Volume 82 u No. 20 u August 6, 2011

ALSO INSIDE •  Justice Commission • Board of Governors 2012 Vacancies

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1769 At the end of the day... Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you?

• Does your firm’s 401(k) include If you answered no to any of professional investment fiduciary these questions, contact the services? ABA Retirement Funds Program • Is your firm’s 401(k) subject to learn how to keep a close to quarterly reviews by an watch over your 401(k). independent board of directors? Phone: (800) 826-8901 • Does your firm’s 401(k) feature email: [email protected] no out-of-pocket fees? Web: www.abaretirement.com

Who’s Watching Your Firm’s 401(k)?

The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (800) 826-8901, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Oklahoma Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program.

C11-0318-012 (3/11)

1770 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Theme: Children and the Law Editor: Sandee Coogan contents Aug. 6, 2011 • Vol. 82 • No. 20 pg. 1846 Sovereignty Symposium Photo Highlights Departments 1772 From the President 1850 Law Practice Tips 1852 Ethics/Professional Responsibility 1853 OBA Board of Governors Actions 1862 Oklahoma Bar Foundation News 1865 Lawyers for Heroes 1868 Access to Justice Features 1869 Young Lawyers Division 1775 Children and Divorce: A 31-Year 1871 Calendar Retrospective 1873 For Your Information By Robert G. Spector 1876 Bench and Bar Briefs 1783 Competency in Juvenile Delinquency Proceedings 1880 In Memoriam By Mary Sue Backus 1884 Editorial Calendar 1793 Child Preference: When, How and 1888 The Back Page Why it Should be Considered By Noel K. Tucker 1803 Grandparental Visitation: In a Child’s Best Interest? By Maren Minnaert Lively 1811 So You Think You Want to be a Guardian Ad Litem? By Michael D. Johnson 1817 Children and School Law By Julie Miller, Shelley Shelby, James Murray and Jessica Sherrill 1821 Guardianship of Minors By Evan Taylor pg. 1843 Oklahoma Justice 1829 Best Interest Advocacy in Deprived Commission Court: A Necessity By Jennifer M. Warren Plus 1833 Child Advocacy: Helping Children 1843 Oklahoma Justice Commission Who Have a Parent in Prison By M. Scott Carter By Barbara Woltz 1846 Photo Highlights: 1837 Children and Family Law: Sovereignty Symposium A Practitioner’s Resource Guide 1848 Board of Governors 2012 Vacancies By Jennifer Stevenson Prilliman

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1771 FROM THE PRESIDENT How I Spent My Summer Vacation By Deborah Reheard

The summer vacation of a bar president is a benefit of seeing friends from unique experience. Four different states and a foreign across the state and getting re- country in eight weeks, airports, rental cars, cab rides, quired CLE credit. awards banquets, hotel conference food and speeches. The purpose of the travel-filled summer? To attend neighbor- But times have changed and ing states’ and the American Bar Association’s annual some no longer believe the Annual meetings. Meeting is a must- attend event. We can In June, July and August, I now get most of our attended the Arkansas, Texas The rewards of CLE online. We can and Louisiana State Bar Associa- stay in touch with tion meetings and the ABA my travels friends across the state annual meeting in Toronto, Can- should be evident with Facebook, Twitter ada. The travel schedule was so and Skype. We are busy intense, I woke up a few times in this year’s people, and it is diffi- wondering where I was. I have a cult taking two or three new found appreciation for OBA Annual days out of our prac- those who make their living on Meeting to be tices and our lives. the road. And I think someone could make a lot of money held in Tulsa So, we surveyed law- inventing a cell phone wake-up yers, borrowed ideas alarm app that says, ”Good Nov. 2-4. from other states and morning. It is 6 a.m., and you are have taken the extra- in San Antonio at the State Bar of curricular activities up Texas Annual Meeting.” a notch or two! We will have great tracks of CLE on Wednesday The rewards of my travels should be evi- including a charm school for law- dent in this year’s OBA Annual Meeting to yers and an ethics follies musical. A be held in Tulsa Nov. 2-4. The newly remod- trial college for lawyers of all expe- eled and rebranded Hyatt Regency will be rience levels has been added this our host hotel. The Annual Meeting will be year and will run from Thursday bigger and better, and I hope will rekindle afternoon through Friday. We have attendance at the yearly gathering of our also added a tech fair to the Friday association. schedule. Come to Annual Meeting I have missed a few annual meetings in this year, and you can get ALL of my nearly 25 years of practicing law — but your CLE for the entire year at a not many. I found myself on many of the great price. flights and during airport downtime think- Thursday morning we will begin President Reheard ing of why my mentors encouraged me to with another new event — the practices in Eufaula. go, why I went and why I think you should [email protected] Bench and Bar Breakfast. Judges (918) 689-9281 go, too. The main reason for the Annual attending the annual judicial con- Meeting is to do to the association’s busi- ference just a few blocks away will ness — elect officers, and pass resolutions join us for breakfast and the joint that often eventually become legislation plenary session featuring the real and new laws. And then there is the added continued on page 1842

1772 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 OFFIC ERS & BOARD OF GOVERNORS Deborah A. Reheard, President, Eufaula Cathy M. Christensen, President-Elect, events Calendar Reta Strubhar, Vice President, Piedmont Allen M. Smallwood, Immediate Past President, AUGUST 2011 Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami 8 OBA Rules of Professional Conduct Subcommittee Meeting; Renée DeMoss, Tulsa 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Paul Middleton Gerald C. Dennis, Antlers (405) 235-7600 Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City 9 OBA Law-related Education Task Force Meeting; 3 p.m.; Oklahoma O. Chris Meyers II, Lawton Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Lou Ann Moudy, Henryetta Reta Strubhar (405) 354-8890 D. Scott Pappas, Stillwater David A. Poarch Jr., Norman OBA Rules of Professional Conduct Subcommittee Meeting; Ryland L. Rivas, Chickasha 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Paul Middleton Susan S. Shields, Oklahoma City (405) 235-7600 Roy D. Tucker, Muskogee, Chairperson, OBA/Young Lawyers Division 10 OBA Diversity Committee Meeting; 12 p.m.; Oklahoma Bar Center, BAR Center Staff Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jeff Trevillion John Morris Williams, Executive Director; (405) 778-8000 Gina L. Hendryx, General Counsel; OBA Government and Administrative Law Practice Section Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Communications; Craig D. Combs, Director of Bar Center, Tulsa; Contact: Bryan Neal (405) 522-0118 Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance 11 OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Program; Beverly Petry Lewis, Administrator Bar Center, Oklahoma City and OSU Tulsa; Contact: Rick Goralewicz MCLE Commission; Jane McConnell, Coordinator (405) 521-1302 Law-related Education; John Burchell, Information Services Manager; Loraine Dillinder Farabow, OBA Solo and Small Firm Committee Meeting; 3:30 p.m.; Debbie Maddox, Ted Rossier, Assistant General Oklahoma Bar Center, Oklahoma City with teleconference; Contact: Counsels; Katherine Ogden, Staff Attorney, Jim Calloway (405) 416-7051 Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators OBA Women Helping Women Support Group; 5:30 p.m.; The Oil Manni Arzola, Debbie Brink, Stephanie Burke, Center – West Building, Suite 108W, Oklahoma City; RSVP to: Kim Reber Brenda Card, Morgan Estes, Johnny Marie (405) 840-3033 Floyd, Matt Gayle, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, 12 Oklahoma Association of Black Lawyers Meeting; 12 p.m.; Amy Kelly, Jeff Kelton, Durrel Lattimore, Oklahoma Bar Center, Oklahoma City; Contact: Donna Watson Debora Lowry, Heidi McComb, Renee (405) 721-7776 Montgomery, Wanda Reece-Murray, Lori Rasmussen, Tracy Sanders, Mark Schneidewent, OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Robbin Watson, Laura Willis & Roberta Yarbrough Oklahoma City and OSU Tulsa; Contact: Kimberly Hays (918) 592-2800 EDITORIAL BOARD 16 OBA Civil Procedure and Evidence Code Committee Meeting; Editor in Chief, John Morris Williams, News 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: & Layout Editor, Carol A. Manning, Editor, James Milton (918) 591-5229 Melissa DeLacerda, Stillwater, Associate Editors: Dietmar K. Caudle, Lawton; Judge Sheila 18 OBA Justice Commission Meeting; 2 p.m.; Oklahoma Bar Center, Condren, Claremore; Sandee Coogan, Norman; Oklahoma City; Contact: (405) 235-5563 Emily Duensing, Tulsa; Erin L. Means, Enid; Pandee Ramirez, Okmulgee; Leslie D. Taylor, For more events go to www.okbar.org/calendar Oklahoma City; Joseph M. Vorndran, Shawnee; January Windrix, Poteau The Oklahoma Bar Association’s official website: NOTICE of change of address (which must be www.okbar.org in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082011 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association (405) 416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free (800) 522-8065 FAX (405) 416-7001 a month in january, February, March, April, May, August, Septem- Continuing Legal Education (405) 416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel (405) 416-7055 July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, General Counsel (405) 416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Law-related Education (405) 416-7005 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Lawyers Helping Lawyers (800) 364-7886 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mgmt. Assistance Program (405) 416-7008 tions are $55 per year except for law students registered with the Mandatory CLE (405) 416-7009 Oklahoma Bar Association, who may subscribe for $25. Active mem- OBJ & Communications (405) 416-7004 ber subscriptions are included as a portion of annual dues. Any Board of Bar Examiners (405) 416-7075 opinion expressed herein is that of the author and not necessar- Oklahoma Bar Foundation (405) 416-7070 ily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1773 1774 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW Children and Divorce: A 31-Year Retrospective By Robert G. Spector

arrived in Oklahoma over 30 years ago to join the faculty of the College of Law after 13 years of Iteaching at Loyola University of Chicago. At that time the course in family law was looking for a teacher and I was looking for a permanent home in the curriculum.1 It turned out that it was one of the better marriages. Like all marriages it changed signifi- cantly over time. The course that I teach now bears almost no relationship to the one that I taught back then.2 There have been extraordinary developments in all aspects of family law. For example back in 1980, pensions, now the largest asset of most marital estates, were not even considered marital property.3 How- ever, the largest changes have come in the area of children’s law, particularly the law applicable to children in divorce cases.

