d cert den., Taylor, dissents.

The parties had two children, and divorced in 1988. The mother was awarded custody, and the father wasordered to pay child support. On March 1, 2005, the mother filed a motion to modify child support, a requestfor a wage assignment, a request for a recalculation of child support and a reinstatement of a previous wageassignment. The father's defense was that the mother had agreed to waive his payment of child support inreturn for the father not exercising his visitation. He also argued that it would be inequitable to grant the motherchild support after such a long period of time has passed and after his right to visitation is no longer enforceablebecause his children are now adults. Both parties filed motions for summary judgment. The trial court found theagreement invalid and granted the mother's motion. The appellate panel reversed.

The court noted that the supreme court in State Department of Human Services exrel. KA.G. v. T.D.G., 1993OK 126, 861 P.2d 990, the Oklahoma Department of Human Services (DHS) filed an action to establish thepaternity of a minor child born out of wedlock, and to order the payment of child support by the putative father.The father, in that case, filed a motion to dismiss based upon a 1979 written agreement with the motherwhereby he released any visitation or other rights to the child in exchange for the mother's agreement to neverfile a paternity action or seek child support from him. The trial court granted a dismissal, but the supreme courtreversed, stating: "Public policy prohibits a parent's contracting away a child's right to support. A contractattempting permanently to deprive a child of support is void as against public policy. Such an agreement doesnot prevent Human Services from bringing a paternity action and establishing support obligations..."

The panels of the court of civil appeals extended that holding to all cases where the mother sought to contractaway her own right to receive child support. See Hensley v. Hensley, 2000 OK CIV APP 34, 1 P.3d 446;Martin v. Brock, 2001 OK CIV APP 145, 55 P.3d 1095.

However, the panel noted that in Hedges v. Hedges, 2002 OK 92, 66 P.3d 364, the Supreme Court foundthat parents can modify past-due and unpaid installments by agreement, although future support is subject onlyto prospective modification by the court. However, in that case, the appellate panel thought the Supreme Courtremanded the case to determine a factual dispute concerning the father's claim of estoppel. In this case thepanel determined that the facts were similar. It found that the agreement by the mother to relinquish future childsupport was unenforceable. However, it was error to grant summary judgment without considering the father'sestoppel defense.

It defined estoppel as a representation made, or a position assumed, where otherwise inequitable conse-quences would result to another, who has in good faith, relied upon that representation or position. It noted herethe father had refrained from exercising visitation and that, given that the children are now adults, he can neverregain that contact with his children. The court found that it would be inequitable to allow the mother to collectchild support which was unpaid as a direct result of her representations and actions. It held that equitableestoppel barred the mother's claim and directed the trial court to enter summary judgment for the father.

Judge Rapp specially concurred indicating that he would enforce the contract instead of utilizing equitabledefenses.

Unfortunately the court misinterpreted the Hedges case. Estoppel was not an issue in Hedges. The issuein Hedges was the father's defense of laches. The court found that defense was inapplicable because thefather's failure to pay the support in reliance on an alleged agreement did not demonstrate the type of prejudicerequired for laches to be applicable. It only indicated that he owed more money. Contrary to the panel'sassertion that the case was remanded in Hedges to determine the father's estoppel defense, the case wasactually remanded to determine if the parents actually had an agreement and if so, the date of the agreement,since the agreement could waive past support but not future support.

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SOCIAL SECURITY DISABILITY BENEFITSDepartment of Human Services v. Austin 2010 OK CIV APP 52, P.3d

The parties are not married and have one child. The father paid child support pursuant to an agreementbetween the parties for a number of years. In 2007, Mother sought reimbursement of reasonable child supportexpenses for the time period of June 2002 through December 2007, by filing an action for child supportenforcement with the Department of Human Services (DHS). After an administrative hearing, an order wasentered in December 2007, which noted that the father was disabled, that the "child is receiving $752.00 fromFather's Social Security in lieu of child support" and the "Social Security benefit exceeds guidelines amount."The Administrative Law Judge determined that the father was not obligated to pay any monthly child supportbeginning January 1, 2008 and also determined that he was not obligated for past support for the period fromJune 2002 through December 2007. The order referenced the fact that "Mother received lump sum award fromthe Social Security Administration that exceeds judgment amount."

In April 2008, the father filed a motion for reimbursement of overpayment of child support. He argued that afterhe suffered a stroke in August 2005 (and became totally disabled), he continued to make child supportpayments to Mother in accordance with their agreement. The Social Security Administration (SSA) beganpaying monthly benefits to the child in February 2006. The first SSA payment to the child was in the amountof $14,800, which the SSA provided the child was "due through September 2007." Thereafter, the SSA benefitpaid to the child was $752.00 per month. The father argued that equity entitled him to a credit for the childsupport payments he made from February 2006 (when the child began receiving the SSA benefits) throughSeptember 2007 to prevent Mother from "double dipping" or profiting from the "SSA Repayment of Child SupportOver Pay windfall" The trial court denied the father's motion and the appellate panel affirmed.

