Opinion
Case No. 117,759 Companion to Case No. 119,021
12-02-2020
In re the Marriage of: Amanda ROBINSON, Petitioner/Appellee, v. Steven ROBINSON, Respondent/Appellant.
Craig L. Box, Julia C. Rieman, GUNGOLL, JACKSON, BOX & DEVOLL, P.C., Enid, Oklahoma, for Petitioner/Appellee Russell N. Singleton, Enid, Oklahoma, for Respondent/Appellant
Craig L. Box, Julia C. Rieman, GUNGOLL, JACKSON, BOX & DEVOLL, P.C., Enid, Oklahoma, for Petitioner/Appellee
Russell N. Singleton, Enid, Oklahoma, for Respondent/Appellant
OPINION BY P. THOMAS THORNBRUGH, PRESIDING JUDGE:
¶1 Steven Robinson (Father) appeals a decision of the district court denying his application to modify his visitation schedule with his minor children. On review, we find that the court incorrectly applied the Gibbons test in these circumstances, and reverse. Because the trial court has since crafted a new visitation order that is under appeal in the companion case, we find no further action is necessary at this time.
BACKGROUND
¶2 Mother and Father were divorced in 2017. As part of the divorce, Mother was granted physical custody, and the couple reached an agreed visitation schedule. At that time, Mother lived in Enid, Oklahoma, and Father was a reservist stationed on active duty at Vance Air Force Base in Enid. After Father's duty at Vance ended, he moved to Dallas, where he works as a pilot for Southwest Airlines. He sought a modification of the current visitation schedule on grounds that his location and work timetable had changed. Father did not attempt to require the children to travel to Dallas for visitation but proposed instead that he fly to Enid in a private aircraft he had purchased to facilitate visitation at a house Father had retained for that purpose. Because of these circumstances, Father requested 10 days of consecutive visitation each month as opposed to the "every other weekend and two evenings a week" schedule provided by the parties' divorce decree. Mother opposed Father's request. The trial court granted Mother's demurrer at the close of Father's evidence; ruled that Father must satisfy the test set forth in Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482, to justify a change in the visitation schedule and found that, although Father had shown a "material change in circumstances," he had not proven that it would be in the best interests of the children to change the visitation schedule.
¶3 Father appealed this decision, and the matter was assigned Case No. 117,759. During the pendency of the appeal, the trial court conducted another hearing and changed the visitation schedule. Mother has appealed the latter decision (and others), in an appeal assigned Case No. 119,021 that has been made a companion to this case.
STANDARD OF REVIEW
¶4 In a divorce action the trial court is vested with discretion in awarding custody and visitation. Daniel v. Daniel , 2001 OK 117, 42 P.3d 863. The best interest of the child must be a paramount consideration of the trial court when determining custody and visitation. On issues regarding the best interest of the child, the standard of review is whether the decision of the trial court is against the clear weight of the evidence or an abuse of discretion. Wood v. Redwine , 2001 OK CIV APP 115, 33 P.3d 53. In this case, the primary issue is one of the applicability of a common-law test in particular circumstances. This is a question of law that is reviewed de novo.
ANALYSIS
I. APPLICABILITY OF THE GIBBONS TEST TO A REQUESTED CHANGE IN VISITATION SCHEDULE
¶5 In Gibbons , the Supreme Court held that modification of a custody order requires an applicant parent to demonstrate "a permanent, substantial and material change of conditions which directly affect the best interests of the minor child," and that because of the change in conditions, "the minor child would be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered." Id. at ¶ 12.
¶6 The question of the use of the Gibbons test to determine if a court should grant modification of a visitation schedule is raised here. Before investigating this question further, we first note that the decree in question was a consent decree. While the decree does not appear to provide any procedures directly addressing modification of a visitation schedule, it does set out procedures to be followed if either party "relocates," as occurred in the instant action. This procedure, agreed to by the parties and approved by the court as a consent decree, makes no apparent use of the Gibbons test in resolving a relocation or visitation schedule question. We find no indication whatsoever that, having voluntarily requested that this agreement be rendered as a binding order of the court in the form of a decree, the parties made any attempt to follow these provisions. However, we will assume that, since both parties joined in the litigation here without demanding that this clause be followed, they waived any procedure or right under the decree and instead consented to submit the matter to immediate judicial interpretation.