THE WAY IT WAS THEN tests concerned third-parties in situations where parents had abandoned their children and There were significant discrepancies in inter- wished to retrieve them at a later time.7 state child custody cases. The Uniform Child Custody Jurisdiction Act had yet to be enacted Child support was thought of as an adjunct to in Oklahoma. And no one had any conception the alimony determination. It was based on the that there could be custody problems with inter- child’s needs and the non-custodial parent’s national developments. ability to pay. The award was so discretionary that there were very few appeals. The federal Child custody in cases involving parents was government had yet to be heard from, in any based on the “tender years” presumption which area of family law, and the thought that child provided that, all things being equal, a child of support would ultimately be dictated from tender years was to be given to the mother.4 Washington, D.C., was not in anyone’s mind.8 Fathers usually only received custody if the mother was unfit.5 However, if the child was old During those first few years of teaching family enough to learn a trade, custody was to be given law, I could cover all the children’s issues in to the father, an aspect of the tender years pre- divorce in two or three weeks and spend most of sumption that was rarely applied. Because of the my time on various procedural issues, wonder- presumption, custody battles between parents ing whether this course actually deserved three were extremely rare.6 The major custody con- credits.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1775 All this has now completely changed. It takes a full six hours to cover family law and even then it is not possible to cover everything that A Tribute to Retiring Professor should be covered. There never seems to be Robert G. Spector quite enough time to talk about adoptions or deprived children. By Ginny Henson THE WAY IT IS NOW: JURISDICTION 9 Robert Spector has been an invaluable resource AND PROCEDURE for Oklahoma lawyers during his tenure at the Some regularity was brought into the inter- University of Oklahoma. In addition to his contri- state custody mess when Oklahoma finally butions to the Family Law Section of the Oklaho- adopted the Uniform Child Custody Jurisdic- ma Bar Association, including yearly updates of Oklahoma appellate decisions at the OBA Annu- tion Act.10 Its enactment did not totally solve al Meeting, and countless CLE presentations, Bob the problem of the interstate child due to the has helped to advance national and international fact that states construed the act differently. family law. He has been active in the ABA’s Fami- Congress, for only the second time in our his- ly Law Section, serving on the governing council. tory, implemented the Full Faith and Credit He authored Oklahoma Family Law published by Clause by enacting the Parental Kidnapping Imprimatur Press and has authored more than 100 Prevention Act11 to require interstate enforce- articles on family law. He serves as the associate ment of custody determinations that were con- editor of the Family Law Quarterly and is a mem- sistent with the jurisdictional principles of that ber of the Board of Editors of Divorce Litigation act. The relationship between the PKPA and and the American Journal of Family Law. Bob is the UCCJA was extremely complicated and the reporter for the Uniform Child Custody Juris- there was the possibility that the PKPA actually diction and Enforcement Act and the Family Law preempted some of the UCCJA.12 To help solve Joint Editorial Board for the National Conference of Commissioners on Uniform State Laws. He was this problem, the Uniform Law Commission also a member of the U.S. delegation which par- drafted a replacement for UCCJA, called the ticipated in the drafting of the Hague Convention Uniform Child Custody Jurisdiction and on International Child Abduction and other Enforcement Act, under the leadership of the Hague Conventions dealing with family issues. late Justice Marian Opala. Oklahoma became Both the U.C.C.J.E.A. and the Hague Conven- the second state to enact the UCCJEA.13 tions have helped strengthen family law in Okla- homa, the United States and the world. The federal government also recognized that custody disputes can cross international bound- Bob has made us all better family lawyers. aries. It ratified the 1980 Hague Convention on From his legislation and case law updates at the Civil Aspects of International Child Abduc- the OBA-FLS monthly meetings, to his current tions, requiring, under certain circumstances, case updates which are emailed to all Family children to be returned to the country of their Law Section members, he insures that we all habitual residence who would make the cus- have current information and advance warning 14 about objectionable legislation. He has trained tody determination. Work in this area contin- a legion of future family lawyers as the Glenn ues with the United States signing the 1996 R. Watson Centennial Chair in Law at the Convention on Jurisdiction, Applicable Law, University of Oklahoma. Recognition and Cooperation with Regard to Measure for the Protection of Minors. This Con- But most of all, Bob loves family law. Although vention will be implemented through a revision family law is an area of law that is often over- of the UCCJEA, which is already underway. The looked and maligned, Bob believes passionately that nothing in the law is as important as the also ratified the 2007 Hague protection of children and families. He has devot- Convention on the International Recovery of ed his career to education, not only as a law pro- Family Maintenance. This convention will be fessor, but also as an educator of practicing lawyers implemented by requiring states to adopt the and judges. We are all better lawyers because we 2008 version of the Uniform Interstate Family knew Bob, professionally and personally. Support Act. It is becoming clear that the future of family law will involve a considerable amount Norman attorney Ginny Henson is former chair- of international practice. person of the OBA Family Law Section.

1776 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 THE WAY IT IS NOW: SUBSTANTIVE seems to indicate that the use of a generic joint CUSTODY LAW custody to settle cases has produced more Substantive custody law has changed radi- post-decree problems than might be the case if cally in Oklahoma over the last 31 years. The sole custody were awarded in the first place. tender years presumption was repealed in 1983 One of the reforms that should be tackled in and replaced by a “best interest of the child” the immediate future is a total revision of the joint custody statute to modernize it with standard.15 Almost immediately it was realized that this standard allowed the courts almost regard to the differences between joint legal unlimited discretion in determining custody. custody and joint physical custody. Since 1983 Oklahoma law has exhibited two Procedurally there have been a number of tendencies. First, the discretion of the trial innovations that it was hoped would alleviate court, within certain boundaries, is almost the bitterness often involved in custody battles. unlimited. I have been following the decisions This has often involved a cast of characters that of the Court of Civil Appeals, both published were rarely, if ever, seen 31 years ago. It is now and unpublished, for more than 25 years. Dur- common for there to be guardians ad litem for ing this time, appeals of the original custody children,23 as well as parenting coordinators for determination have been affirmed more than the parents.24 Mediation is now often seen as a any other subject of an appeal in a family law preferred alternative for deciding custody case.16 The mere fact that on a particular record cases, especially for post-decree problems the trial court may have been justified in arriv- involving visitation.25 And, parents may be sent ing at a different conclusion is not a reason for to school to learn how to be good divorced reversal. parents.26 All of these innovations have helped Attempts on the part of the appellate court to to reduce the number of custody cases that are reign in the trial court’s discretion have been actually litigated. However, none of them have few and far between. The most notable was the proved to be a panacea and some of them have decision of the Supreme Court in Gorham v. caused problems that were not envisioned at the time of their enactment.27 Gorham17 requiring a “nexus” between parental misconduct and an effect on the child. Since The law with regard to modifications of cus- then there have been fewer and fewer cases tody has not changed very much during the which emphasize misconduct of a sexual nature last 31 years. The court had arrived at the Gib- in determining custody. Some of the attempts bons28 test back in 1968, and the law since then to limit the trial court have come from the Leg- has been mostly involved with working out the islature.18 Most recently there has been the parameters of the test.29 However, a potential enactment of a number of statutes warning substantial change of direction came about in trial courts that domestic violence must be seri- the case Stephen v. Stephen30, where Justice ously considered before making a custody Simms, in a concurring opinion that garnered determination.19 five votes, concluded that the decision of the Secondly, there have been numerous attempts custodial mother to home school the child to improve the process, both procedurally and could not be challenged by the noncustodial substantively. Substantive reforms focused pri- father. The constitutional rights of the custodial parent, said Justice Simms, are extensive and marily on the concept of joint custody,20 which entered Oklahoma law at almost the same time run against the noncustodial parent in the that the tender years presumption disappeared. same way they run against the state. This However, the statute does not distinguish means that unless there is an affirmative show- between joint legal and joint physical custody. ing of harm, the custodial parent, at least with This has meant that most joint custody decrees regard to ordinary parenting decisions, is enti- simply say that the parties have joint custody tled to make decisions that may not be in the without attempting to spell out the responsi- child’s best interests, without fearing a motion bilities of each parent. This has resulted in to modify by the custodial parent. The court Kaiser v. Kaiser31 considerable confusion which most often has appeared to confirm all this in , where it held that a custodial parent has the to be worked out in post-decree motions.21 It also has resulted in a large number of modifi- right to move with the child absent proof of cation of custody motions alleging that the harm to the child from the place where the cus- parents cannot cooperate and therefore the todial parent planned to move. joint custody should be terminated.22 This

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1777 However, it has now been 10 years since the Kaiser decision and the court has yet to follow up on these opinions. This has left the bench and bar in somewhat of a quandary concerning Parentage was totally a number of issues. For example, the Legisla- ture attempted to overrule the Kaiser decision revamped at the same time. when it enacted 43 O.S. §112.3. If the Kaiser decision is constitutionally based, then the stat- Originally these were “bastardy” ute is probably unconstitutional.32 In the absence of any guidance from the court, lower proceedings that were quasi- courts and lawyers are applying the statute.33 Guidance on the effect of Stephen and Kaiser is criminal, brought by the district desperately needed. attorney and tried to a jury. One of the most dramatic developments of the last three decades has been the rise and fall Now juries have been abolished of third-party problems concerning both cus- tody and visitation. Third-party custody issues in parentage cases and the have always been a part of the court’s docket and were the most prevalent custody issue development of DNA has during the early part of Oklahoma’s history.34 During the early 80s, the Supreme Court was made most paternity cases easy very clear that custody could be awarded to a third party only if the parent was shown to be to determine. affirmatively unfit by clear and convincing evi- dence.35 The Legislature, however, attempted to add to the reasons for allowing third-party Court41 and the United States Supreme Court42 custody by adding provisions concerning the decided that allowing trial courts to grant visi- failure to pay child support and failure to tation to grandparents over the wishes of a fit visit.36 The ensuing years were marked by a parent violated that parent’s constitutional right failure of the courts to acknowledge the legisla- to raise their children.43 Third parties, apart from tion. This tendency was exacerbated when the grandparents, who sought visitation were given Supreme Court in McDonald v. Wrigley,37 very short shrift by the courts.44 The result has ignored a long history of cases and determined been a substantial decrease in both grandparent that all third-party custody was meant to be custody, as well as visitation, cases. temporary and that the parent could always THE WAY IT IS NOW: CHILD SUPPORT seek to modify third-party custody by showing that the conditions that lead to the custody There is no question that the most radical determination had been corrected.38 Ultimately changes affecting children of divorce have the Legislature straightened this area out when come in the area of child support. It is not it revised Title 10 in 2009 by clearly delineating going too far to say that there is almost nothing when third parties could receive custody and left of the law of child support as it existed in that the Gibbons test was applicable to modifi- 1980. When Congress determined that its role cations unless the third-party custody had in providing welfare funds for the states was 39 been specifically denominated as temporary. affected by the amount of support that parents The decrease in third-party custody cases were providing their children, it completely was helped by the court’s ruling in third-party, revamped child support through its use of the particularly grandparent, visitation cases. From spending power.45 The first major reform came 1980 through 1988, the Legislature greatly when Congress, as a condition of federal fund- expanded the situations where grandparents ing, required the states to enact laws providing could receive visitation in response to opinions for income assignments.46 More reforms fol- by the Supreme Court which tended to restrict lowed, including the establishment of child grandparent visitation.40 By 1988 the statute support guidelines based on quantitative, rath- allowed “each and every grandparent” to peti- er than qualitative, factors,47 automatic liens,48 tion to receive visitation. Then in 1988 a series of the judgment as a matter of law statute,49 the decisions by both the Oklahoma Supreme Uniform Interstate Family Support Act,50 and