The panel noted that trial courts have discretion to consider social security payments as a credit against anobligor's child support obligation, Nibs v. Nibs, 1981 OK 25, 625 P.2d 1256, and that there is no Oklahoma lawrequiring a credit to a payor spouse for payment of child support in excess of a court-ordered obligation. Seee.g., Hollingsworth v. Underbill, 2001 OK CIV APP 87, 7, 27 P.3d at 1035. Sometimes, as in theHollingsworth case, special equitable circumstances (such as custodial parent's unjust enrichment) may justifya court crediting voluntary child support payments; the burden of proof is on the obligor to establish the right toequitable relief. In the absence of a child support order, voluntary payments made in satisfaction or partialsatisfaction of the common law duty to support are generally not offset against the court ordered support.

The record showed that after DHS calculated actual income of the parties, an arrearage was determinedagainst the father, which he does not dispute. His child support obligation was determined to be $0 due to thesocial security benefits the child was receiving. Further, the administrative order expressly noted that the father'schild support obligation (both for past due amounts owed and for future payments) was determined consideringthe social security benefits received by the child. Thus, he was actually afforded the credit for social securitybenefits received by the child in DHS's determination of his support obligation. The child support obligation wasdetermined to be completely satisfied by way of the credit afforded to the father for the social security paymentsmade on his behalf. He therefore did not prove equity entitled him to additional credit by reimbursement forchild support payments he voluntarily made during the relevant time period of the child's receipt of social securitybenefits. Therefore the trial court correctly exercised its discretion in denying the father's motion.

An additional rationale for upholding the trial court's determination is that prior to the administrative hearing therewas no judgment requiring the father to pay support. There was only an agreement between the parties. Childsupport cannot be modified retroactively and therefore the trial court was without authority to retroactively awardthe father credit for any alleged overpayments.

TERMINATION OF SUPPORT WITH MULTIPLE CHILDRENWard v. Ward, 2010 OK CIV APP 13,231 P.3d 733

The parties divorce decree awarded the mother custody of the three children and required the father to pay$1750 as "reasonable" child support until the age of majority or until further order of the court. When the oldestchild graduated from high school in May 2002, the father reduced his child support payment to $1,200 permonth and further reduced his child support payment to $600 per month beginning in June 2004 after the next

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oldest child graduated. In late 2006, the mother contacted the Department of Human Services to obtainassistance in collecting unpaid child support. Soon thereafter, the father filed a motion to modify requesting thathis child support be reduced because his two oldest children had reached majority and graduated from highschool. The mother responded by filing an application for a contempt citation, alleging that he had failed to paymore than $50,000 in child support, medical bills and insurance. He denied that he was in contempt, assertingthat he had a right to reduce child support, and, in any event, the mother's actions were barred by laches.

The trial court found that the support order was not automatically reduced as each of the children reachedmajority. It sustained the father's motion to modify and set support at $1002.80 for the remaining child. The trialcourt also found the father in contempt but deferred sentencing and required him to submit a plan pay off thearrearages. The father appealed.

The first question the court faced was whether the appeal was premature since the court deferred sentencingfor the contempt. Generally, a contempt order which defers sentencing is not an appealable order. First Nat'lBank & Trust Co. of Ada v. Aries, 1991 OK 78, 816 P.2d 537. However, in that case, the court held thatbecause the appellant sought relief from a ruling prohibiting enforcement of a trial court order, it would recast theappeal as an original proceeding seeking a writ of prohibition. The Court of Civil Appeals has the same power.See 20 O.S. §30.1. Therefore the appellate panel recast the proceedings as one seeking a writ of prohibitionand, by denying the writ, affirmed the trial court.

When the parties divorced the Child Support Guidelines provided that:

A child support order shall not be construed to be a per child order unless specified by thedistrict or administrative court in the order. Child support is not automatically modified in a childsupport order which provides for more than one child when one of those children reachesmajority or is not otherwise entitled to support pursuant to the support order; however, suchcircumstance shall constitute a material change in circumstances. See 43 O.S. §118(E) (16)(c) [now found at 43 O.S. §1181(C)].

This section, according to the panel, clearly indicates that child support is not automatically modified as eachchild reaches majority. A parent who is paying child support for multiple children may not unilaterally reduce hisor her child support payment as each child reaches majority, unless the divorce decree so provides. Thereforea party seeking to reduce child support because one or more of the children have reached majority mustrequest a modification hearing. Note that the current provision provides that child support ceases automaticallywhen the last child ages out. This provision was not in the previous version.

The reasons for not allowing a per child reduction are:

1. A child support award for multiple children cannot be reduced on a per child basis when a child reachesmajority because the guidelines do not calculate child support for multiple children as a multiple of the guidelineamount for one child. Therefore, a child support award for three children cannot be reduced by one-third whenone of the children reaches majority.1. Every modification of child support must be based upon the parents' income at the time modification issought. In this case the trial court's modification order set the father's child support obligation at $1,002.80, anamount far greater than one-third of the original decree amount.1. Every modification is within the sound discretion of the trial court. The fact that a child has reached majorityis simply one factor, although a compelling one, which the trial court must consider in granting or denyingmodification and in setting the amount of an award. See Kerby v. Kerby, 2002 OK 91, 60 P.3d 1038.