The situation can be likened to one where parties sign a "binding arbitration agreement" in which each party explicitly gives up its right to resolve a covered dispute in court and yet both parties litigate a covered matter for many months without interposing the arbitration agreement. If the litigation proceeds sufficiently, the law holds that the contractual right to arbitration is waived.
¶7 The application of Gibbons to the question of a change of custody is well established. As noted above, "[u]nder Gibbons , a custody order may not be modified unless the applicant parent demonstrates a permanent, substantial and material change of circumstances which directly and adversely affects a child in such a material way that as a result the child would be substantially better off if custody were changed to the other parent." Abbott v. Abbott , 2001 OK 31, ¶ 8, 25 P.3d 291 (citation omitted). The singular question of law before us is whether these criteria must also be satisfied before a court may change a visitation schedule .
A. Visitation Criteria Pursuant to 43 O.S. § 112(A)
¶8 Title 43 O.S.2011 § 112(A) provides in pertinent part that a court:
(2) Unless not in the best interests of the children, may provide for the visitation of the noncustodial parent with any of the children of the noncustodial parent; and
(3) May modify or change any order whenever circumstances render the change proper either before or after final judgment in the action; .... (Emphasis added).
¶9 The statute does not explicitly require the use of the Gibbons criteria in a modification of visitation. Indeed, the statute deals with visitation separately from the issue of custody, indicating that the Legislature did not consider the procedures and criteria to be identical. We agree with Father that no statute or case law appears to immediately apply the Gibbons test to questions of modifying a visitation schedule.
¶10 Mother argues, however, that the courts have modified these § 112(A) criteria and that Gibbons requires that a visitation schedule should not be changed absent a permanent, substantial, and material change of circumstances which adversely affects a child in such a way that the child would be substantially better off if the visitation schedule were changed. We find no evident adoption by the Supreme Court of the Gibbons criteria in questions of modification of a parental visitation schedule. Mother cites Ingram v. Knippers , 2003 OK 58, 72 P.3d 17, and Scott v. Scott , 2001 OK 9, 19 P.3d 273, as doing so. Her reliance is misplaced. Both cases deal with the issue of grandparental visitation, a separate statutory section governed by substantially different principles.
B. Non-parental Visitation Criteria Pursuant to 43 O.S. § 109.4
¶11 A public policy of encouraging parental visitation is stated in 43 O.S.2011 § 112(A)(2), as providing for visitation "[u]nless not in the best interests of the children," i.e. , that a party opposing visitation has the burden of showing visitation is against the best interests of the child. By comparison, 43 O.S. Supp. 2016 § 109.4(A)(1) does not encourage or allow court-ordered grandparental visitation unless:
Emphasis added.
b. there is a showing of parental unfitness, or the grandparent has rebutted, by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child, and
c. the intact nuclear family has been disrupted ...
¶12 The two statutes embody quite different and opposing principles regarding parental and non-parental visitation, and we think it unlikely that the Supreme Court would have used the occasion of an analysis of § 109.4 to effect a substantial change in the statutory criteria of § 112(A). The requirement of § 109.4 that an applicant show that the child "would suffer harm or potential harm without the granting of (grandparental) visitation rights" fits reasonably well with the Gibbons requirement that the moving party show that the child would be "substantially better off" if a change were made. The same Gibbons criteria are contrary, however, to the visitation policy embodied in § 112(A).
¶13 In Ingram, a parent sought to terminate a grandparental visitation order . The argument that Gibbons applies to changes in a parent-parent visitation schedule arises from the following passages of Ingram:
While a fit parent contesting grandparental visitation is entitled to a presumption that the parent will act in the best interest of the child, Neal , 2000 OK 90, 14 P.3d 547, a court will not modify a valid visitation order without the moving party first showing a substantial change of circumstances. Scott , 2001 OK 9 at ¶ 5, 19 P.3d at 275. Having agreed to the initial grant of visitation with Grandfather, Mother cannot in this subsequent proceeding litigate the issue of harm without showing a change in circumstances and Child's best interest will be served by terminating the visitation.
