USA – OKLAHOMA Trends and Developments Contributed by: Aaron Bundy, Danya Bundy and Catherine Hensley, Bundy
schedules as the normative standard for post-decree arrangements. However, this presumption of equal access often col ‑ lides with the protective mandates of 43 O.S. Sec ‑ tions 109 and 109.3. While general policy favours maximum contact, Section 109.3 explicitly strips the court of discretion to ignore abuse, mandating that the court must consider any evidence of domestic violence, stalking or harassment. This consideration triggers Section 109 (I), which establishes a rebuttable presumption that joint custody, or any shared parent ‑ ing plan, is detrimental to the child if such violence is found. The legislature has effectively intensified the evidentiary burden in these scenarios, requiring the perpetrator to prove that the child’s safety is ensured in order to overcome the presumption against them. This creates a dichotomy where trial courts must simultaneously weigh the legislative preference for “substantially equal access” against a strict statutory prohibition on placing children with abusive parents. The struggle for the judiciary lies in the threshold determinations of abuse and the subsequent shifting of burdens. Under the interaction of Section 109.3 and Section 109 (I), if a court finds that domestic violence has occurred, the policy preference of Section 110.1 effectively evaporates, replaced by a safety-first man ‑ date that presumes the abuser should not have shared rights.
The legislature has moved to close a loophole often used against victims of violence. The amended Sec ‑ tion 109 now clarifies that if a parent relocates or is absent from the home to escape domestic violence, that absence cannot be weighed against them in cus ‑ tody determinations. This provision directly counters the “friendly parent” arguments often deployed in liti ‑ gation, where a victim’s flight to safety was previously characterised as a failure to support the other parent’s relationship with the child. As 2026 progresses, prac ‑ titioners can expect appellate courts to further refine how these statutes interact, specifically regarding how much evidence is required to trigger the Section 109 presumptions that override the Section 110.1 policy of equal access.
367 CHAMBERS.COM
Powered by FlippingBook