Father also argues that the provision regarding per child reductions in §118 is subject to, former subsection §118(E) (21) [now found at §118D (F)], which provides that:

The court, to the extent reasonably possible, shall make provision in an order for prospectiveadjustment of support to address any foreseen changes including, but not limited to, changesin medical insurance, child care expenses, medical expenses, [and] extraordinary costs....

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This section, he argued, indicates that aging out is a foreseen change that should have beenprovided for in the decree and therefore should be implicitly assumed to be part of the decree.

The appellate panel disagreed. It noted that statutes should be harmonized whenever possible. It found thatthe only reasonable construction of the statutes is that the term "foreseen changes" in the old §118(E) (21)does not include a child reaching majority, a circumstance specifically addressed by former §118(19) and§118(E) (16) (c).

Given that in most cases, as in this one, income will have changed between the time of the original childsupport order and the modification, the panel's construction is the only reasonable one.

The court also rejected the father's laches argument because the record did not show (1) that the motherunreasonably delayed the commencement of proceedings to enforce the claim, and (2) that the father wasmaterially prejudiced by this delay. See the discussion in Hedges v. Hedges, 2002 OK 92, 66 P.3d 364.

PATERNITYOklahoma ex rel Department of Human Services v. Sweet, 2010 OK CIV APP ____; P.3d , cert. den.

In March 2005, a child was born to mother. Two or three days later, Sweet and the mother signed anAcknowledgment of Paternity. The Oklahoma Department of Human Services (DHS) received the form onMarch 18, 2005. The form contained a notice that Sweet had the right to rescind the acknowledgment withinsixty (60) days from the date of signing the form. Sweet was also listed as the child's father on a birth certificateissued on March 16, 2005.

Sweet took the child, without the mother's consent, for a paternity test on May 16, 2005. The test results hereceived four days later showed Sweet was not the biological father. On May 25, 2005, Sweet telephonedDHS, which only days earlier had opened a day-care and medical services case regarding the child. DHSrecords from May 27, 2005, indicate the agency received the DNA test results that excluded Sweet asK.H.C.'s biological father and closed its case against Sweet. Over an objection, a veteran employee of DHSwas permitted to testify that her agency considered the genetic test results as a rescission of Sweet's paternityacknowledgment. The mother informed Sweet of the case closure and and he had no more involvement orrelationship with the mother.

The mother later provided DHS with information regarding two other potential fathers of the child. On April 16,2007, DHS filed a child support enforcement action against Appellee, Billy R. Kemp, Jr., and ordered him tosubmit to genetic testing. The subsequent DNA test, performed and concluded in the summer of 2007,established that Kemp was the biological father. In April 2008, the mother revealed to DHS that she andSweet had signed a paternity acknowledgment for in 2005, and DHS had no record of any written rescission.Even though DHS had been provided with genetic test results that excluded Sweet as the father three yearsearlier, had closed its case against Sweet in 2005, and had since been provided with evidence establishingthat Kemp is the biological father, DHS added Sweet as a third-party defendant in its action against Kemp.

The trial court relied on 10 O.S. §7700-307 and 10 O.S. §7700-308 (2006), and ruled that Sweet failed totimely rescind his paternity acknowledgment. Therefore, the trial court adjudicated Sweet as the legal father.Sweet appealed and the court of civil appeals reversed. The Department did not file an appellate brief.

10 O.S. §7700-307(A) (1) provides that "a signatory may sign a rescission of acknowledgment of paternity"within "sixty days after the effective date of the acknowledgment." 10 O.S. §7700-308(A) generally providesthat a signatory of a paternity acknowledgment has two years to commence a proceeding to challenge theacknowledgment, which may be based only on "fraud, duress, or material mistake of fact." In the present case,Sweet never formally executed a rescission of the form. Notwithstanding, the DHS employee who testified attrial said her office considered Sweet's genetic test results as a rescission of Sweet's paternity acknowledgment.It is also undisputed that Sweet never commenced any formal proceeding to challenge his acknowledgment ofpaternity. Sweet argued that he had no reason to believe he needed to take any further action with respect tothe child after May 2005, when DHS was provided with the genetic test results proving Sweet was not K.H.C.'sfather and the agency closed its case against Sweet.

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The appellate panel determined that the purpose of the two sections to the Uniform Parentage Act was to aidin the orderly administration of paternity proceedings by providing two different methods for disputing a paternityacknowledgment. Subsection 307 provides a direct way for an acknowledged father to repudiate his acknowl-edgment, while Subsection 308 furnishes a means for an acknowledged father to challenge his acknowledg-ment in an adversarial proceeding. Both subsections also have, the panel noted, the underlying goal of providingnotice to both the state and to the mother of the putative father's repudiation of, or challenge to, his previouslysigned acknowledgment of paternity.

The panel then concluded that under the unique facts of the present case, the trial court erred in adjudicatingSweet as the legal father of the child. Relieving Sweet of the support obligations for the child of another manunder these circumstances, said the panel, would not defeat any of the purposes of the paternity statutes.Neither the mother nor her child has been denied a judicial forum for determining the identity of the father.Moreover, DHS has identified the biological father through DNA testing and he is presently before the court,thus the statutory goals of establishing a parent-child relationship for the child and providing for the child'ssupport are also protected.

