Mandate Issued: 05/24/2018
FROM THE DISTRICT COURT OF OSAGE COUNTY, OKLAHOMA HONORABLE
JOHN M. KANE, JUDGE
A. Jones, Tulsa, Oklahoma, for Petitioner/Appellee,
Alexander, THE ALEXANDER LAW FIRM, PLLC, Tulsa, Oklahoma, for
D. BELL, PRESIDING JUDGE
In this post-paternity proceeding, Respondent/Appellant,
Madison Carolyn Boyd (Mother), appeals from the trial
court's order modifying the parties' joint custody
arrangement and implementing a "split custody"
arrangement. The parties were never married to each other.
Mother currently lives in Georgia and Father lives in Osage
County, Oklahoma. The trial court found both parties are fit
parents, but due to numerous incidents on important issues,
the parties have shown an inability to fully cooperate in
raising the child. The trial court awarded
Petitioner/Appellee, Denton James Polson (Father), physical
and legal custody of the parties' minor child during the
school year, and awarded Mother physical and legal custody of
the child during summers, fall break, spring break, and
Thanksgiving break. The parties were ordered to alternate
Christmas. After reviewing the record and extant law, we
cannot find the trial court's "split custody"
order was contrary to the evidence or the child's best
interests. We therefore hold the trial court did not abuse
its discretion in entering the "split custody"
custody order and affirm.
The parties' child, E.M.E.P., was born December 1, 2010.
The parties filed an agreed decree of paternity, joint
custody plan and child support computation on March 2, 2012.
The decree found both Mother and Father were fit and proper
persons to be awarded the care, custody and control of the
child. In January 2015, Father filed a motion to modify the
joint custody arrangement. Father asked the court to award
him sole custody because Mother relocated to Georgia, Mother
subjected the child to three residential moves in two years,
the transportation costs for custodial exchanges have
increased due to Mother's relocation, and the child would
soon be attending kindergarten. Father also stated he should
have sole custody because it was important for the child to
obtain instruction as to her Osage Indian heritage which was
offered at the Osage Headstart program in Skiatook, Oklahoma.
Mother counterclaimed for sole custody as well.
At trial, the parties described that they shared custody with
one month in Oklahoma and one month in Georgia. However,
because the child is beginning kindergarten, both parties
agreed it is not reasonable to continue this arrangement
because of the geographic distance. Mother testified she is
married, that she and her spouse have an 8-month old child,
and that they live in Savannah, Georgia. She stated she is
very stable, unemployed and can stay home to care for her
children. Mother pointed out Father's 24-hour shifts as a
paramedic firefighter made him unavailable to parent the
child on a daily basis. She asserted Father's wife is the
primary care-giver when Father is working. Mother stated she
has no issues with Father's wife, but she asserted the
child should be raised by Mother. Mother also testified all
her family, parents, brothers and sisters and their spouses
live in Savannah, Georgia.
Father testified he works a 24-hour shift as a paramedic
firefighter. He then has 48 hours off to care for his child.
Father admitted during his 24-hour shift, he cannot care for
the child, but stated he is accessible to the child at any
time other than when he is performing his job. During his
24-hour shift, Father delegated his custodial
responsibilities to his wife. Father testified his wife and
the child are very close and she has been in the child's
life since the day the child was born. Father asserted he is
very stable, he has maintained consistent residences, and he
has never met Mother's husband.
After the trial, the trial court found both parents are fit
and proper persons to have custody of the child. The court
announced: "the Court would be entitled under the facts
here to continue with joint custody and perhaps simply modify
the joint custody plan, but I'm going to do something
that I have rarely done, if ever; and that is, I am going to
order split custody in this case." The court explained
this "means that whichever parent has the child during
their time of custody is the custodial parent." The
trial court stated the parties' testimony gave the court
concern about their ability to cooperate in the raising of
this child. Based on these findings, the trial court granted
Mother custody of the child during the summer, fall break,
spring break, and Thanksgiving break. The court granted
Father custody during the school year. The parties were
ordered to alternate Christmas. Mother now appeals arguing
the court's order was contrary to law, not in the best
interests of the child and an abuse of discretion.
Custody proceedings are equitable matters; thus, the trial
court's ruling will not be disturbed unless it is against
the clear weight of the evidence respecting the best
interests of the child. Manhart v. Manhart, 1986 OK
12, ¶14, 725 P.2d 1234. In custody modification matters,
this Court gives great deference to the trial court's
judgment because the trial judge is better able to determine
controversial evidence by observing the witnesses and their
demeanor. Id. at ¶15.
In the instant case, both parties sought to modify the joint
custody arrangement and to be awarded sole custody of the
child. Joint custody may be terminated upon the request of
one or both parents, or whenever the trial court determines
joint custody is not in the best interests of the child.
Title 43 O.S.Supp. 2009 §109 (G)(1). "When it
becomes apparent to the court that joint custody is not
working and it is not serving the child's best interests,
then a material and substantial change of circumstance has
occurred and the joint custody arrangement must be
vacated." Daniel v. Daniel, 2001 OK 117,
¶20, 42 P.3d 863. "When joint custody is
terminated, the trial court must proceed as if it is making
an initial custody determination and award custody in
accordance with the best interest of the child, as if no such
joint custody decree had been made." Id. at
On appeal, Mother does not contest the termination of the
joint custody arrangement. She objects to the change in
child's primary domicile during the school year. Mother
posits the trial court should have left the child in her care
for the in-school/nine-month period and placed the child with
Father for the summer period. Mother claims the trial court
improperly considered her relocations as instability and a
basis to award Father in-school custody. She also argues
Father's work schedule prevents him from personally
caring for the child. Mother argues there is no rational
basis for an absent Father to be awarded primary custody of
the child. Also, Mother argues there is no statutory
authority for a "split custody" order in Oklahoma.
Father counters the trial court properly placed the child
with him for the school year. He explains his work schedule
allows him to spend blocks of time with the child. He also
maintains he personally performs the parenting duties and
responsibilities when he is home. He submits it is in the
child's best interest to attend school ...