1778 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 the payment registry.51 The IV-D agency became homa. We will face issues as to whether to rec- the major player in handling child support ognize custody decrees from places like Ver- cases, dwarfing the number of cases handled mont and Washington awarding custody of, by the private bar. and visitation to, children of same-sex cou- ples.60 Child support in these cases will also be Parentage was totally revamped at the same an issue. Should a Massachusetts same-sex time. Originally these were “bastardy” pro- spouse be able to relocate to Oklahoma to ceedings that were quasi-criminal, brought by escape support obligations?61 If no support the district attorney and tried to a jury. Now order had been established in Massachusetts, juries have been abolished in parentage cases should Oklahoma establish one? Just how and the development of DNA has made most strong is our policy against any recognition of paternity cases easy to determine.52 However, same-sex status relationships? parentage cases still present problems of pre- sumptions, preclusion and estopppel, that can These and other issues that have not even make some of them very difficult indeed.53 been thought about will be in our future. One There is also the entire problem of artificial thing I have learned over the last 31 years is reproductive technology. While Oklahoma was whatever family law is today, it will not be the ahead of most states in providing statutes to same tomorrow. deal with artificial insemination, they are now substantially out of date.54 There are also no 1. At that time the course was called Domestic Relations and taught by Professor Elmer Million and was only two credits. It had statutes dealing with surrogacy, either gesta- historically low enrollment. Since then the course changed its name to tional or traditional, or the problem of what to Family Law, became a topic for the bar examination and a “menu” course for College of Law graduation. The number of students enroll- do with frozen zygotes left over from in vitro ing in the course has increased dramatically. fertilization. 2. The course has also expanded from a three-hour family law course to six hours with the addition of a three-hour course called Children and THE FUTURE the Law which covers custody, visitation and parentage. 3. See Carpenter v. Carpenter, 1983 OK 2, 657 P.2d 646, overruling, for I have become convinced over the last 30 all practical purposes Holeman v. Holeman, 1969 OK 152, 459 P.2d 611. 4. 30 O.S. §11, repealed by Laws 1983, c. 269, § 4. years that Oklahoma needs a well thought out 5. For examples see Miracle v. Miracle, (I) 1961 OK 55, 360 P.2d 712; family law code. Since I have been in Oklaho- Miracle v. Miracle, (II) 1963 OK 259, 399 P.2d 9. 6. As as I look through cases in my Statutes Annotated book, there ma there has been only piecemeal reform in the are only a handful of pre-1980 appellate cases that are still viable prec- Legislature. Statutes tend to be enacted with- edents in the area of child custody. 7. See e.g., Ex Parte Parker, 1945 OK 61, 156 P.2d 584. out anyone examining the relationship of the 8. See Robert G. Spector, “The Nationalization of Family Law: A new statutes to other legislation, or with regard Manual for the Coming Age,” 27 Fam. L. Q. 1 (1993). 55 9. One of the major reasons for the development and change in the to the overall picture. practice of family law was the resurrection of the Family Law Section of the Oklahoma Bar Association in the mid-80s. The section did There was one attempt that produced, for its incredible work in law reform under the early leaders John Hester, time, an extremely good codification. It was Chris Szlichta, Kit Peterson, Rees Evans and Carolyn Thompson. One of the most satisfying aspects of my life over the last 30 years has been produced by the family law section pursuant serving as the consultant to the section. to a legislative proposal.56 However, after two 10. Formerly codified as 10 Okl.St.Ann. §§1601 to 1628, and recod- acrimonious public meetings, the legislative ified by L.1990, c. 188, as 43 Okl.St.Ann. §§501 to 527). 11. 28 U.S.C. §1738A. sponsors of the codification abandoned the 12. The relationship between these two statutes became “technical project. The recent revision of the Children’s enough to delight a medieval property lawyer.” Homer H. Clark, DOMESTIC RELATIONS §12.5 at 494 (2d ed. 1988). and Juvenile Codes indicates that with strong 13. See 43 O.S. §551-101 et seq. legislative leadership57 and a dedicated mem- 14. The treaty was implemented in this country by the International Child Abduction Remedies Act, (ICARA) 42 U.S.C §11601 et seq. bership, comprehensive reform can be accom- 15. Laws 1983, c. 269, §3. plished. Hopefully, another attempt will be in 16. For example last year all appeals from the original custody deter- 58 mination, but one, resulted in an affirmance. The one that did not was an our future. appellant’s brief-only case. Previous years show the same pattern. 17. 1984 OK 90, 692 P.2d 1375. Finally, I would be remiss if I did not men- 18. See e.g., 43 O.S. §§112; 112.2. tion that the family law issue of our times relat- 19. See e.g., 43 O.S. §§109(I); 109.3; 111.1. 20. 43 O.S. §109. ing to children, is the interstate and interna- 21. See Le V. Nguyen, 2010 OK CIV APP 104, 241 P.3d 647 which tional movement of children of same-sex mar- attempted to work out the relationship between joint custody and riages and civil unions.59 Although Oklahoma relocation. 22. The most recent case is Foshee v. Foshee, 2010 OK 85, 247 P.3d has amended our constitution to limit marriage 1162, where the motion to modify out of joint custody was filed only to a man and woman and has indicated that we nine months after the entry of the final decree. 23. 43 O.S. §107.3(A). will not recognize same-sex marriage from 24. 43 O.S. §§120.1-120.7. other states, we will not be immune to children 25. 43 O.S. §107.3(B). of these families moving to and through Okla- 26. 43 O.S. §107.2.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1779 27. For example, while parenting coordinators have proven useful 60. In this area the federal legislation will play a dominant role, in high-conflict child custody cases, the appellate courts have had to particularly the Parental Kidnapping Act, 38 U.S.C. §1738A. See the insist that the parenting coordinator keep to their appointed role and discussion of the act in the important cases of Miller-Jenkins v. Miller- not attempt to take over the judicial function. See e.g., Kilpatrick v. Kil- Jenkins, 912 A.2d 951 (Vt. 2006) cert.den. 127 S.Ct. 1127 (U.S. 2007) and patrick, 2008 OK CIV APP 94, 198 P.3d 406 (parenting coordinator can- Miller-Jenkins v. Miller-Jenkins, 637 S.E.2d 330 (Va. Ct. App. 2006) cert. not change custody); Dilbeck v. Dilbeck, 2010 OK CIV APP 142, 245 P.3d den. 129 S.Ct. 726 (U.S. 2008). 630 (parenting coordinator cannot recommend a custody change). 61. In this context see the Full Faith and Credit to Child Support 28. Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482. Orders Act, 28 U.S.C. §1738B. 29. See e.g., Carter v. Carter, 1982 OK 123, 653 P.2d 207 (temporary relinquishments); Hoog v. Hoog, 1969 OK 174, 460 P.2d 946 (interference with the visitation of the non-custodial parent); Cooper v. Cooper, 1980 OK CIV APP 12, 460 P.2d 929 (drug and alcohol use); Fox v. Fox, 1995 About The Author OK 87, 904 P.2d 66 (custodial parent’s sexual orientation had no effect on the children) 30. 1997 OK 53, 937 P.2d 92. Robert G. Spector is the Glenn 31. 2001 OK 30, 23 P.3d 278. R. Watson Chair and Centennial 32. In Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, 160 P.3d 951, Justice Kauger in a concurring opinion joined by Justice Hargrave Professor of Law at the OU Col- noted that: “The constitutionality of 43 O.S. Supp.2002, §112.3 was lege of Law. He teaches courses on clearly raised, and because the question of the constitutionality of the statute is a recurring problem of great public concern, the Court should family law, children and the law, address it.” conflict of laws, evidence, and 33. For the case setting out the definitive analysis of the relocation child abuse and neglect. He also statute see Harrison v. Morgan, 2008 OK CIV APP 68, 191 P.3d 617. 34. See e.g., Lynch v. Poe, 1916 OK 562, 157 P. 907; Zink v. Miller, 38 writes and lectures extensively on OKL. 751, 135 P. 342 (1913). family law topics and currently 35. See e.g., Grove v. Phillips, 1984 OK 20, 681 P.2d 81. 36. See 10 O.S. §21.1 amended and recodified in 2009 as 43 O.S. serves as vice chair of the ABA’s §112.5 Family Law Committee of the International Law 37. 1994 OK 25, 870 P.2d 777. 38. See e.g., Johnson v. Johnson, 1984 OK 19, 681 P.2d 78. Section. He received his J.D. from the University of 39. See 43 O.S. §112.5 effective Nov. 1, 2009. Wisconsin in 1966. 40. The entire history is set out in In re Baumgardner, 1983 OK 59, 711 P.2d 92 41. In re Herbst, 1998 OK 100, 971 P.2d 395; Neal v. Lee, 2000 OK 547; Scott v. Scott, 2001 OK 9, 19 P.3d 273; Ingram v. Knippers, 2003 OK 58, 72 P.3d 17. 42. Troxel v. Granville, 530 U.S. 57 (2000). 43. The entire area of grandparent visitation has been recodified in 43 O.S. §109.4 to comply with the constitutional decisions. 44. See e.g., Steinberg v. Frentz, 2002 OK CIV APP94, 61 P.3d 907(step-father); Barger v. Brown, 2006 OK CIV APP 47, 134 P.3d 905 (sibling). 45. See Robert G. Spector, “The Nationalization of Family Law: An Introduction to the Manual for the Coming Age,” 27 Fam.L. Q. 1 (1993). 46. 12 O.S. §§1171.2; 1171.3 47. 43 O.S. §§118 - 118I. The Family Law Section played a crucial role in writing the first child support guidelines. 48. 43 O.S. 135 49. 43 O.S. §137. 50. 43 O.S. §§601-101 et seq. 51. 43 O.S. §413. 52. Oklahoma has adopted the Uniform Parentage Act (2000). 10 O.S. §§7700-101 et seq. 53. For earlier cases that probably come out differently under UPA, see Deloney v. Downey, 1997 OK 102, 944 P.2d 312 (presumptions and preclusion); Barber v. Barber, 2003 OK 52, 77 P.3d 576 (estoppel). 54. 10 O.S. §551 et seq. The statutes refer to a married couple. If a single person can adopt is there still a reason why he or she cannot conceive a child through artificial insemination? 55. For example, in 2010 the Legislature amended the guardianship statutes to create something called custody by abandonment in which certain qualified relatives can obtain custody of a child who has been left with the relative. See 30 O.S. §2-107. The Legislature apparently gave no consideration as to how this procedure relates to the third- party custody provisions of 43 O.S. §112.5. 56. Kit Peterson, Carolyn Thompson and Rees Evans played piv- otal roles in the drafting process. I was the reporter. 57. In this case the work of Rep., now Speaker of the House, Kris Steele cannot be underestimated. 58. All of the prior codification is still languishing on my computer. As I reread it, some parts sound somewhat dated while others would be a clear improvement over current law. Particularly helpful would be the part dealing with property division, which currently exists solely as judicial gloss on three sentences in 43 O.S. §121. 59. Six United States jurisdictions recognize same-sex marriage and another eight recognize civil unions which are legally indistin- guishable from marriage for state family law purposes. A large number of countries have recognized same-sex marriage including two on our borders: Canada and Mexico.