Although not directly in point, the panel found that 10 O.S. §7700-631 and 56 O.S. §238.6B (G) (2007)supported their conclusion. The first of these statutes states that during paternity hearings and adjudications,"a man excluded as the father of a child by genetic testing shall be adjudicated not to be the father of the child."The other provides that if genetic testing conducted pursuant to DHS paternity and support proceedings"excludes a person from being a natural parent, the Department shall dismiss any pending court or administra-tive collection proceedings against the person." Sweet was excluded - and Kemp was identified -as the fatherof the child by genetic testing. Therefore the case was reversed.

PROPERTY

JOINT FAMILY TRUST, INCREASE IN VALUE OF SEPARATE PROPERTY

Marriage of Murphy, 2010 OK CIV APP 1, 225 P.3d 820 (cert applied for and withdrawn;the parties apparently settled)

This case involves the marital home located on a six acre tract (Tract 1) and an adjoining nine acre tract(Tract 2), denominated in the opinion as Richland Road. The home was the wife's separate property as aresult of a divorce from her first husband. Soon after the marriage, the parties as "Trustors," executed a trust,prepared by an attorney, entitled the "Michael O. Murphy and Kyong S. Murphy Family Trust which theyreserved the power to revoke or amend. They appointed themselves to be the "Trustees." If either died, theremaining original trustee would become the successor trustee, and upon his or her death, the wife's daughterwould become the trustee and the ultimate beneficiary. The husband and wife were the trust's incomebeneficiaries, for whose primary purpose the trust was expressly created. They executed a quit claim deedwhich conveyed Tract 1 and Tract 2 to Husband and Wife as Co-Trustees of the Family Trust. The husbandalso transferred to the Family Trust his separate property, including a residential property in Bethany, Oklaho-ma, a subdivision lot in Oklahoma City, and a brokerage account.

Three years later, the husband and wife decided to refinance Tract 1. As required by the lenders, theCo-Trustees of the Family Trust executed a warranty deed conveying only Tract 1 to themselves, as joint tenantswith rights of survivorship. That same day, after they executed the loan documents and obtained the funds, theyreconveyed Tract 1 back to the Family Trust.

The trial court, relying on the second conveyance back to Family Trust determined that Tract 1 was maritalproperty, as well as Tract 2. The wife appealed on this issue and the appellate panel affirmed, albeit on adifferent theory.

The court found two Supreme Court cases to be particularly instructive. First in Manhart v. Manhart, 1986 OK12, 725 P.2d 1234, the court held that 43 O.S.§§ 204 and 205 allow spouses to contract with each other and

30

alter their legal relations as to property by conveying jointly acquired property from the marital estate to the otherspouse's separate estate.

"Whether the property remains the separate property of the spouse to whom it is conveyed,depends on how the spouses treat the property. If they jointly use and manage the property, thenit may be considered •jointly acquired.' The controlling facts in such cases are the time of theconveyance in relation to the separation of the spouses, and the completeness of their separa-tion, especially in regard to their dealings concerning the conveyed property."

In Standefer v. Standefer, 2001 OK 37, 26 P.3d 104 the spouses negotiated a joint settlement to theseparate tort claims, sought a joint cash payment and jointly-issued annuities, and deposited their annuitypayments to their jointly-held account. The Supreme Court concluded that any separate interest each spousehad in their tort claims had lost its identity as separate property due to the commingling of their settlements.

In the case the court concluded that the entire marital home (both tracts) was marital property because,following the conveyance to the trust, the parties jointly used and managed the property, in particular theyreserved to themselves the right revoke the trust and receive the income from the trust.

The appellate panel characterized the trust as a "joint trust" or "joint revocable trust." Such trusts, the courtnoted, are an alternative estate planning technique which have become popular in common-law property statesbecause they avoid probate and the need to sever jointly owned assets into separate trusts for each spouse.

The panel found that the case which most closely resembles this one is Bartlett v. Bartlett, 2006 OK CIVAPP 112,144 P.3d 173. That case involved a transfer of a husband's separate property to his and his wife'sseparate revocable trusts. In that case, the husband argued the property remained separate because he hadcreated the separate trusts solely to reduce or avoid paying estate taxes. The court held that u[i]n determiningwhether placing an asset in joint tenancy for the purpose of avoiding estate taxes rebuts the gift presumption,the trial court must consider whether the donor had intent to transfer a beneficial interest in the property beforedeath." Considering the husband's transfers, the court in the Bartlett case, found that it was necessary that hegive part of his separate property to make each trust nearly equal "in order to receive the benefit of his taxplanning measures." The Bartlett court then distinguished the purpose of avoiding estate taxes from the jointownership required by the bank in Larman v. Larman, 1999 OK 83, 991 P.2d 536, finding "the joint ownershipis required by the parties themselves, because they hoped to benefit from it on their deaths." The Bartlett courtdetermined there was no collateral purpose to the gift.

In this case, the wife's intent to transfer a beneficial interest in the marital home "before death" was establishedby her conveyance of that property into a joint trust with a single trust estate comprised of the parties' separateand jointly acquired property for which she and her husband were the income beneficiaries during their lifetimes.Based on the parties' transfer of both Tract 1 and Tract 2 into the joint trust and all the benefits they receivedfrom its creation, the panel concluded that the conveyances into the Family Trust was the functional equivalentof a transfer into joint tenancy. Therefore the trial court's classification of the entire Richland Road property asmarital was not clearly against the weight of the evidence.