Scott is also a grandparental visitation case.
Scott is also a grandparental visitation case.
Ingram , 2003 OK 58, at ¶ 19, 72 P.3d 17.
¶14 Unlike the situation presented here, the question in Ingram was not a simple change in a parental visitation schedule; rather, the mother in that case had filed a motion to terminate grandparental visitation. Nonetheless, here, Mother argues that ¶ 21 of Ingram extended the Gibbons test to requests for changes in a parent-parent visitation schedule with the following language:
We believe our decision protects a parent's right to custody and control of a child without ignoring the child's best interest. "Having once protected the parent's right to custody [and control of a child], at the risk of sacrificing the child's best interests, we should not then sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case." C.R.B. v. C.C., 959 P.2d 375, 380 (Alaska 1998) (emphasis in original omitted).
¶15 Ingram requires the Gibbons criteria in a proceeding to terminate grandparental visitation. See id. ("we should not ... sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case "). Mother argues this language recognizes that, even prior to Ingram, parents had to show the Gibbons criteria as the threshold to modify a parent-parent visitation schedule.
¶16 The key here concerns what the Court was referring to by the phrase "modifying those arrangements ." As we previously noted, Ingram involved a termination of visitation rights by a non-parent . It seems a curious case for the Court to use as a vehicle to examine a modification of a parent-parent visitation schedule. Further, if Ingram simply confirms that the Gibbons test already applied to changes in a parent-parent visitation schedule, we see no immediate reason why the Court should cite the common law of Alaska as authority for a principle that was purportedly already in effect in Oklahoma law.
¶17 Examining the cited Alaska case of C.R.B. v. C.C. , 959 P.2d 375 (Alaska 1998), we find that it did not involve a change in a parental visitation schedule at all. It was cited because, like Ingram, it involved the rights of a non-parent. Id. A parent appealed the denial without hearing of his motion to modify custody from a non-parent (on the grounds that no "substantial change" had occurred). Id . at 378. The case held that a parent who moves to modify a non-parent's properly granted, permanent custody must show as substantial a change in circumstances as a parent seeking to modify custody. Id . at 379. The citation in Ingram to page 380, of C.R.B. states, "Our review of out-of-state cases suggests that the modern rule is to impose the same changed-circumstances requirements on parents who seek to modify a nonparent's court-ordered, permanent custody as on parents who seek to modify parental custody ." (Emphasis added; footnotes omitted). It is the fact that a non-parent held custody that prompted the Alaska Court to hold that the same requirements applied to a change in that custody "as in parent-parent cases." It is completely clear that the "arrangement" that C.R.B. seeks to protect from modification is the custody of the child, not a change in a visitation schedule.
¶18 Examination of C.R.B. makes clear to us that the Supreme Court in Ingram did not cite that case either as persuasive authority to, or an example of, imposing the Gibbons test as a threshold for a parent seeking modification of a visitation schedule. The "arrangement" referred to in ¶ 21 of Ingram is either the non-parental custody of the child (as was the case in C.R.B. ) or the right to court-ordered non-parental visitation . We find that Ingram did not impose the Gibbons test as a threshold for a parent seeking a modification of a visitation schedule . We find no Oklahoma case that does. There also appear to be a number of practical and policy reasons why this should be so.
We further see no rational reason why the Supreme Court should use such oblique language in a case involving a termination of grandparental visitation if it wished to hold that the Gibbons test applied to a motion by a parent to modify a visitation schedule . A simple sentence to that effect would suffice. We further note that, in the ensuing seventeen years, the Court has not confirmed that Ingram imposed such a rule.
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II. GENERAL PRINCIPLES OF OKLAHOMA LAW REGARDING VISITATION
¶19 As noted previously, the public policy of Oklahoma encourages the provision of visitation to non-custodial parents unless against the best interests of the child. 43 O.S. § 112. Further, pursuant to 43 O.S.2011 § 110.1 —Policy for Equal Access to Minor Children by Parents:
It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.
Although Division III of this Court held, in Redmond v. Cauthen , 2009 OK CIV APP 46, ¶ 6, 211 P.3d 233, that later language in this statute encouraging "substantially equal access" applies only to the temporary order hearing phase of a case, and not a final visitation order, the general policy is clear.