1780 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 HOUSE of DELEGATES Delegate and Alternate Names Requested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

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1781 1782 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW Competency in Juvenile Delinquency Proceedings By Mary Sue Backus INTRODUCTION s a matter of due process under the 14th Amendment, a criminal defendant has a constitutional right to be compe- Atent to stand trial.1 In fact, at all stages of the criminal jus- tice process, a defendant must be able to understand the proceed- ings and be capable of consulting with and assisting his lawyer with his defense.2 Although the U.S. Supreme Court has held that the Due Process Clause requires that criminal defendants must be competent, the Supreme Court has never addressed whether that competency requirement applies to juvenile proceedings. Left to their own devices on this issue, an overwhelming majority of states have established, either through statute or case law, a right to competence in juvenile proceedings.3 In fact, experts in the field consider the question to be “settled” and cite Oklahoma as the lone exception.4 In contrast to the overwhelming majority of firmly entrenched in English and American states, the Oklahoma Court of Criminal Appeals legal history with roots dating at least to mid- has found that extending the right of compe- 17th century England. Blackstone, who recog- tency to juveniles is neither appropriate nor nized that a defendant should neither plead nor necessary.5 That conclusion was based on the be tried if mentally defective, wrote that a defen- rehabilitative nature of juvenile proceedings and dant who became “mad” after the commission the court’s confidence in the juvenile system’s of an offense should not be arraigned “because capacity to consider and accommodate issues of he is not able to plead … with the advise and mental health in adjudicating young Oklaho- caution that he ought,” and should not be tried, mans as delinquent. Over two decades have for “how can he make his defense?”6 In the 19th passed since the court staked out what is now an century, U.S. federal courts adopted these Brit- atypical approach to juvenile competency. It ish common law rules virtually intact. Federal may be time to re-evaluate Oklahoma’s outlier courts cited common law authority, for example, position. to hold that “it is not due process of law to sub- ject an insane person to trial upon an indictment THE RIGHT TO COMPETENCE involving liberty or life.”7 Early American deci- The doctrine that a criminal defendant should sions also echoed Blackstone’s concern about the not be tried while mentally incompetent is inability of an incompetent defendant to mount

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1783 a defense, framing the question as whether a incompetence as the “present inability of a per- defendant is able “to properly and intelligently son arrested for or charged with a crime to aid his counsel in making a rational defense.”8 understand the nature of the charges and pro- ceedings brought against him or her and to Thus, the central rationale underlying the effectively and rationally assist in his or her right to competency is that the fairness and 14 accuracy of the criminal process require the defense.” lucid participation of the accused in his own All of the U.S. Supreme Court’s jurispru- defense. Incompetent defendants are unable to dence on the right to competency has been in provide meaningful assistance to their attorney the context of adult criminal defendants. because they may be incapable of discussing Despite its unequivocal insistence that fairness strategy, explaining their side of the case, pro- dictates that incompetent defendant may not viding the names of witnesses, meaningfully be tried, the Supreme Court has never addressed confronting witnesses at trial or rationally tes- the question of whether juveniles are afforded tifying on their own behalf. Of course, ratio- that same due process right. Likewise, the nales other than fairness support the right to Oklahoma general competency statute does competency, such as maintaining the dignity not explicitly address whether it applies to and decorum of the criminal justice system by juveniles. Oklahoma, however, flatly rejected not having incompetent defendants disrupt the the right to competency in juvenile proceed- proceedings. In addition, several justifications ings in the 1989 case of G.J.I. v. Oklahoma.15 for punishment of offenders are weakened if punishment is inflicted on those who cannot Thirteen-year-old G.J.I. claimed that he was comprehend why they are being punished. incompetent to aid his defense attorney at his There is little in the way of specific deterrence delinquency hearing for attempted second or retribution if a defendant does not under- degree rape and that he was entitled to a com- stand what is happening to him and why. petency hearing. The Oklahoma Court of Crim- While these other valid justifications support a inal Appeals endorsed the trial court’s view right to competency, the primary significance that the state’s general competency statutes of competence is the key role it plays in ensur- simply are not applicable to juvenile proceed- ing a fair trial. ings. Despite the fact that G.J.I. had a “demon- strable mental illness,” a low I.Q., suffered With its landmark decision in Dusky v. United from major depression and conduct disorder of States,9 the U.S. Supreme Court crafted a test of incompetence to stand trial that confirmed the adolescence, the court held that it was neither key role competence plays in ensuring a fair appropriate nor necessary to extend the protec- trial: “[T]he test must be whether [a defendant] tions of the competency statutes to his jury has sufficient present ability to consult with his trial, where he was found delinquent. The lawyer with a reasonable degree of rational court based its reasoning on the nature of the understanding — and whether he has a ratio- juvenile proceedings, which they characterized nal as well as factual understanding of the as “specifically not criminal” and “directed proceedings against him.”10 Since the standard toward rehabilitation.” Because G.J.I’s mental established in Dusky, the court has repeatedly disorders were considered by the court and and consistently recognized that the criminal presumably would be a factor in his disposi- trial of an incompetent defendant violates due tion plan, the court found the juvenile proce- process, emphasizing that this basic require- dures were “a comprehensive substitute for the ment is the foundation for a host of other rights competency statutes.” 11 essential to a fair trial. Competence is required Oklahoma is the only state to reject explicitly to exercise vital trial rights such as effective the doctrine of adjudicative competence in assistance of counsel, confrontation of wit- juvenile court.16 Doing something solely nesses and the right to testify or remain silent 12 because everyone else does it is never a good without penalty. reason to change course — just ask your moth- In Oklahoma, this fundamental constitution- er to review the traditional “if-all-your-friends- al right is embodied in a general competency jumped-off-a-cliff” lesson! But, as the only state statute which mirrors the Dusky standard. The to explicitly reject the right, it is reasonable to statute states: “No person shall be subject to re-examine the Oklahoma approach to juvenile any criminal procedures after the person is competency in the face of the overwhelming determined to be incompetent…”13 and defines consensus of virtually every other state and in

1784 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 light of the trends impacting the evolution of lently motivated, is frequently a poor substi- the modern juvenile system. tute for principle and procedure.”19 THE EVOLVING JUVENILE COURT Gerald Gault was a 15-year-old boy charged with making an obscene phone call to a female The concept of the juvenile court as a sepa- neighbor. He was convicted by an Arizona rate legal institution is only a little over a cen- juvenile court and committed to a juvenile tury old.17 First established in Chicago in 1899, facility for an indeterminate time not to extend the separate juvenile court concept spread rap- beyond his 21st birthday. In finding that young idly across the United States taking hold in Gault’s due process rights had been violated, virtually every state by 1925. Based on the Justice Fortas writing for the court proclaimed notion that juveniles are developmentally dif- that “it would be extraordinary if our Constitu- ferent than adults and more amenable to treat- tion did not require the procedural regularity ment and rehabilitation, juvenile courts embod- and the exercise of care implied in the phrase ied a parens patriae philosophy. Juvenile courts ‘due process.’ Under our Constitution, the con- were to act as a benevolent parent in the best dition of being a boy does not justify a kanga- interests of the child and the central tenets roo court.”20 The due process rights extended to guiding the court were protection, treatment juveniles as a result of the Gault decision and rehabilitation rather than punishment and included written notice of the charges, right to retribution. Issues of juvenile competency had counsel, right against self incrimination and little relevancy in a system where informal pro- the right to confront and cross examine wit- ceedings were designed to take into account a nesses. In subsequent cases, the court also juvenile’s immaturity and incompetence and established that juveniles must be proven guilty reach a rehabilitative result. beyond a reasonable doubt21 and that juveniles The question of a juvenile competency right enjoy the protections of the Double Jeopardy has emerged with the modern evolution of Clause.22 juvenile courts. Three significant changes have Although the Gault decision heralded a due fueled this evolution and resulted in the process revolution for juveniles, the U.S. increased salience of juvenile competence — Supreme Court has stopped shy of extending the due process revolution, the increasing puni- the full panoply of criminal procedural rights tive nature of the system and new scientific to juveniles. The court has rejected, for instance, research on adolescent brain function and that the right to trial by jury in juvenile pro- development. It is primarily these changes that ceedings is constitutionally mandated23 and have prompted a majority of states to establish has upheld pretrial detention of juveniles prior a right to competency in juvenile proceedings. to a probable cause hearing.24 Convinced that The Juvenile Due Process Revolution “the Constitution does not mandate elimina- tion of all differences in the treatment of juve- In the 1960s and 70s, the U.S. Supreme Court niles,”25 the court has recognized that a juvenile addressed the concern that the actual perfor- proceeding is fundamentally different than an mance of juvenile courts was failing to fulfill adult criminal trial. Although there is no ques- their original laudable purposes and stepped tion that juveniles are entitled to due process in to curb perceived shortcomings and abuses protections, the court has sought to balance the of this informal system. Disturbed that “the informality and flexibility that characterize child receives the worst of both worlds: that he juvenile proceedings with their mandated con- gets neither the protections accorded to adults stitutional standard that the proceedings be nor the solicitous care and regenerative treat- fundamentally fair.26 ment postulated for children,”18 the Supreme Court ushered in an era of due process require- A More Punitive and Adversarial ments for juveniles. Through a series of deci- Juvenile System? sions, the court transformed the informal, The second dramatic change in the juvenile highly discretionary juvenile justice system justice system came as a response to the increase into a more adversarial, more formalized struc- in the rate of violent juvenile crime in the late ture. In perhaps its most famous decision, In re 1980s and early 1990s. Fueled by public concern Gault, the court questioned the legitimacy and over a perceived epidemic of violent juvenile efficacy of the parens patriae rationale and noted crime,27 all but a few states instituted reforms “that unbridled discretion, however benevo- which tended to treat juveniles more like adults.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1785 Signaling a shift away from traditional notions In two recent cases, the U.S. Supreme Court of individualized dispositions based on the best has relied upon, at least in part, this newly interests of the juvenile, several states amended understood neuroscientific distinction between their juvenile code purpose statements to replace adult and adolescent brains to abolish both the the goal of rehabilitation with punishment or juvenile death penalty31 and juvenile sentences accountability as the primary goal for the juve- of life without the possibility of parole for non- nile justice system. By the end of homicide crimes.32 The court the 1997 legislative session, 17 has acknowledged the grow- states had redefined their juve- ing scientific evidence that nile court purpose clauses to young brains are simply not emphasize public safety, certain New research has fully mature in their judg- sanctions and/or offender disproven the long-held ment, problem-solving and accountability.28 decision-making capabilities. In finding that the death pen- More substantive reforms assumption that brain alty is not appropriate for included changes designed to youth under age 18 in Roper v. make it easier to prosecute juve- development is complete Simmons, Justice Anthony Ken- niles in adult criminal court, nedy noted that scientific and including lowering the age at by puberty. sociological studies have con- which a juvenile can be tried as firmed significant differences an adult and broadening the between adults and juveniles range of felonies that can result in maturity and responsibility in adult prosecution. Other common reforms and other traits.33 Writing again for the majority included adding the existence of a prior record in Graham v. Florida in striking down juvenile life as a factor in waiver to adult court, increasing without parole sentences, Justice Kennedy was the maximum age beyond the normal age of even more explicit about scientific findings on majority for juvenile commitment, revising adolescent brain development: “[D]evelopments traditional confidentiality provisions in favor in psychology and brain science continue to of more open proceedings and records and show fundamental differences between juvenile including victims of juvenile crime as “active and adult minds. For example, parts of the brain participants” in the juvenile justice process. involved in behavior control continue to mature The result of these changes to the traditional through late adolescence.”34 juvenile court jurisdiction has been an erosion of the boundary between the adult and juve- Building on this new scientific understand- nile systems.29 ing of brain development, the MacArthur Juve- nile Competence Study35 was the first large Juvenile Brains Are Different scale study to explore how these brain differ- A third variable prompting more attention to ences affect juvenile competency to stand trial. juvenile competency issues is the growing sci- Its conclusions are startling. The results strong- entific understanding of the differences be- ly suggest that about one-third of 11-13 year tween adolescent and adult brain function. olds and one-fifth of 14-15 year-olds probably New research has disproven the long-held are not competent to stand trial. The study assumption that brain development is com- found that many adolescents lack the capaci- plete by puberty. Rather, neurologists have ties needed to be a competent defendant, found that adolescence is a critical time for exhibiting significant deficits in knowledge brain development, with dramatic changes to and understanding of the judicial process, an the brain’s structure and function. These enor- inability to put facts together and draw logical mous changes impact the way adolescents conclusions and are less able than adults to process and react to information and, as a think about the consequences of their deci- result, teenagers are more likely to be short- sions. In matters related to trial understanding sighted, have poor impulse control, be driven and reasoning about important information, 30 by emotions and be susceptible to peer pres- percent of 11-13 year olds and 19 percent of 14- sure. These factors reduce adolescents’ ability 15 year olds performed at the level of mentally to make rational decisions about their actions ill adults who have been found not competent and contribute to poor decision making.30 to stand trial.36 Thus, even setting aside the more traditional issues of juvenile mental ill- ness and mental retardation, which current