The husband had also appealed, arguing that the trial court's valuation of the home was against the weightof the evidence. As is the case with most such arguments, the appellate panel found that there was conflictingevidence in the record.

Therefore the trial court's determination of the question of fact had to be affirmed.

In addition, the husband appealed the trial court's failure to conclude that the increase in the value of the wife'sseparate property liquor store was marital. The appellate panel affirmed the trial court. In order to classify anyincrease in the value of separate property as marital, the non-owning spouse must show: 1. the value of theproperty at the time of marriage; 2. the value at time of separation; 3. the marital cause of the increase, eitherlabor or funds. In this case there was no evidence as to the value of the liquor store at the beginning of themarriage and therefore the trial court had to be affirmed.

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The case is important for its conclusion concerning the use of family trusts. It also raises clear ethicalquestions for estate planners. It appears that attorneys engaging in estate planning should clearly explain tothe married couple what is likely to happen to the property should the parties divorce, if married couples wereaware of the consequences of divorce, as well as death, they might well not choose this particular estateplanning device.

SUPPORT ALIMONY

ALIMONY AND CHILD SUPPORT: THE DEATH KNELL (ALMOST) OF THE CONSENTDECREE ISSUE

Parham v. Parham, 2010 OK 24, P3d

(As of June 30, 2010, this opinion has not been released for Publication in the Perma-nent Law Reports. Until released, it is subject to revision or withdrawal)

In a very important opinion, the Supreme Court clarified the problem of the consent decree exception tomodification and termination of alimony. However, it also raised new questions concerning its use in childsupport. The parties divorce agreement, which was incorporated into their divorce decree, provided:

The Respondent should be and is hereby ordered to pay spousal support to the Petitioner of$4,000.00 per month for a period of ninety (90) months (7 ½ years). The Respondent's paymentsshall commence on the first day of February, 2007, and shall continue on the first day of eachmonth thereafter until the total amount of $360,000.00 be paid in full. These payments ofsupport alimony shall terminate upon the death of either party, upon the Petitioner's remarriage,or as otherwise provided by Oklahoma statute.

The Respondent should be and is hereby ordered to pay to the Petitioner child support in theamount of $5,000 per month. The Respondent's child support payments shall be made on the firstday of each month beginning February 1, 2007, and continuing until the youngest child reachesthe age of eighteen or graduates high school during his eighteenth year, whichever occurs later,or until further order of this Court.

The husband filed to modify both provisions of the decree citing changed circumstances. The wife opposed themotion, arguing that the decree was a "consent decree" and therefore could only be modified with the consentof the parties, citing Stuart v. Stuart, 1976 OK 107, 555 P.2d 611. Since the parties' agreement providedonly for termination and not modification, she argued the alimony and child support provisions were thereforenot modifiable.

The husband, on the other hand, argued that even if the decree was a "consent decree," (1) both the supportalimony provision and the child support provision contained language that contemplated and allowed formodification of the provisions and (2) the parties' express agreements concerning "termination" of the respec-tive obligations do not preclude "modification" of the obligations otherwise allowed by law, relying on Dickasonv. Dickason, 1980 OK 24, 607 P.2d 674. The trial court agreed with the wife and granted her summaryjudgment motion. The husband appealed and the Supreme Court retained the case to resolve an apparentconflict between the Stuart and Dickason cases. It unanimously reversed the trial court.

The court first noted that there is a clear distinction between termination of a support obligation and modificationof that obligation. The two subjects are governed by different sections of 43 O.S. §134 with regard to alimonyand by different statutes in the child support area. In this case the provisions of the agreement dealt only withtermination and not with modification.

The court then noted that recently in Marriage of Burrell, 2007 OK 47,192 P.3d 286, it held that that adecree remains subject to statutory conditions for terminating a support obligation where "It contains no language

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relating to the [statutory conditions] or indicating that the statutorily based ... conditions ... are waived." Burrell,the court said, applied and reaffirmed the holdings of Dickason and Batchelor. Batchelor, 1978 OK 135, 585P.2d 1120. In Dickason, there was no provision in the parties' agreement or the decree that expresslyexcluded the agreed alimony award from becoming terminable on death or remarriage as provided by statute.The court, in that case, said that "[t]o escape the incidence of general law, [applicable to the class of judgmentsinto which it falls] [a divorce] decree must not be silent as to the parties' intent vis-a-vis the law that applies tothem." Dickason then held that: "intent to modify applicable law by contract is not effective unless the power isexpressly exercised."

The court then held that although Dickason and Burrell applied to termination of support, its reasoning appliedto cases involving modification of support. This is so, the court said, because both comprise the general lawapplicable to the class of judgments known as divorce decrees and are part of "the law which generally governsthe class of obligations" set by divorce decrees. Dickason, 1980 OK 24, ¶10, 607 P.2d at 677. Like the decreein Burrell, the decree in this case contained no language relating to modification of the obligations or indicatingthat statutorily based modification is waived.

