For The Children Weekly Column

New Court Ruling Favors Parents Seeking Modification to Visitation Schedules

January 24, 2022

FOR IMMEDIATE RELEASE – “For the Children” Weekly Column
Contact: Joe Dorman, CEO – Oklahoma Institute for Child Advocacy
Telephone: (405) 833-1117

OKLAHOMA CITY – At the Oklahoma Institute for Child Advocacy, we are charged with “creating awareness, taking action, and supporting policy to improve the health, safety, and well-being of Oklahoma’s children.”

We take this role very seriously when it comes to keeping you informed about issues in the making at the State Capitol, or as they are happening with state agencies and the courts. In a recent decision, the Oklahoma Civil Court of Appeals held that parents can now seek a change to their physical custody schedule, also referred to as visitation, because the “best interests of children” has returned to the forefront of the Court’s judgment.

We asked Brad Cunningham of Conner & Winters Law Firm to share input on this, and here is his brief on the case. In full disclosure, Mr. Cunningham is the attorney for the father in the case.

“For years, an Oklahoma divorced parent seeking to modify a visitation schedule had to meet the same standard required to modify a change in legal custody: proof of a ‘substantial, material, and permanent change in circumstances which directly affects the children and that the children would be substantially better off if a change in visitation were made.’ Basically, a parent had to prove to the Court that the other parent was no longer a fit caregiver just to change visitation rights. Under such a standard, it has been hard for any parents to change their visitation schedule without an extreme situation.

“In the recent case of Swiney v. Villanueva, the Oklahoma Court of Appeals rejected that heightened standard and ruled that, when considering a modification to visitation going forward, Oklahoma courts are simply to determine what is in the best interest of the children. The Court reasoned that, under the prior scheme, there would be a ‘myriad of situations where it would be impossible for a non-custodial parent to modify visitation.’

“It is all too common in some legal situations immediately following the parents’ separation for one parent to not be as involved in a child’s life as they would like. However, under the prior interpretation of the law, it was nearly impossible for such a parent to change the visitation schedule to become more involved, even when he or she proved to the Court their situation had improved for the better.”

He further noted that, while this ruling is significant for Oklahomans, it is simply a return to actual Oklahoma law. The Oklahoma statute for modification of visitation has long stated that visitation schedules can be modified whenever a change was proper and was in the best interest of the children. However, over the years, the courts have regularly followed the higher standard and more strenuous system of review, making modifications all but impossible.

We feel this new ruling is great news for Oklahoma children in following the science of Adverse Childhood Experiences, called ACEs, and particularly the impact of separation from a parent. Many children are raised by parents who live separately. These can be divorced parents, parents who were not married but lived together and have now separated, or even parents who never lived together. Numerous studies have demonstrated the positive impact of having both parents involved in a child’s life. Those studies indicate that having both parents involved can provide significant social, psychological, and health benefits for children.

With the Swiney court ruling, now a parent can more easily modify the terms of their visitation schedule when it is in the child’s best interest – and that really should be the paramount consideration in these situations.