The phrase “primary custodian” can carry significant weight in Oklahoma child custody matters, even though it does not appear in the statutes and is only occasionally referenced in appellate decisions. For practitioners outside the family law arena, this can be a source of confusion: How can a term with little statutory grounding exert such influence in custody disputes? The reality is that, while Oklahoma law formally recognizes legal custody categories such as joint legal custody, joint physical custody and sole custody, litigants and their counsel frequently focus their battles on the label of “primary.”

This designation is more than a semantic flourish. Parties often believe – sometimes rightly or wrongly – that being identified or designated as the “primary parent” will shape issues such as relocation disputes, school district determinations or how day-to-day parenting authority is perceived. For lawyers navigating custody negotiations and litigation, understanding the practical use and limits of this term is essential. Even though it lacks a codified definition, “primary” status can be very important in certain custody arrangements. This article addresses how that term is used and the significance under statute and precedent.

Custody of a child is a broad term that generally means the right to care and control the child.[1] The concept of child custody “embraces the sum of parental rights with respect to the rearing of a child.”[2] Outside the juvenile deprived and delinquent arenas, there are two major statutory titles that deal with child custody in Oklahoma: Title 10 and Title 43. Oklahoma Statutes recognize three types of custody: joint legal custody, joint physical custody and sole custody.[3] When awarding custody or appointing a general guardian for a child, Okla. Stat. tit. 43 §109 requires courts to “consider what appears to be in the best interests of the physical and mental and moral welfare of the child.” Recently, Okla. Stat. tit. 43 §110.1 was amended by the Legislature in a way that has been viewed as part of a national trend toward a presumption for joint custody and shared parenting for divorcing parents.

No Oklahoma statute references a “primary” parent. The concept of a “primary” parent is a creature of case law and artful lawyering. The notion of which parent is a “primary physical custodian” took on special significance in 2017, when the Oklahoma Supreme Court issued the Boatman decision.[4] When parents share joint legal custody, and one parent asks to relocate with a minor child, the trial court “must make a determination regarding who is the primary physical custodian.”[5]

In light of the progressive amendment of Okla. Stat. tit. 43 §110.1 and a general trend toward joint custody, the “primary” designation has become a new battleground for child custody disputes. As the Oklahoma Statutes do not use the word, a preliminary question is, “What does ‘primary’ mean?” Does it mean which parent has more time? Does it mean which school district the child attends? Does it mean who receives child support? Does it mean which parent has final decision-making authority?

In Boatman, the Oklahoma Supreme Court found that the mother was not the primary physical custodian because the child’s primary residence was not designated in any court order and because the child resided equally with both parents.[6] Pre-Boatman appellate decisions shed some light on who may be a primary parent. In a same-sex case, Ramey v. Sutton,[7] Ms. Ramey was characterized by the Oklahoma Supreme Court as the primary caregiver for the following reasons:

During the first four years of their child's life, Ramey was the primary caregiver due to Sutton's work and sleep schedule. Ramey assisted in caring for their child following a tonsillectomy as well as providing other health care related needs. Their child has always referred to Ramey as "mom," but did not begin to refer to Sutton as "mom" until the age of five or six. Even today, their child will sometimes refer to Sutton, the biological mom as Kimberly and not as "mom." Ramey has always been and continues to be listed as "other parent" at her son's school. She was active in her child's school, serving as home room mother, volunteering for school activities including hosting class parties. Ramey has also built family traditions incorporating their child's love of the outdoors.

In a pre-Boatman relocation case, Scocos v. Scocos,[8] the mother was characterized as “always the Child’s primary caregiver, making all the necessary decisions for the Child’s well-being.” In yet another relocation case, Le v. Nguyen,[9] the mother was characterized as the primary custodial parent for the following reasons: The children spent the majority of their overnights with the mother, and the mother was responsible for the majority of the mundane, but essential, tasks of day-to-day parenting, including taking the children to the doctor, getting them ready for bed and helping them with school. The father's role was described as significant. He addressed many of the extracurricular needs of his children, especially with regard to sports, and spent considerable time with the children, often picking them up from school and providing tutoring. However, under the facts of that case, the mother was determined to be the primary parent.

Since Boatman, the question remains: If a decree grants joint custody but fails to label a "primary" parent, how does a court decide who holds the presumptive right to relocate? Absent a court order designating one parent as the “primary physical custodian,” the primary parent inquiry is largely backward-looking. It is a highly fact-sensitive analysis based on the minutiae of day-to-day parenting and decision-making. What does “primary” not mean? It may not have anything to do with which parent pays or which parent receives child support. It is well established that even a custodial parent may be the child support obligor.[10] Unless it is specifically defined, designating a parent as “primary” in a joint custody plan does not necessarily mean that parent has more time than the other, nor does it give that parent superior decision-making authority or final say in any respect.