The court then distinguished the Stuart case. It acknowledged that Stuart did indeed say that "[i]f the partieshad intended the [support] payments to be terminable on death or remarriage ... language to that effect wouldhave been included in either the Agreement or Decree." Stuart, 1976 OK 107, fl 16, 555 P.2d at 615.However, this observation in Stuart was made in reference to "support payments" that were "intended to bealimony payments in lieu of property division, and thus not subject to termination upon [the statutory conditionof] remarriage." Batchelor, 1978 OK 135, fl 9, 585 P.2d at 1123 As noted in Burrell, the so called "supportpayments" in Stuart were actually property division installments which were not subject to statutory terminationor modification by their very nature without regard to the parties' failure to address termination or modificationin the agreement or decree. Thus, the court said, the Stuart case cannot be read to support an absolute ruleforbidding consent decrees from being modified without the parties' mutual consent. Any statements in the caseabout agreed upon "alimony" not being subject to modification are simply dicta.

The court then held that the better rule is for the parties to expressly address termination and modification inthe agreement and decree, and to clearly state that they do not intend for a particular support obligation to besubject to statutory provisions governing termination or modification.

In footnote 6 the court acknowledged that Stuart was cited as authoritative in Whitehead v. Whitehead, 1999OK 91, 995 P.2d 1098, which, in turn, was extensively cited in Holleyman v. Holleyman, 2003 OK 48, 78P.3d 921. The Parham court distinguished those cases by saying that those cases dealt with an agreementby the parties to provide support obligations that exceeded those required by law, and not whether standardalimony and child support are subject to statutory provisions for termination and modification. In footnote 7, thecourt noted that the parties did agree on special conditions for the termination of alimony and child support. Whilenot at issue in this case, the footnote indicated that these special conditions were enforceable in lieu of thestatutory terminations provisions. This footnote raises the probability that the distinction often made after thedecision in the Whitehead case was announced will continue: Whitehead would stand for the proposition that ifthe parties' decree shows on its face that it is a consent decree with regard to a provision that the court couldnot order, in that case indefinite alimony, then the parties resolution of that issue cannot be changed by the court.Dickason, as noted in Parham, supplies the governing rule for provisions that could be ordered by the court butwere agreed to by the parties.

The only difficulty with the original opinion was the failure of the court to distinguish between the alimonyprovisions and the child support provisions. This was solved by a corrective order which added footnote 8 to theeffect that:

In recognizing that the parties have some latitude to agree upon special conditions for termina-tion or modification of child support, we do not depart from this Court's long standing rule that anagreement of the parties as to child support is not binding upon the court, nor can such agreementaffect the power of the court to modify an award of child support. Parkey v. Parkey, 1962 OK110, ¶¶18-19, 371 P.2d 711, 714. Enforcement of any conditions concerning the termination or

33

modification of child support that differ from the conditions provided by statute must always beguided by the best interests of the child.

The court is correct in that Oklahoma cases prior to the child support guidelines becoming law held thatthe parties could not agree that child support could not be modified. In addition to Parkey, see Taylor v.Taylor, 1963 OK 263, 387 P.2d 648. Indeed one case held that even if the agreement was notincorporated into the decree, it still could be modified by the court, although the remedies for nonpaymentwere limited to contract remedies. Childers v. Childers, 1950 OK 31, 214 P.2d 722.

The Parham case was remanded to the trial court to determine the merits of the husband's modificationmotion.

DIVORCE PROCEDURE

Ex Parte Temporary Restraining Orders, SB 2836 This bill amended 43 O.S. §110(B) (2) to provide that no child can be removed from a domestic vio-lence shelter by an ex parte order. The bill is effect on November 1, 2010.

HB 1053 House appoints conference committee. Senate appoints conference committee.Conference Committee Report Submitted.

HB 1520 By Peterson. Relates to children by regulating what "court experts" must disclosebefore they are eligible to appear in court. Passed House in 2009. Passed Senate Judiciary7-0, March 2010. Passed Senate 38-0. Sent to Governor.

HB 1964 Creates new provisions for legal guardianship by abandonment, amends childabuse statutes, and re-creates the Adoption Review Task Force; House accepts Confer-ence Committee Report. To Senate. Fourth Conference Committee Report Submitted onMay 12. House passes Conference Report 96-1. Senate passes conference report 44-0. ToGovernor.

HB 2279 Kern Amends the use of incompatibility as a ground for divorce. Incompatibilitycannot be used if minor children are in the marriage, the parties have been married ten yearsor longer, or if either party objects. Judiciary.

HB 2323 By Murphey. Provides that fees for any apostille requested for an internationaladoption shall not exceed $100.00 for the adoption of each child. Appropriations.

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HB 2543 By Wright, John. One hour of marital counseling mandatory before a couple canseek divorce. Required before the divorce petition can be filed. Local rule can implementthe act. Judiciary. Do Pass 7-2.

HB 2586 By Holland. Creates the Human Embryo Adoption Act. Defines terms relating toadoption activities and determines procedures. Amends statutes to include the HumanEmbryo Adoption Act. Changes "husband and wife" donating to "persons". Public Healthand Social Services. Laid Over.

HB 2601 By Morrissette. Obliges the moving party during an emergency jurisdiction childcustody proceeding to prove by clear and convincing evidence thatmistreatment/abandonment has taken place. Also modifies statutory language by specify-ing the title. Judiciary.

