AUGUST 2026 | 13 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. mean that the government cannot regulate or can never interfere with parental decision-making with regard to the custody, care, and control of children.44 It simply means that such a government action, to be upheld as constitutional, must be a narrowly tailored means of achieving a compelling government interest.45 Compelling Interest Child welfare is a compelling government interest. Each state government has a parens patriae power that enables it to take actions that protect individuals who are not competent to act on their own behalf.46 Although the origins of the parens patriae power in common- law England were somewhat limited, it has expanded over time to give vast powers for states to act on behalf of these individuals, including children.47 When exercising this power on behalf of a child or other incompetent individual, the state generally tries to make the decisions that the individual would make if fully competent.48 The interest in the welfare of the child is twofold here. First, the court needs to ensure that the outcome of the proceedings will be in the best interest of the child.49 The best interest of the child is a fact-intensive assessment that requires the court to gather information about the child’s perspective, relationships, and experiences. To do this, the court must hear from the child, provided they have reached a certain age or level of maturity.50 In Oklahoma custody proceedings, trial courts are found to err when they do not to permit children with an intelligent preference to express them.51 In camera interviews and GALs serve the interest in child welfare by enabling the court to assess the child’s preferences. As part of the best interests assessment, the court must also “consider evidence of domestic abuse, stalking and/or harassing behavior properly brought before it” and moreover must apply “a rebuttable presumption that it is not in the best interest of the child to have custody, guardianship, or unsupervised visitation granted to the person against whom domestic abuse, stalking or harassing behavior has been established.”52 Such evidence could be obtained via in camera interviews and GALs. The admission of protective order statements under 12 O.S. §2803.3 represents an additional avenue to obtaining potentially helpful information about domestic abuse. Second, the court needs to protect the well-being of the child during the proceedings. The government does not want the child to be drawn too much into the conflict of their parents or the adversarial system of the court.53 The government may also be concerned about how children who are victims of abuse might be revictimized by the legal process.54 But even in custody cases where the child has not been abused, the judge is concerned about protecting the child from traumatization resulting from the legal proceedings.55 Ensuring that the child does not have to testify in open court is one way of shielding them from what could be a traumatizing experience.56 In camera interviews and GALs are thought to shield the child from conflict and trauma, but the admission of protective order statements under 12 O.S. §2803.3 might be considered to do the same since the child would seemingly not be required to corroborate the evidence. Narrowly Tailored Means There are several explanations for why the rules of evidence could be relaxed in family law proceedings, while still being a narrowly tailored interference with parental rights. First, juries are rare in the family court and judges are more trusted to assess reliability accurately and fairly.57 Second, as a practical matter, hearsay is sometimes the only way – or at least the only way that will not be unduly time-consuming and costly – to access crucial and comprehensive information about the best interest of a child.58 This practical concern is especially pressing in cases involving child sexual abuse.59 There is a danger, however, of relaxing the rules too much, in ways that are neither good nor necessary.60 Timothy M. Tippins & Lauren K. DeLuca have asserted that the result of this relaxation is the “destruction of evidentiary integrity, the erosion of the trial process, and the immolation of due process on the altar of expediency.”61 If hearsay statements arriving in court via in camera interviews and the GALs are already cause for concern both about due process rights and about the reliability of evidence, the admission of protective orders statements as evidence without any additional safeguards will likely be fertile ground for constitutional challenges. Practitioners should be aware of this possibility and consider presenting additional grounds for admissibility of evidence to protect cases on appeal. As discussed in a previous article,62 the Oklahoma Legislature had to address a similar issue after the passage of 28 O.S. §2803.1, a statute also located in the Oklahoma Evidence Code.
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