Tuesday, February 01, 2005

Parental Rights and Child Custody Opinion

In King v. King, 2004 OK 4, the Oklahoma Supreme Court issued and opinion today holding that a prevailing parent, demonstrating good cause for withholding court-ordered visitation, is entitled to appeal-related attorney fees. The court further held that where a child consistently repeated the allegations of abuse, professionals expressed opinions that the abuse occurred, and the mother had to make a choice between denying visitation and putting her parental rights in jeopardy, the equities supported an award to the mother.
Summary:
Anthony and Barbara King were married in 1998. They had one child in also in 1998. In December of 2000, Mrs. King moved to Kansas. Mr. King later filed for divorce in 2001. The court granted Mrs. King custody and gave Mr. King standard visitation rights. Following allegations of sexual abuse by an uncle during visitation with Mr. King, Mrs. King refused to allow the father visitation with the child.
The father filed a motion to modify asserting that it would be in the best interests of his son to change the custodial arrangement. After a hearing, the trial court, Honorable Noah Ewing, granted the father custody ordering the mother to pay child support. He also ordered that the child was not to be around the uncle at any time.
The Court of Civil Appeals reversed determining that: 1) the mother had good cause for the temporary failure to allow visitation; 2) there was no evidentiary support for the conclusion that the child was manipulated; 3) no clear and convincing evidence existed of a permanent, substantial and material change of circumstances; and 4) the trial court's decision was against the clear weight of the evidence. Upon review, the Supreme Court left the Court of Civil Appeals opinion, which reversed and remanded the decision of the trial court, undisturbed. The court held that because the clear, explicit, mandatory and unmistakable terms of 43 O.S. Supp. 2003 ยง112(D)(2) authorize the award of attorney fees to the prevailing party, on consideration of an issue of first impression, a prevailing parent, demonstrating good cause for withholding court-ordered visitation, is entitled to appeal-related attorney fees. The court further held, under the facts presented -- where the child consistently repeated the allegations of abuse, professionals expressed opinions that the abuse occurred and the mother had to make a choice between denying visitation and putting her parental rights in jeopardy, the equities support an award to the mother.

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