HB 2619 By Proctor. Health plans beginning in 2011 cannot deny coverage on the basisof domestic violence being a pre-existing condition. Economical Development.

HB 2634 McCullough Defines a covenant marriage as being between a man and a woman.Creates minimum marriage counseling requirements. Makes grounds for divorce morestringent. Judiciary. Do Pass as Substituted 6-5. Passed House 51-45. Bill now containscovenant marriage, mandatory premarriage counseling, abolishes common law marriageand mandatory educational program. Referred to Judiciary.

HB 2648 Nelson. Shell Bill on Adoption. Will contain some of the material from theAdoption Reform Commission. Do Pass as Substituted from Human Services. PassedHouse 96-4. To Senate. Among other things the bill applies the UCCJEA to adoptioncases. Referred to Judiciary. Do Pass by Judiciary with a stricken title and enacting clause.Passed Senate 44-0. House rejects Senate amendments. Senate appointed a conferencecommittee: Russell, Anderson, Crain, Newberry, Laster. In Conference. Conference Com-mittee Report Submitted on May 12. House rejects Conference Report. Further Confer-ence.

HB 2672 Sullivan Shell bill amends minor language pertaining to civil procedures concern-ing minors owning property to be gender neutral, dealing with emancipation. Rules.

HB 2721 Sherrer Allows a proceeding to be brought by a presumed father, mother, or otherindividual to adjudicate the parentage of a child within one year from discovery of a fraudperpetrated upon a presumed father. Human Services. Rereferred to Judiciary. Do Passfrom House Judiciary.

HB 2826 Peters Requires each district court to adopt forms for pro se persons seeking adivorce. Clarifies certain restrictions associated with temporary restraining orders by Provid-ed, for the that no minor child or children temporarily residing in a licensed, certifieddomestic violence shelter in the state shall be removed by an ex parte order. Judiciary. DoPass from Judiciary. Passed House 98-0. To Senate. Referred to Judiciary. PassedJudiciary 6-0. Passed Senate 44-0. Enrolled. Now deals only with ex parte orders ofchildren in domestic violence shelters. Passed House and Senate.

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HB 2827 Peters. Amends the VPO statutes. Passed House 95-0. To Senate. Referred toJudiciary. Passed Judiciary 6-0. Passed Senate 29-15. To governor.

HB 2849 Joyner Shell Bill Clarifies minor language relating to the "Child Abuse PreventionAct." Human Services.

HB 2864 Buck Adds joint custody as the best interest of a child when appointing guardian-ship. Creates rebuttable presumption for joint custody. Judiciary.HB 3002 Steele Shell Bill on Emancipation. Modifies minor language related to a minordesiring the rights of majority making it gender neutral. Rules.

HB 3050 Nations Shell Bill on Adoption. Clarifies minor language regarding the"Oklahoma Adoption Code". Human Services.

HB 3069 Morrissette New law that establishes the Judicial Assessment Review Act of 2010.Shell bill. Rules.

HB 3077 Hamilton Makes it illegal for any person to procure oocytes from women byhormonal egg follicle stimulation and surgical extraction, offering compensation to do so. Todo so would result in the permanent revocation of the professional's license. HumanServices. Do pass from Human Services. Passed House 88-8. To Senate. Referred toAppropriations.

HB 3085 Williams A district attorney may file a petition for termination of a parent-childrelationship upon the felony conviction of a parent for assault and battery, given the perpe-trator and victim are the parents. Termination does not affect child support. Judiciary.

HB 3102 Trebilcock Creates the 'Uniform Collaborative Law Act'. Defines terms, parties, andqualifications. Judiciary. Do Pass from House Judiciary. Passed House 99-0. To Senate.Referred to Judiciary.

HB 3105 Trebilcock Stipulates that "convention" refers to the Convention on the Int'l Recoveryof Child Support amd Other Forms of Family Maintenance. Also clarifies minor language inthe bill as it relates to the Uniform Interstate Family Act. .UIFSA Judiciary.

HB 3150 Ownbey Shell Bill on Emancipation. Makes minor language changes to lawregarding minors seeking rights of majority to make gender neutral. Rules.

HB 3262 Blackwell Shell Bill on Emancipation. Amends language granting the rights ofmajority. Makes specific cases gender neutral. Rules.

HB 3267 Jackson Shell Bill Creates the 'Child Advocacy Act of 2010'. Judiciary. Do Pass asSubstituted from House Judiciary. Passed House 89-0. It now deals with funding of multi-disciplinary teams in child abuse investigations. Referred to Appropriations. Do Pass asAmended. In Conference. Both Houses pass Conference Report. To governor.

HB 3277 Jackson Shell Bill. Creates the Grandparental Visitation Act of 2010. Rules

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HB 3278 Jackson Shell Bill on emancipation. Modifies minor statutory language pertainingto minors seeking rights of majority. Rules.