1786 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 research also suggests are likely significant and turns on how much Oklahoma juvenile pro- undoubtedly affect competence,37 policymak- ceedings resemble a criminal trial and impose ers and state legislators must grapple with adult-like consequences. developmental immaturity as a relevant factor The juvenile due process expansion trans- for assessing juvenile competence. formed juvenile proceedings in Oklahoma just WHAT ABOUT OKLAHOMA? as it did across the nation. The rights flowing from Gault and its progeny are fundamental The trends shaping the modern juvenile jus- constitutional rights protected by both the fed- tice system — the expansion of juvenile due eral constitution and the Oklahoma state con- process rights, the punitive juvenile justice stitution and recognized by our state and fed- reforms and the growing understanding of the eral courts at all levels.38 In fact, Oklahoma has unique features of the adolescent brain — have not only upheld and endorsed the due process propelled other states to acknowledge a right protections recognized by the U.S. Supreme of competency in juvenile proceedings. In the Court, but has expanded those rights to include 22 years since the Oklahoma Court of Criminal a right to trial by jury.39 Appeals rejected that right as unnecessary, have those trends changed the landscape of juvenile Although due process is a flexible concept justice in Oklahoma enough to warrant a sec- which “calls for such procedural protections as ond look at our outlier position on juvenile the particular situations demands”40 the U.S. competency? The answer is not a simple one, Supreme Court has endorsed “fundamental but the discussion is worth having. fairness” as the applicable due process stan- dard for juvenile proceedings.41 The due pro- Oklahoma has not been immune to the trends cess rights accorded juveniles from Gault — sweeping the juvenile justice system and pro- notice, right to counsel, right against self pelling the near universal move toward a right incrimination, right to confront witnesses — to juvenile competency across the nation. Ques- are thus fundamental to a fair proceeding. In tions remain, however, on whether their impact the context of adult criminal trials, the U.S. reaffirms or undermines Oklahoma’s refusal to Supreme Court has made clear that compe- recognize the right. First, the latest scientific tence is required to exercise the very rights that research on adolescent brain development are fundamental to a fair juvenile proceeding: actually reconfirms the core rationale for a separate juvenile system, specifically that chil- Competence to stand trial is rudimentary, dren and young adults are developmentally for upon it depends the main part of those different than adults and should be treated so rights deemed essential to a fair trial, includ- under the law. Hard science now reaffirms the ing the right to effective assistance of coun- historic justification for juvenile rehabilitation sel, the rights to summon, to confront, and over punishment as the focus of juvenile dispo- to cross-examine witnesses, and the right to sitions. The highly elastic and malleable ado- testify on one’s own behalf or to remain lescent brain may leave teenagers more vulner- silent without penalty for doing so.42 able to negative influences and compromise If competence is a prerequisite to exercising rational decision making, but it also provides a essential adult trial rights, is competence also a window of opportunity where appropriate prerequisite to exercising those same rights in guidance and support will help them become a juvenile proceeding? In other words, are the responsible members of society. If the Oklaho- due process rights from Gault meaningless ma juvenile system has truly remained reha- without competency? Like the question raised bilitative rather than become punitive like the by the scientific findings on juvenile compe- adult criminal system, the MacArthur Study tency, the answer to that question may also findings may be irrelevant. The MacArthur depend on how much a juvenile proceeding conclusion that a significant number of juve- resembles an adult criminal trial and imposes niles are likely incompetent to participate in adult-like consequences. their own trials (either in an adult or juvenile court) because of developmental immaturity, As discussed above, whether juvenile brain does not invalidate a system that takes into science discoveries and expanded due process account a juvenile’s immaturity and incompe- rights mandate a right to competency for juve- tence and constructs an individualized plan to niles in Oklahoma is dependent in part upon reach a rehabilitative result. The relevance of the extent to which the punitive trend of juve- these findings on juvenile competence, then, nile justice reforms has impacted the nature of

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1787 juvenile proceedings in the state and overshad- These provisions reflect the national trend of owed the rehabilitative model. Consistent with a more punitive juvenile system and raise the more punitive trend, Oklahoma has crafted questions of juvenile competency to stand trial. policies that subject more juveniles to adult Of course, once a juvenile is certified to stand proceedings and sanctions, where competency trial as an adult or as a youthful offender, the issues are undeniably relevant and only par- child has all the statutory and constitutional tially addressed. For youth who remain subject rights and protections of an adult accused of a to a traditional juvenile adjudication, where crime,48 including the right to competency. dispositions still result in an individualized What remains uncertain in Oklahoma is wheth- treatment plan geared to the best interest of the er a juvenile’s developmental immaturity and child,43 competency issues arise less from the resulting lack of capacity to assist effectively in proceeding and disposition itself and more her defense would render her incompetent to from the consequences of being adjudicated stand trial under the Dusky standard or the delinquent. state competency statute. Given the conclu- When a child under 18 years old commits a sions of the MacArthur Study, the question is crime in Oklahoma, the state can treat that worth an answer. individual in three different ways depending The certification process itself — where a on the age of the child and the seriousness of court determines whether a child will be tried the offense. Although the default standard for as an adult or a youthful offender or subject to a child under the age of 18 is juvenile adjudica- 44 an adult sentence — raises a more troubling tion, Oklahoma’s Juvenile Code also provides competency concern. The consequences of for prosecuting and sentencing children as being certified as an adult or a youthful adults or as youthful offenders, a status offender and subject to an adult sentence are designed to avail the juvenile of the rehabilita- obviously significant and potentially severe. tive services of the juvenile system, but where Nevertheless, a child has no right to be compe- an adult sentence is possible. tent to participate in the certification process In theory, a child of any age who is charged that may ultimately result in an adult criminal with an act which would be a felony if commit- trial or sentence. The decisions that juveniles ted by an adult may be certified as an adult and have to make with their attorney in a certifica- treated as an adult in every way by the crimi- tion hearing are no less complex than in a nal justice system, including being incarcerated criminal trial and certainly require that the with adults upon conviction.45 More specific juvenile be able to effectively and rationally provisions of the Juvenile Code require that assist their attorney. If the central rationale children as young as 13 who are charged with that animates the right to competency is fair- first degree murder may be treated as adults, ness, is it fair to certify a juvenile to the adult based on court certification, and youths who court if she is incompetent to provide assis- are 15-17 years old charged with first degree tance to her attorney in the hearing that makes murder must be treated as adults. In addition, that determination? under the Youthful Offender Act, juveniles are subject to adult sentences through a certification It is true that the court is bound to consider process or if the juvenile fails to comply with the something akin to competency in making the treatment plan ordered by the court or engages certification decision itself even though the in other prohibited behavior. The Youthful juvenile need not be competent to participate Offender Act, which elevates public safety and in the certification hearing. Among the statu- accountability over rehabilitation in dealing with tory factors that the court is required to con- juveniles who commit more serious crimes,46 is sider in order to certify a juvenile as an adult49 applicable to juveniles 15-17 years old who are or youthful offender,50 or impose an adult sen- charged with a statutory list of serious felonies. tence51 is an assessment of the sophistication In addition, Oklahoma has an once-an-adult- and maturity of the accused and their capabil- always-an-adult provision such that once a child ity of distinguishing right from wrong. Typi- has been certified to stand trial as an adult or for cally, the court has the benefit of a psychologi- the imposition of an adult sentence, that child cal evaluation as part of the investigation that will always be treated as an adult and will not be accompanies such a motion, but that does not subject to juvenile court jurisdiction for any address the problem of a juvenile being compe- future proceedings.47 tent enough to assist counsel in the hearing