¶20 Case law demonstrates that the main drivers of a visitation schedule are often the geographical location of the non-custodial parent and that parent's hours of work. The details of visitation are inherently tied to the work schedules and living arrangements of the parents. In the fluid and rapidly changing environment of modern employment, such changes may occur with considerable frequency. A schedule of, by example, Monday, Wednesday, and Friday night visitation is practical and workable when the parents live in close proximity. If one parent relocates, or the non-custodial parent is required to change shifts, the same schedule may become unworkable. Such changes in the schedule or location of a parent would appear far more likely to occur than the circumstances justifying a change of custody. A change in a visitation schedule is also usually a much less disruptive event than a change in custody. The public policy expressed in § 110.1 and § 112(A) is not served by placing obstacles in the way of visitation when a change in schedule is justified by the circumstances. That policy is not served by requiring a non-custodial parent who is relocating in good faith to prove that a child will be substantially better off if the visitation schedule is changed so that the court-ordered visitation can simply continue .
III. THE POLICY BEHIND GIBBONS IS NOT IMPLICATED HERE
¶21 The policy behind the Gibbons decision is also clear. A certain fraction of non-custodial parents will never accept or make peace with a court's custody decision. If the disgruntled parent has substantial means, the result will be a regular stream of motions seeking to change custody, each arguing that the best interests of the child require a change. The "material change of circumstance" and "substantially better off" criteria accord "some degree of finality to factual and legal determinations made in [child] custody matters, which if absent would lead to constant relitigation of matters already determined." Boatsman v. Boatsman , 1984 OK 74, ¶ 15, 697 P.2d 516. Changes in a visitation schedule justified by circumstances do not appear to pose the same risk, however.
IV. APPLICATION OF GIBBONS IN THIS CASE IS INEQUITABLE TO THE RELOCATING NON-CUSTODIAL PARENT
¶22 A further anomaly in requiring a non-custodial parent to show a material change in circumstances and that the best interests of the children will be served by continuing visitation before a court will consider changing a visitation schedule because of relocation appears when the law applicable to the relocation of the custodial parent is considered.
¶23 The law appears to have recognized a general constitutional right for a custodial parent to relocate (and hence necessitate a change in the non-custodial parent's visitation in most circumstances) without this move being considered a "change in circumstances." Kaiser v. Kaiser , 2001 OK 30, ¶ 33, 23 P.3d 278, held that a "custodial parent's decision to move from Oklahoma to a different location with the child is not in itself a change of circumstances which will justify a change of custody," i.e. , it is not a change of circumstances pursuant to Gibbons . If a relocation by the custodial parent makes the current visitation schedule impractical, a court may, and usually must, order a change in the visitation schedule. It does so without the need for the Gibbons test to first be satisfied. The non-custodial parent is granted a right to have a new visitation schedule drawn up on the basis of the custodial parent's relocation simply because the relocation was in good faith and has made the prior schedule impractical or inappropriate .
¶24 Mother argues that a relocation by the non-custodial parent should not be granted equal treatment, in that a non-custodial parent who relocates does not have the same right to have a new visitation schedule drawn up merely on the basis of a good-faith relocation. Inherent in the Gibbons test is that a relocating non-custodial parent must prove that the children would be better off if the schedule was changed to allow continuing visitation.
¶25 The non-custodial parent presumably has the same constitutional right of good faith relocation without penalty as the custodial parent. If the custodial parent relocates, however, that parent is prima facie entitled to require a change in the visitation schedule merely by showing a "good faith" relocation. Under Mother's argument, the non-custodial parent, meanwhile, must prove, on every good faith relocation, that the children would be "substantially better off " if the visitation schedule were changed so that visitation remains practical. We are not prepared to sanction such unequal treatment.