HB 3292 Peterson Shell Bill on Emancipation. States that any minor desiring to obtain the rightsof majority by the next friend of the minor may file a verified position in district court of thecounty in which the minor wishes to reside; also makes language gender neutral. HumanServices. Do Pass as Substituted. Passed House 97-0. To Senate. Bill now deals with amend-ments to adoption code; adoption assistance payments, independent living for mature mi-nors. Referred to Human Services subcommittee of Appropriations. Passed Committee 8-0with stricken title. Passed Senate 37-2. In Conference. Conference Report Submitted, May 12.House passed Conference report 92-0. To governor.

HB 3296 Tibbs States that if a child support obligor makes a required payment and theDept of Human Services fails to send the payment to the recipient, the obligor is not liable topay any accrued interest. Rules

HB 3360 Duncan Shell Bill on Emancipation. Makes law gender neutral regarding theprocedure for a minor to obtain rights of majority. Rules.

HB 3361 Duncan Shell Bill on 43 O.S. §104 dealing with personal jurisdiction. Makesgender neutral statute regarding court's ability to exercise jurisdiction of alimony and childsupport. Rules.

HB 3363 Duncan Shell bill dealing with marriage licenses. Makes gender neutral statuteregarding marriage licenses. Rules

HB 3408 Nelson Those authorized to solemnize matrimonial rites who marry personsprohibited from marrying will be convicted of a felony, will be fined no more than $500, andimprisoned in the custody of the State Dept. of Corrections from one to five years. Rules.Laid Over. But Proposed Committee Substitute deals only with Section 104.

H JR1056 By Duncan. Sends to a vote of the people the question of forbidding courts fromlooking at foreign law to decide cases. Rules. Passed Committee 9-2. Title has beenstricken. Passed House 91-2. To Senate. Resolution no longer prohibits relying on treatiesthe US is a party to. Passed Senate Judiciary 7-0. Conference Report Submitted. Housepasses conference report, 82-10. Passed.

SB 1251 Wilson No health benefit plan shall deny coverage based on insured persons' sstatus as a victim of domestic abuse. Passed House 45-0. To House. Referred to HouseEconomic Development. Passed Committee as Amended. Conference Report Submitted.Passed House. Set on Senate Floor Agenda May 13. Passed House and Senate. Togovernor.

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SB 1327 Bass Modifies existing language by blocking the court's ability to amend existingcustody orders of parents who are to be separated from a child due to military servicerequirements; EMERGENCY. Judiciary.

SB 1371 By Leftwich. Health benefit plans would not be able to deny coverage based onapplicant's or insured's status as a domestic abuse victim. Domestic abuse would not be apreexisting condition. Would go into effect November 1, 2010. Retirement and Insur-ance.

SB 1789 By Brogdon. Judges must order child witnesses to testify by an alternativemethod if motion is made by the witness or a party. Also sets a minimum 25 year sentence forconvicted rapists when the victim is under 12 years of age. Judiciary.

SB 1793 By Paddack. Waives the right to a jury trial for hearings relating to thetermination of parental rights for those who have requested such a trial and fail to appear,following proper notification and without good cause. Judiciary. Passed 6-0. Title stricken.Passed Senate 54-0. To House. Referred to Judiciary. Do Pass as Amended. PassedHouse 62-35. In Conference. Both Houses pass conference report. To governor.

SB 1938 By Sykes. Designates that the venue of action in cases involving a deprived childto be where the child resides or has resided for six months before the filing. If the venuesdesignated for action are unknown, the venue can be where the child was found. Judiciary.Passed 6-0. Passed Senate 43-0. To House. Referred to Human Services. Do Pass fromHuman Services. Passed House 89-4.

SB 1977 Garrison Eliminates the recognition of a common-law marriage by November 1,2010. Judiciary. Passed 5-4. Passed Senate 30-15. To House. Referred to Judiciary.

SB 2196 Russell Dep. of Veteran's Affairs shall not include pay given to a veteran as a resultof an injury in its calculation of child support payment obligations. Judiciary. Passed 6-0 witha stricken title. Passed 39-6. To House.

SB 2204 Ivester Creates the "Uniform Adult Guardianship and Protective ProceedingsJurisdictions Act." Sets provisions for jurisdiction, transfer of guardianship, registration of outof state orders. Judiciary. Do Pass as Amended from Judiciary. Passed Senate 43-0. ToHouse. Referred to Judiciary. Do Pass as Amended from Judiciary. Passed Senate.

SB 2235 An Act relating to emergency custody; providing requirements for certain hearingmotions; specifying certain affidavit requirements; requiring certain hearing within certainperiod; providing for hearing after certain court failure; authorizing court to take certainaction for certain false affidavits; providing penalties; providing for codification; andproviding an effective date. Passed Senate 45-0. Passed House as Substitued by Com-mittee. Conference Committee. Passed House 79-0. In Conference. Conference committeereport passes both houses. Final Bill deals with emergency custody hearings and thequalifications of parenting coordinators. To Governor. .

SB 2237 Anderson Shell Bill on Marriage. Makes language gender neutral relating tomarriage and family. Rules

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SB 2269 Crain Shell Bill on Marriage. Amends language relating to marriage to ensuregender-neutrality. Rules.

SB 2272 Laster Shell Bill on Marriage. Amends language relating to marriage to ensuregender-neutrality. Rules

CLE and Monthly Meeting

Monthly Meeting during Leadership Retreat

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OBA FLS Annual CLE & Business Meeting (Tulsa)

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