A 2021 unpublished decision from the Oklahoma Court of Civil Appeals, In re the Marriage of Dressler,[11] provided a definition of “primary physical custodian.” In Dressler, the parents shared joint custody under a decree that stated the mother “shall be the physical custodian of the child at all times not specifically granted to [the father],” which resulted in the mother having the child for a majority of overnights (64.4%). When the mother provided notice of her intent to relocate, the trial court determined that the father should be the primary physical custodian, which then, in the trial court’s view, rendered the relocation issue moot. The mother appealed.

In Dressler, the Court of Civil Appeals reversed the trial court’s decision, finding it was an abuse of discretion. The appellate court clarified that the trial court’s first step should have been to determine “who is the primary physical custodian,” not who should be going forward. The appellate court suggested that this is a retrospective view rather than a current or prospective one. The panel interpreted the phrase “primary physical custodian” to “simply mean the parent who has actual physical custody of the child the majority of the time.” This decision underscores that the primary parent inquiry is a fact-based, historical analysis focused on the allocation of time rather than a forward-looking best interests analysis at the start of a relocation case. In a partial dissent, one judge noted that based on the court’s own definition and the undisputed facts, the mother was already the primary physical custodian, and the case should have been remanded to proceed with the relocation hearing.

In a recent unpublished opinion, Bugg v. Bugg,[12] an appellate panel answered the "primary" question in part by looking to definitions from the Child Support Guidelines. In Bugg, the Court of Civil Appeals held that in the absence of a specific designation, the parent with more than 182 overnights is automatically the "custodial parent" with the presumptive right to relocate. Because the mother had the children for 209 days, the court found she was the de jure custodial parent and granted her the presumptive right to move.

The appellate panel’s reference to 43 O.S. §118A raises an important question regarding statutory intent. Section 118A includes the definitions for the child support guidelines, and its definitions are designed to calculate financial obligations. Historically, Oklahoma courts have distinguished between financial support and physical caretaking. As noted above, it is possible for a parent to have more time than the other yet be the child support obligor.[13] In Bugg, the mother had more time with the children than did the father. She could have been determined to be the primary parent as a matter of parenting time without reference to the child support definitions statute. By connecting the right to relocate to the 182/183-day child support threshold, Bugg unnecessarily risks conflating child support definitions with custody and parenting time concepts. This application could inadvertently grant relocation presumptions to parents who have the time, including just one more overnight in a calendar year, but perhaps not the primary responsibility (doctor visits, school enrollment, etc.). While Bugg is unpublished and, therefore, not binding precedent, it illustrates the difficulties associated with determining who is a primary parent in hindsight when neither parent has an express designation in the court order.

As indicated by statutory silence and case law, there is no requirement that, in the event of divorce or separation, either parent should be designated “primary” for any purpose, unless the parties so agree or the court makes that determination. When designating a parent as “primary” in a child custody order, the term should be defined. If the parents share joint custody and equal time, state what “primary” means. It may be limited to determining the school the child will attend. If the intent is to give a parent final decision-making authority, the order should clearly state that. When joint custody and equal time are contemplated, but one parent wants to be the “primary” parent, find out what they mean. Are they contemplating future relocation? If so, it may be more efficient to address that issue head-on during the negotiation process rather than later, in hindsight.

For practitioners, the lesson is straightforward but vital: Whenever “primary” status is at issue, do not assume a shared understanding of what the term means. Clarify whether it refers to school district designation, day-to-day caregiving, relocation considerations or something else entirely. Where possible, define it explicitly in orders and agreements, thereby avoiding ambiguity and preventing future disputes. By treating the term with precision, lawyers can better serve their clients, anticipate potential areas of conflict and ensure that custody arrangements reflect the best interests of the child.

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ABOUT THE AUTHOR

Aaron Bundy of Sapulpa is a trial lawyer who practices across Oklahoma, Arkansas and Missouri. Board-certified for family law trial work by the National Board of Trial Advocacy, he focuses primarily on contentious jurisdictional matters and complex financial disputes. Mr. Bundy is a fellow of the American Academy of Matrimonial Lawyers and the International Academy of Family Lawyers.

 

 

 

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ENDNOTES

[1] Spencer v. Spencer, 567 P.2d 112.

[2] Looper v. McManus, 581 P.2d 487 (citing Spencer).

[3] Okla. Stat. tit. 43 §112(C)(2).

[4] 2017 OK 27.

[5] Id. at ¶6.

[6] Boatman, above, at ¶7.

[7] 2015 OK 79.

[8] 2016 OK 36, ¶15, 369 P.3d 1068.

[9] 2010 OK CIV APP 104, ¶13.

[10] Okla. Stat. tit. 43 §118E; State v. Coldwater, 2016 OK CIV APP 3.

[11] Case No. 118,522.

[12] Case No. 122,448.

[13] Okla. Stat. tit. 43 §118E; State v. Coldwater, 2016 OK CIV APP 3.