¶26 Further, the application of Gibbons in the circumstances presented here would reverse the initial statutory requirements and burden regarding visitation if a schedule change is requested. Pursuant to 43 O.S. § 112(A), "Unless not in the best interests of the children , a court should provide for the visitation of the noncustodial parent." (Emphasis added). The Gibbons criteria indicate that if the current visitation schedule becomes impractical, the burden is on the relocating non-custodial parent to prove that visitation is still necessary , i.e. , that the child would be substantially better off if the visitation schedule were changed to allow visitation to continue . The entire question of visitation is put up for decision every time a relocation of the non-custodial parent makes the current schedule unworkable. This appears to encourage a policy quite the opposite to that of providing "some degree of finality to factual and legal determinations made in [child] custody matters, which if absent would lead to constant relitigation of matters already determined." Boatsman , 1984 OK 74, at ¶ 15, 697 P.2d 516.
V. GIBBONS DOES NOT APPLY IN THESE CIRCUMSTANCES
¶27 Our inquiry has also shown that the Supreme Court has never required that the Gibbons test be utilized in these circumstances, or in any parent-parent case involving a change in visitation schedule. There may be circumstances in which some form of the Gibbons test would be appropriate. By example, a substantial change in the amount of visitation or changing visitation from weekly to a block of time in the summer, has the potential to be disruptive to a child's life and may be equated to a change in custody requiring the Gibbons test. Equally concerning would be a situation where a younger child would go from home visitation to being required to fly cross-country. The "best interests" question would become far deeper in these circumstances.
¶28 The situation we are faced with here, however, is a common one where a good-faith relocation of a parent has allegedly rendered the existing visitation schedule impractical, and relatively minor changes were requested. In these circumstances, common sense alone appears to require that the relocation of a non-custodial parent should be treated as equitably as the relocation of a custodial parent in terms of a visitation schedule.
¶29 As always, the best interests of the children remain paramount. But we do not agree that a parent who has been granted visitation, but whose visitation schedule has been rendered unworkable by a good faith relocation (and, hence, who could de facto lose all or a portion of visitation) should be required to prove that the children would be substantially better off if the visitation schedule were changed to allow visitation to continue , which is the heart of the Gibbons test. We would therefore apply a set of criteria to requested changes in a visitation schedule due to a good faith relocation, as follows:
1) Is the relocation made in good faith, i.e. , is it for a legitimate purpose, and not primarily for the purpose of changing a visitation arrangement?
2) If so, has the good faith relocation made the existing visitation schedule impractical, burdensome, or otherwise difficult to follow?
3) If these first two tests are met, the burden then shifts to the custodial parent to show that a requested change in the visitation schedule would not be in the best interests of the child.
VI. THE TRIAL COURT'S DECISION IN THIS CASE
¶30 Pursuant to the above standard, Father was first required to show a good faith relocation that rendered the existing visitation schedule impractical. The record indicates that he did so. Next, the district court applied the second prong of the Gibbons test, which would require Father to show that the children would be substantially better off if the visitation schedule was changed to make visitation easier. As a result of the rule promulgated here, the Gibbons test is no longer appropriate in these circumstances. If the first two requirements are met, the burden shifts to the non-relocating parent, in this case Mother, to show that a change in schedule is not in the children's best interest.
¶31 In this case, relying on the Gibbons criteria, the trial court determined that Father was required to show that the children would be substantially better off if the visitation schedule were changed, and upheld Mother's demurrer to Father's evidence. The burden was misplaced, and Mother was not given the opportunity to show that a change in schedule would be against the children's best interest.
VII. MOOTNESS
¶32 Since this appeal was filed, the Supreme Court has ordered that a second appeal in the underlying action be made a companion to this appeal. The docket sheet and petition in error in that case, Case No. 119,021, indicate that the trial court has now modified the visitation schedule pursuant to Father's request, and Mother is appealing that decision. In that appeal, Mother argues the court erred in not applying the Gibbons criteria. As such, the correct standard for a modification of visitation remains at issue in these cases, and the matter is not moot.
CONCLUSION
¶33 The trial court should not have applied the Gibbons test to the circumstances presented below, and its decision based on that test is hereby reversed. Because the trial court apparently modified visitation subsequent to its order that is the subject of this appeal, however, we find no need to remand this matter and will deal with the visitation issue further in the companion appeal, Case No. 119,021.
¶34 REVERSED.
WISEMAN, C.J., and HIXON, J., concur.