1788 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 itself, which could lead to a significant depri- and Legislature. What role should develop- vation of liberty. mental immaturity play in assessing the com- petence of a child facing trial in the adult Children who remain in the juvenile system criminal court? Should competency be a and are not subject to adult courts nevertheless requirement for the certification process itself? are subject to an increasingly punitive system. Should juveniles be entitled to be competent While the system remains individualized and when facing a juvenile adjudication that carries focused on rehabilitation at its heart, juvenile significant punitive consequences? As the only adjudications increasingly resemble criminal state to explicitly reject the right, it is reason- convictions because of their serious conse- able to re-examine the Oklahoma approach to quences, both direct and collateral. At the out- juvenile competency in the face of the over- set, a juvenile adjudication can result in a loss whelming consensus of virtually every other of liberty: the juvenile can be made a ward of state, in light of emerging scientific under- the state, be placed on probation, be required standing of adolescent brain function and the to undergo counseling, be removed from home increasing severity of consequences of juvenile and placed in the custody of a private institu- adjudications. tion or group home, or placed in the custody of the Office of Juvenile Affairs for an indetermi- Joining the rest of the states in guaranteeing nate period of time.52 As the U.S. Supreme a right to competency in juvenile proceedings Court recognized in Gault: “A proceeding would not, however, answer all the questions where the issue is whether the child will be and uncertainties surrounding the right. Estab- found to be ‘delinquent’ and subjected to the lishing the right would raise even tougher loss of his liberty for years is comparable in questions of the appropriate standards for seriousness to a felony prosecution.”53 Even competency, procedures for restoration to com- rehabilitation sanctions can involve a major petency, and the appropriate disposition for loss of a child’s liberty. unrestorably incompetent juveniles. Despite agreement on the fundamental right itself, A juvenile’s loss of liberty may be an inciden- states vary widely in their answers to these dif- tal cost of a rehabilitative disposition, but other ficult questions of implementation. However, serious ramifications of a delinquency adjudi- these questions lie at the heart of our juvenile cation resemble a criminal conviction and may justice system and warrant the thoughtful, be motivated more by punishment (and per- informed, consideration of the Oklahoma haps public safety) than rehabilitation. For courts, Legislature and legal community. instance, juvenile adjudications are predicates for the filing of adult felony charges,54 are used 1. Pate v. Robinson, 383 U.S. 375, 378 (1966). 2. Dusky v. United States, 362 U.S. 402 (1960). in certification determinations for youthful 3. Elizabeth S. Scott & Thomas Grisso, “Developmental Incompe- 55 56 offender and adult status, may require regis- tence, Due Process and Juvenile Justice Policy,” 83 N.C. L. Rev. 793, 801 57 (2004-2005). tration as a juvenile sex offender, or possible 4. Id. at 833-34. See also, Ivan Kruh and Thomas Grisso, “Evaluation transfer from the juvenile sex offender registry of Juveniles’ Competence to Stand Trial,” Oxford University Press 19 to the adult sex offender registry.58 Juvenile (2009) (“it is now a ‘virtually inescapable conclusion’ that CST [compe- tence to stand trial] is required in juvenile court”). records are no longer as private as they once 5. G.J.I. v. State, 1989 OK CR 45. were59 and may be used to enhance future 6. 4 W. Blackstone, Commentaries 24 (9th ed. 1783). 60 7. Youtsey v. United States, 97 F. 937 (6th Cir. 1899). adult sentences. These serious consequences 8. United States v. Chisolm, 149 F. 284, 286 (C.C.D. Ala. 1906). are generally unrelated to the rehabilitative 9. 362 U.S. 402 (1960). 10. Id. at 402. function of the juvenile process and thus raise 11. Cooper v. Okla., 517 U.S. 348, 354 (1996) (internal citations omitted). issues of competency. 12. Id. 13. Okla Stat. Tit. 22, §1175.2(A). CONCLUSION 14. Okla Stat. Tit. 22, §1175.1(2). 15. 1989 OK CR 45. The U.S. Supreme Court has held that the 16. Richard E. Redding & Lynda E. Frost, “Adjudicative Competence in the Modern Juvenile Court,” 9 Va. J. Soc. Pol’y & L. 353, 372 (2001). right to be competent to stand trial is a funda- 17. For a general description of the history of juvenile courts in the mental right essential to fairness and due pro- United States, see “A Celebration or a Wake? The Juvenile Court After 61 100 Years,” Coalition for Juvenile Justice Annual Report (1998). cess about which there is no question. The 18. Kent v. United States, 383 U.S. 541, 556 (1966). significance of the right is the key role it plays 19. In re Gault, 387 U.S. 1 (1967). 20. Id. at 27-28. in ensuring a fair trial. The shifting landscape 21. In re Winship, 397 U.S. 385 (1970). of the juvenile justice system raises a number 22. Breed v. Jones, 421 U.S. 519 (1975). 23. McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Interestingly, of questions about juvenile competency that Oklahoma has extended the right to a jury trial in juvenile adjudica- warrant the attention of the Oklahoma courts tions by statute. See Okla Stat. Tit. 10A, §2-2-401.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1789 24. Schall v. Martin, 467 U.S. 253, 256-257 (1984). (right against self incrimination); and D.M.H. v State 136 P.3d 1054, 25. Id. at 263. 1055 (Okla. Crim. App. 2006) and Okla Stat. Tit. 10A, §2-2-402(C) 26. Id. (right to confrontation and cross examination); In re J.E.S., 585 P.2d 382, 27. Although there was a spike in violent juvenile crime in the early 383 (Okla. Crim. App. 1978) (right to beyond a reasonable doubt stan- 1990s, the juvenile crime rate actually peaked in 1993 and declined dard); and, D.M.H. v. State, 136 P.3d 1054, 1055 (Okla. Crim. App. 2006) during the second half of that decade. Public alarm, and the resulting and Okla Stat. Tit. 10A, §2-2-401 (right to a trial). legislative reaction, was stimulated at least in part by the excessive 39. See Okla Stat. Tit. 10A, §2-2-401. hype of the media. See Elizabeth S. Scott and Laurence Steinberg, 40. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). “Blaming Youth,” 81 Tex. L. Rev. 799, 807-808 (2003); see also, “False 41. McKeiver v. Pa., 403 U.S. 528, 543 (1971). Images? The News Media and Juvenile Crime,” Coalition for Juvenile 42. Drope v. Missouri, 420 U.S. 162, 171-172 (1975). Justice Annual Report (1997). 43. Okla Stat. Tit. 10A, §2-2-501-504. 28. Torbet, P., & Szymanski, L., “State Legislative Responses to 44. Okla Stat. Tit. 10A, §2-5-203(A). Violent Juvenile Crime: 1996-97 Update,” Office of Juvenile Justice and 45. Okla Stat. Tit. 10A, §2-5-204(F). Delinquency Prevention (1998). 46. Okla Stat. Tit. 10A, §2-5-202(B). 29. For a comprehensive analysis of the trends in the states’ 47. Okla Stat. Tit. 10A, §2-5-204(G). response to the escalating serious crime by juveniles in the 1990s see 48. Okla Stat. Tit. 10A, §2-5-204(C). Torbet, P., Gable, R., Hurst, H., Montgomery, I., Szymanski, L., & 49. Okla Stat. Tit. 10A, §2-2-403(A)(3). Thomas, D., “State Responses to Serious and Violent Juvenile Crime,” 50. Okla Stat. Tit. 10A, §2-5-205(E)(4). U.S. Department of Justice, Office of Juvenile Justice & Delinquency 51. Okla Stat. Tit. 10A, §2-5-208(C)(2)(d). Prevention (1996). 52. Okla Stat. Tit. 10A, §2-2-503. 30. For a summary of the scientific research on adolescent brain 53. In re Gault, 387 U.S. 1, 36 (1967). development and possible implications for the juvenile justice system, 54. Possession of a Firearm after Former Adjudication, Okla Stat. see “Putting The Juvenile Back In Juvenile Justice,” Action for Children Tit. 21, §1283(D). North Carolina, December 2007, found at www.ncchild.org/sites/ 55. Okla Stat. Tit. 10A, §2-5-101. default/files/Juvenile_Justice_Raising_The_Age_Brief_final.pdf. 56. Okla Stat. Tit. 10A, §2-2-403. 31. Roper v. Simmons, 543 U.S. 551 (2005). 57. Okla Stat. Tit. 10A, §§2-8-102 to 2-8-107. 32. Graham v. Florida, 120 S.Ct. 2011 (2010). 58. Okla Stat. Tit. 10A, §2-8-108. 33. Roper v. Simmons, 543 U.S. 551, 569 (2005). 59. Okla Stat. Tit. 10A, §2-6-108. 34. Graham, 130 S.Ct. at 2026 (citing Brief for the American Medical 60. 18 USCS Appx §4A 1.2. Ass’n & the American Academy of Child & Adolescent Psychiatry as 61. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). Amici Curiae Supporting Neither Party). 35. Thomas Grisso, Lawrence Steinberg, Jennifer Woolard, Eliza- beth Cuffman, Elizabeth Scott, Sandra Graham, Fran Lexcen, N. Dick- About The Author on Repucci & Robert Schwartz, “Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defen- dants,” 27 Law & Hum. Behav. (2003) [hereinafter MacArthur Study]. Mary Sue Backus is a professor 36. For a summary of the MacArthur Juvenile Competence Study, see Laurence Steinberg, “Juveniles on Trial MacArthur Foundation of law at the University of Okla- Study Calls Competency into Question,” Criminal Justice Magazine, Fall homa College of Law. She teaches 2003, Vol. No. 3. criminal law, evidence and educa- 37. See David R. Katner, “The Mental Health Paradigm and the MacAr- thur Study: Emerging Issues Challenging the Competence of Juveniles in tion law. She serves on the OBA Delinquency Systems,” 32 Am. J. L. and Med. 503, 508-519 (2006). Civil Procedure and Evidence 38. For Oklahoma state cases and statutes recognizing the rights established in Gault, see for example, Crandell v. State, 539 P.2d 398, 401 Code Committee and the Court (1975 OK CR 127) and Okla Stat. Tit. 10A, §2-2-107 (notice of charg- of Criminal Appeals Committee es); J.T.P. v State, 544 P.2d 1270 (Okla. Crim. App. 1975) and Okla Stat. Tit. 10A, §2-2-301(A)(C) (right to counsel); J.T.P. v State, 544 P.2d 1270, for Uniform Jury Instructions. 1276 (Okla. Crim. App. 1975) and Okla Stat. Tit. 10A, §2-2-402(B)

1790 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 OKLAHOMA CORPORATION COMMISSION 2011 OIL AND GAS INSTITUTE “CHANGING DYNAMICS: NEW PERSPECTIVES ON OKLAHOMA OIL AND GAS CONSERVATION LAW AND PRACTICE”

Sponsored by:

Oklahoma Corporation Commission Oklahoma Bar Association Oil and Gas Conservation Division Energy & Natural Resources Office of Administrative Proceedings Law Section Office of General Counsel

Friday, Sept. 23, 2011, 8:30 a.m. to 4 p.m. Perkins Auditorium, Schusterman Learning Center, Schusterman Center, University of Oklahoma – Tulsa, 4502 East 41st Street, Tulsa, Oklahoma

AGENDA 8:00 – 8:30 Registration in the Perkins Auditorium

8:30 – 8:45 Welcome The Honorable , Chair, Corporation Commission; The Honorable , Vice Chair, Corporation Commission; The Honorable , Commissioner, Corporation Commission; L. Vance Brown, Attorney at Law, Chair, OBA Energy & Natural Resources Law Section

8:45 – 9:45 The Shale Reservoir Development Act of 2011 (HB 1909) Moderator: The Honorable Dana Murphy, Chair, Corporation Commission; Panel: John R. Reeves, Attorney at Law; Terry Stowers, Attorney at Law & National Association of Royalty Owners; Loyd Tinsley, Senior Land Advisor, Devon Energy Production Corp.; Mark Fisher, Southern Region Land Manager, Continental Resources Inc.

9:45 – 10:00 Mid-Morning Break

10:00 – 10:30 Mock OCC Hearing – Multi-unit Horizontal Well Application David E. Pepper, Attorney at Law; Staff from Continental Resources Inc.; ALJ Paul Porter, Senior ALJ, Oklahoma City; and OCC Staff

10:30 – 11:30 Update on Environmental Issues – Hydraulic Fracturing, Earthquake Clusters, OCC Rulemaking and Other Current Developments Moderator: Lori Wrotenbery, Director, Oil & Gas Conservation Division; Panel: Angela Burckhalter, Vice President, Regulatory Affairs, Oklahoma Independent Petroleum Association; Austin Holland, Seismologist, Oklahoma Geological Survey; Dr. Mark Layne, Vice President, ALL Consulting; Kevin Fisher, General Manager, Pinnacle, a Halliburton Service

11:30 – 12:30 Catered Lunch in Founders Hall

12:30 – 1:30 Ethics Discussion – Putting Your Best Foot Forward in Presenting Orders and Appearing Before the Commissioners En Banc Moderator: The Honorable Jeff Cloud, Vice Chair, Corporation Commission; Panel: Andrew Tevington, General Counsel, Jim Hamilton, Deliberating Counsel for Oil and Gas and Assistant General Counsel, Office of General Counsel; William H. Huffman, Attorney at Law; Richard A. Grimes, Attorney at Law

1:30 – 2:30 Where Does the OCC’s Jurisdiction Begin and End? – Current Issues Impacting Mineral Owners, Surface Owners, Petroleum Land Managers and Operators Moderator: Michael D. Stack, Attorney at Law; Panel: Ronald M. Barnes, Attorney at Law; H.W. “Dub” Peace, National Association of Royalty Owners; Hamel Reinmiller, Petroleum Land Manager, Eagle Rock Mid-Continent Asset LLC.; Eric R. King, Attorney at Law

2:30 – 2:45 Mid-Afternoon Break

2:45 – 3:45 Review and Comment – Current Issues Impacting the OCC’s Oil and Gas Conservation Adjudication Process Moderator: ALJ Michael Decker, Director, Office of Administrative Proceedings; ALJ Panel: ALJ Patricia MacGuigan, Oil & Gas Appellate Referee; Deputy ALJ Curtis Johnson, Tulsa; Senior ALJ Kathy McKeown, Tulsa; Deputy ALJ David Leavitt, Oklahoma City; Attorney Panel: Charles L. Helm, Attorney at Law; Richard K. Books, Attorney at Law; J. Fred Gist, Attorney at Law

3:45 – 4:00 Evaluation and Acknowledgements ALJ Michael Decker

Please find the registration form online at www.occeweb.com - “Hot Topics” menu. Send completed registration form and check: c/o Ms. Snooks Campbell, Office of Administrative Proceedings, Oklahoma Corporation Commission, P.O. Box 52000, Oklahoma City, OK 73152-2000, Telephone: (405) 521-2756, Facsimile: (405) 522-6397, [email protected]. Seating is limited, so register promptly; telephone if you fail to receive confirmation email in response to registration. Fee: $75 (pre-registration by COB Wednesday, Sept. 21, 2011) $85 (registration at the door). Please make checks payable to: Oklahoma Corporation Commission, 2011 Oil and Gas Institute. No credit cards please. The seminar is approved by the Oklahoma Bar Association’s Mandatory Continuing Legal Education Commission for 6.5 hours of MCLE credit. An application is pending for continuing education credits through the American Association of Petroleum Landmanagers (AAPL). Please visit the Oklahoma Corporation Commission’s information booth in the lobby for demonstrations of the commission’s website and current online oil and gas forms and reports. Guidance about online filing of forms and reports with the Oil and Gas Conservation Division will be available from 8 a.m. – 4 p.m. Additional inquiries to: ALJ Michael Decker, OAP Director (405) 521-2241, [email protected].

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1791 1792 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW ‘Child Preference’ When, How and Why it Should be Considered By Noel K. Tucker arents, courts and family law attorneys struggle with under- standing the impact of custody litigation on children. There is Plittle question that some emotional trauma and imbalance in a child’s life are natural byproducts of their parents’ custody and visita- tion litigation. Even when a divorce is amicable and the impact on the child(ren) is lessened with focused attention on the child(ren)’s best interest, the impact of divorce on a child can be lessened by amicable negotiations. However, a child will likely experience a major adjust- ment to his or her understanding of family, security and stability and may affect a child’s perspectives and perceptions through childhood and likely throughout life. There is no disputing this fact, just the severity of the impact.1 The emotional toll on children is magnified when the parents choose to use the children as pawns in their legal battleground. When parents attempt to influence a child to support their side of the battle through manipulation or direct sabotage of the other parent’s relationship, the effect on the child’s emotional trauma is obviously accentuated. One way a parent compounds this effect is by encouraging or demanding that the child express his or her custody and or visitation preference directly to the judge or a guardian ad litem appointed to represent the child’s best interest in the litigation.

Children are impacted even without parental HISTORICAL DEVELOPMENT OF CHILD influence when the child forms his or her own PREFERENCE independent opinion and desires to have his or Oklahoma has a long history of allowing a her voice heard regarding his or her custodial or child of sufficient age to express an intelligent visitation preference. This is true even if there is preference for his or her custody placement.2 no influence or coaching by either parent. Oklahoma has had a procedural statute on a Whether a child expresses a custodial and/or child’s custodial and/or visitation preference visitation preference to a judge as a result of testimony since 1975.3 Although limited to either of these avenues or something in-between, divorce actions, the 1975 statutory framework the court must make every effort to protect the allowed the court to consider a child’s custodial emotional toll that choosing one parent over preference. The child preference provisions were another takes on a child.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1793 moved out of Title 12, the procedure code and CHILD PREFERENCE APPLICATION AND codified in Title 43 with marriage and divorce STANDARDS in 1989. This recodification also expanded the The idea that a child of sufficient age can court’s discretion to include consideration of a form a well-thought-out, intelligent preference child’s custodial preference in legal separation 4 was the subject of the Nazworth v. Nazworth, or annulment actions. It would not be until 1996 OK Civ App 134, 931 P.2d 86, decision. In 2002 until another statutory revision would Nazworth, father sought a change of custody of occur. the parties 13-year-old son based upon the The 1989 recodification of the statute allowed child’s expression of desire to live with father. the court to determine whether the best interest Since the request for change of custody was of the child would be served by allowing the based solely on preference, the trial court child to express a preference as to his or her granted mother’s directed verdict that no “sub- custody or limits of or periods of visitation. stantial, material and permanent” change of The court was not required to follow the pref- condition existed to warrant a change in cus- erence of the child but was specifically instruct- tody. The COCA reversed the trial court stating ed to take other facts into consideration.5 that the child’s best interest must be served by a “serious consideration” of the child’s prefer- The second paragraph of the 1989 statute ence and the reason for it. ¶6 Based on that revision instructed how the child’s preference holding, Nazworth is most commonly cited for was to be received. The child’s preference or the proposition that a well-thought-out and testimony was to be taken by the court in intelligent preference by a child is sufficient by chambers. Whether or not the parents were itself to change custody from one parent to present was left to the discretion of the court. another.10 See also Nelson v. Nelson, 2004 OK However, if the attorneys were excluded, the Civ App 6, 83 P.3d 911. court was required to state for the record the court’s reasons for the exclusion. Further, if Two years after the Nazworth decision, the either party requested the child’s preference or case of Coget v. Coget, 1998 OK Civ App 164, testimony be recorded, the court was required 966 P.2d 816 ruled a child’s preference does not to accommodate the request.6 have to be followed if the child’s preference is not well-thought-out and intelligent. [empha- The Oklahoma Legislature made significant sis added] i.e., if not well-thought-out and changes to the child preference statute in 2002, intelligent it will be an insufficient ground for which is our current statutory framework until 7 a change in custody. In Coget, father obtained a Nov. 1, 2011. These revisions were not likely change of custody of the parties 9-year-old driven by case law due to the fact there were daughter based on her preference and that only a couple of cases citing the previous pref- mother was living with a paramour. However, erence statute, Nazworth v. Nazworth, 1996 OK father could not show mother’s living arrange- Civ App 134, 931 P.2d 86 and In re Adoption of 8 ment was permanent and adversely affected M.C.D. 2002 OK Civ App 27, 42 P.3d 873. Nei- the child as required by Gibbons. Further, it ther case raised issues presented in the 2002 appears the child’s preference was testified to legislation which established three primary by father of the child and not obtained by court objectives: interview. Note the child was under the age of 1. the court shall determine whether it is in the rebuttable presumption that she was of suffi- child’s best interest to express a preference; cient age to form an intelligent preference.11 In Nazworth, the appellate court reasoned that 2. if the child is of sufficient age to form an where a change in custody is sought because a intelligent preference and, if so, the court child has asked for the change, the child’s shall consider the child’s expression of interests are best served by “serious consider- preference but shall not be bound by it; ation” of the preference and the reasons for it. and, Therefore, an in-depth judicial assessment of 3. established a rebuttable presumption that a the current custodial arrangement should be child who is 12 years of age or older is of suf- made. Id. at ¶6. Obviously, in conjunction with ficient age to form an intelligent preference.9 the statute, the appellate court believed the expressed interest of the 13-year-old child in Nazworth had evidentiary significance to the best interest determination, but not the nine-

1794 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 year-old in Coget. This appears to be where the Division III COCA decision of Buffalo v. Buffalo, courts start considering at what age a child’s 2009 OK Civ App 44, 211 P.3d 923 somewhat preference can be intelligently sufficient to contradicts the Nelson Division IV and Naz- merit judicial consideration. However, as noted worth Division I decisions. Buffalo held “the above, the rebuttable presumption that a child child’s preference does not allow the court to who is 12 years of age or older was of sufficient bypass the obstacles articulated in Gibbons but age to form an intelligent preference was not that the child’s preference and the reasons codified until June 4, 2002.12 underlying it can be considered and evaluated to determine if the Gibbons requirements have It should be noted the decisions discussed been met.” In Buffalo, father moved the court to above all involved initial custody or custody modify custody of the minor child from mother modification determinations that would nor- to himself. He plead a long list of allegations mally require a Gibbons analysis.13 These deci- including, but not limited to, school perfor- sions seem to have established another standard mance, multiple moves, physical abuse by a for modification based on preference, i.e., a child sibling and the child’s preference. Id. at ¶9. The of sufficient age who formulates an intelligent, court interviewed the 10-year-old child in well-thought-out custodial or visitation prefer- chambers, who specifically stated a preference ence is a sufficient change in circumstances to live with father. The court ruled that father’s that satisfies the Gibbons analysis.14 These cases evidence, “aside from the testimony of the did not address the issue of breaking a joint minor child,” did not support a permanent, custody plan via a child’s preference. It was substantial and material change of circum- not until the 2004 case of Eimen v. Eimen, 2006 stances.¶3. However, the trial court, citing Nel- OK Civ App 23, 131 P.3d 148, that the analysis son, changed custody based upon the child’s was applied to a joint custody arrangement... preference along with the child’s dislike of his sort of. The moving party did not seek to break sister. On appeal, the COCA reversed stating the joint custody plan. In Eiman, the parties preference alone is not sufficient to satisfy the were in a joint custody plan, and father moved Gibbons requirement of a material, substantial to change the equal time share to him having and permanent change of circumstances, affect- the primary physical custody of the children. ing the child’s welfare to a material extent and Neither party requested to break the joint cus- a showing that the child’s overall welfare tody plan, and the trial court ruled that the would improve in order to remove the child Gibbons test was not satisfied and denied from the custodial parent. ¶18. father’s motion. The appellate court reversed citing Nazworth and Nelson, supra, in that So how do we reconcile Buffalo? This COCA when a change in custody is sought because a Division III decision did not specifically over- child has asked for the change, then the child’s turn the prior preference decisions of Nazworth, interests are best served by a serious consider- Hogue and Nelson. It could be argued that the ation of the child’s preference. Id. at ¶14. Fur- Buffalo decision simply explains how the child’s ther, it found that the children’s stated reasons well-reasoned preference is required to trigger were not unfounded, juvenile or lacking in the Gibbons standard. In Buffalo, the appellate merit. Id. at ¶15. The appellate court ruled court specifically stated that the child’s testi- applying the “change of circumstances” test mony and preference was not sufficiently artic- was error and remanded to apply a best inter- ulated to form an “intelligent preference.” Id. at est determination. ¶23. The child’s expressions were inconsistent and not a product of a long, thought-provok- The same result was reached in Hogue v. ing analysis. He simply preferred to live with Hogue, 2008 OK Civ App 63, 190 P.3d 1177. father and did not like his sibling. Id. at ¶21. Although not a change of physical custody within a joint custody plan, the husband moved With the exception of the 2009 Division III to gain custody of the daughter from a split opinion of Buffalo, the decisions seem to repeat custody arrangement. The daughter was 15 the mantra that a child’s preference is a suffi- and expressed a well-reasoned position for her cient enough basis to change custody and satis- desire to live with her father. Id. at ¶8. fies a Gibbons analysis. With these decisions in place instructing when the court shall consider As is the case with many Oklahoma Court a child’s well-thought-out preference, now the of Civil Appeals (COCA) decisions, opinions question should be asked, “what is a well- differ from one division to another. Child pref- thought-out intelligent expression of prefer- erence is no exception. The Oklahoma City

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1795 ence by a child?” Unfortunately, the decisions granted the change of custody based upon the provide little guidance as to the specifics need- child’s expression of preference to live with ed to answer this question. Perhaps the trial father because the child did not get along with court is left in a position akin to Justice Potter his mother. There was also testimony that Stewart’s description of the threshold test for mother did not foster a good father-son rela- pornography, being “I know it when I see it.”15 tionship. Id. at ¶2. Hogue did cite the 1960 case We can look at Nazworth and the prodigy of of Davis v. Davis, 1960 OK 196, 355 P.2d 572, for child preference cases that follow in an attempt the converse position that the whims, wants to answer the question of what is a well- and desires of a minor child are not the criteria thought-out, intelligent expression of prefer- for determining which parent should be grant- ence. Nazworth actually gives little to no guid- ed custody of a minor. Id. at ¶7. ance because the lack of the child’s interview Foshee v. Foshee, 2010 OK 85,16 was not only was the reason the decision was reversed. In the first joint custody plan that considered Nelson, the court even considered the prefer- preference, but it was also the first case decided ence of a 7-year- old. However, the 12-year-old after the Ynclan v. Woodward, 2010 OK 29, deci- sibling expressed “an intelligent determina- tion” supporting his reasons for his preference sion that provided specific direction to the and included his desire not to be separated court regarding obtaining child preference tes- from his younger brother with whom he shared timony. In Foshee, the parties entered an agreed a strong bond. The younger brother acknowl- joint custody plan to which mother filed a edged the strong bond with his older brother motion to break the plan nine months later and his preference not to be separated. The stating the parties could not work together. The court cited Nazworth stating that “where the trial court interviewed all three children of preference is explained by the child and good which two preferred to stay in the joint custody reasons for the preference are disclosed, the plan and one preferred to live primarily with preference and supporting reasons will justify father. The trial court ruled to break the joint the change of custody. Id. at ¶2. custody plan and grant custody to mom due to ongoing conflict between the parties and In Eimen v. Eimen, 2006 OK Civ App 23, 131 father’s anger management issues. The COCA P.3d 148, the appellate court reasserted that a child’s preference was a sufficient circumstance affirmed the trial courts decision. The court enough to warrant a change of custody to the properly considered the children’s preference father. The children’s interview revealed that but did not follow their preference¶19 finding they did not want to continue to shift back and the joint custody plan should be broken because forth between both houses; that they had more the parties could not communicate effectively privacy and comfort at father’s home because regarding the children’s best interest and dad’s they did not have to share a bedroom, they unresolved anger issues.¶20 So, the Foshee were more familiar with father’s home because court broke a joint custody plan not due to the that is where they had always lived; father children’s preference, but because the parties worked close so it was convenient for him to could not cooperate in making joint parenting come home for lunch and facilitate extracur- decisions.17 The children’s preference was pri- ricular activities. Id. at ¶s 4, 5. marily to spend equal time with each parent and not break the joint custody plan. The trial Then in Hogue v. Hogue, 2008 OK Civ App 63, court determined that the children’s preference 190 P.3d 1177, the appellate court upheld the trial court’s decision to change custody out of a could be dealt with by the visitation schedule split custody arrangement based solely on the and ruled to break the joint custody plan, child’s preference, now that the child was of granting sole custody to mother. sufficient age to express a preference. Mother After an analysis of these decisions, we have was awarded sole custody of two children in a short list of sufficient reasons to satisfy the the divorce. Father subsequently sought and well-thought-out, intelligent preference stan- was granted custody of the oldest child. Later, dard. Based on the published decisions, the father moved for a change of custody of the intelligent, well-thought-out reasons sufficient remaining child in mother’s custody based to change custody have been: upon the child’s preference. The court again said that a child’s preference was sufficient 1) preference and desire to remain with a grounds for a change in circumstances and sibling(s);

1796 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 2) preference and inability to get along with but only available to the parties if the deci- one parent; and, sion is appealed; and, 3) preference and evidence of convenience 3) P rovides a more detailed procedure to and comfort. determine what role the attorneys will have in camera, (ask questions or provide CURRENT STATUTE ANALYSIS a list of questions) if at all and if not then, The current statute breaks down the process as the statute also requires, the court must into four factors or steps. First, note the statute specifically state why they were excluded. makes no distinction between determinations Ynclan looked to multiple of sole custody or joint custody, jurisdictions to comprise a list but applies to any case which of reasons why everyone, the court must determine cus- other than the child, court tody or limits of or period of reporter and judge should be visitation.18 Then the court shall …the child may excluded from an in camera determine if it is in the best interview of children in para- interest for the child to even testify in chambers, graph 12: express a preference.19 Next, if the child is of sufficient age the without the parents “1) elimination of the harm a court shall consider the expres- child might suffer from expo- sion of preference but the court present. sure to examination and cross- shall not be bound by the pref- examination and the adver- erence. If the court does not sarial nature of the proceed- follow this preference it shall ings generally; make specific findings to support its findings, if requested by either party.20 Remember, if it is 2) reduction of added pressure to a child in in the best interest for the child to express a an already stressful situation; preference and the child is 12 years old or 3) enhancement of the child’s ability to be older, there shall be a rebuttable presumption forthcoming; that the child’s expression is an intelligent pref- erence.21 Lastly, the child may testify in cham- 4) reduction of the child’s feeling of disloy- bers, without the parents present. The attor- alty toward a parent or to openly choose neys may also be excluded, but if either attor- sides; ney objects, the court shall state reasons for 5) minimization of the emotional trauma their exclusion. Finally, either party may request affecting the child, by lessening the ordeal for a record be made of the child’s testimony.22 It the child; was access to the child’s testimony transcripts that resulted in the March 2010 Oklahoma 6) protection of the child from the tug and Supreme Court decision providing specific pull of competing custodial interests; and, guidelines for an in camera interview of chil- 7) awarding custody without placing the child dren in Ynclan v. Woodward, 2010 OK 29. in an adverse position between the parents.” HOW YNCLAN EXPANDS THE CHILD The Ynclan decision also stresses the point PREFERENCE STATUTE that a child should never be asked directly to Ynclan expands the statutory provisions of 43 answer the ultimate question of where the O.S. §113 in several areas: child would rather live, reasoning that, if the parents know that this question cannot be 1) It adds the requirement that the court has asked, then the prospect of parental manipula- to state on the record its preliminary deter- tion is minimized, and the child will not feel mination whether a child’s best interest is like the expressed preference is “the” deciding served by expressing a preference; factor.¶13. 2) It requires the court to put on the record if The Ynclan decision carefully balanced the it believes a child of sufficient age is not parental due process rights with the child’s mature enough to make an intelligent, right to be heard while keeping the child’s best well-reasoned decision. Also, the require- interest intact. The opinion provides detailed ment that the preference shall be recorded

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1797 instructions for the trial court to achieve this Crouch was simply a visitation modification, balance in a four step process: the judge refused to interview the 12-year-old 1) If the court or parties are to consider an in child stating that it was the court’s practice to camera interview of the child(ren), the only interview children when custody was at court must make and state on the record issue. The appellate court reversed with spe- its preliminary determinations concerning cific instructions to follow the guidelines in whether the child’s best interest is served Ynclan in conjunction with the child preference by conducting such an in camera inter- statute, which specifically applies to visitation view and whether the child is of sufficient as well as custody. age to form an intelligent preference; In Foshee, the trial court broke a joint custody 2) If the parents consent to the interview or plan finding the parties were unable or unwill- waive their presence, the court can pro- ing to execute parenting duties jointly, which is ceed with the interview; a material change in circumstances requiring joint custody to be modified. Id. at ¶2. The 3) If one or both parents object to being court conducted in camera interviews of the excluded, the trial court must consider whether the parents want counsel present, children, in which two of them desired to remain and if so, make a determination how coun- in the joint custody plan, spending equal time sel will or will not be excluded. (One with each parent, and one desired to stay with would presume that the seven factors to the father. The trial court broke the joint custody support a private interview would make plan and awarded sole custody to the mother good arguments to exclude counsel.) If the based on other evidence presented by the par- court allows counsel to be present, which ties, and not the children’s preference. In uphold- is totally discretionary, the court must also ing the trial court’s decision, the Oklahoma determine if counsel may question the Supreme Court cited the Ynclan decision to sup- child or submit questions. If counsel is port the proposition that the child’s preference is excluded then the court must state reasons only one factor to consider when determining for the exclusion. (Again, presume facts to custody or period of visitation.¶13. support one of the seven reasons for a pri- vate interview.); and, Neither of these two decisions shed any light on the unanswered questions of what weight 4) The final instruction regards the transcript should be given to a child’s preference and of the in camera interview. If either parent whether a well-thought-out, intelligent prefer- requests a court reporter, a record shall be ence is sufficient to overcome the Gibbons stan- made. dard to modify custody in reconciliation with In the interest of due process the decision also Buffalo. However, there may be an indication instructed that the in camera interview, if hidden in the footnotes of Foshee. Footnote 6 made, must be made available to the parties if specifically cites to Hogue,23 Nelson24 and Eimen,25 the decision is appealed. which could have been specifically overturned based upon Buffalo. However, they were cited POST YNCLAN DECISIONS in this subsequent decision without any men- Ynclan v. Woodward, 2010 OK 29 was decided tion of conflict with the prior ruling in Buffalo. on March 23, 2010. There have been two subse- It also stated that the Hogue and Nelson deci- quent child preference decisions since that time sions were cases modifying custody and not — In re the Marriage of Crouch, 2010 OK Civ App breaking a joint custody plan, and, therefore, 144 decided Nov. 5, 2010, and Foshee v. Foshee, altogether different. The footnote went on to 2010 OK 85, decided Dec. 7, 2010. say “we have not addressed the appropriate In Crouch, the parties were divorced in weight to be given to a child’s preference when Comanche County, Okla., with mother being the child’s change in preference is the only awarded custody of the parties’ three children. change which has occurred, nor do we do so Subsequently, father moved to Ft. Smith, Ark., today.” and mother and the children moved to Okla- NEW STATUTE EFFECTIVE NOV. 1, 2011 homa City. The material change of circum- stances was moving and each party requested Effective Nov. 1, 2011, HB 160726 will become a change in the visitation schedule. Because law.

1798 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 First. The court shall determine if the best takes this discretion away if the child is old interest of the child will be served by allowing enough to presume to have the ability to make the child to express a preference. an intelligent preference. However, the weight that preference is to be given is still within the Second. Rebuttable presumption remains discretion of the trial court. Until the new stat- that a child 12 years of age will form an intel- ute goes into effect the court must make spe- ligent preference. cific findings as to why or why not a child is Third. The court shall consider the prefer- interviewed and why or why not attorneys ence but the child’s preference does not dimin- and/or parents are excluded from the inter- ish the discretion of the court to determine the view. After the statute goes into effect the court child’s best interest. (The requirement that the does not have to make specific findings regard- court make specific findings regarding its rul- ing exclusions but must allow the parties to ing in opposition to the child’s preference has provide questions and topics to be explored. been removed. This is also a departure from However, the court has discretion to explore Ynclan.) these requests. The guardian ad litem, if appoint- ed, will also be present in any interview. Fourth. The interview may be conducted without parents or attorneys, but they can pro- Most family law clients and their teenage vide questions or topics...of which the court is children are under the mistaken belief that not bound to ask or explore. (This provision is once a child reaches the age of 12 they have the a departure from Ynclan in that Ynclan requires sole power to make a custody or visitation the court to give specific reasons why the par- determination. A review of the recent case and ents and/or attorneys are excluded.) Further, if statutory law does not support that belief and the court rules the parties are to be excluded, the first step in these cases will be to educate the attorneys then have the right to submit the client and determine the legal validity of questions. However, the guardian ad litem, if the child’s preference before a thorough analy- any, shall be present. sis of the clients case can be made.

Fifth. Either party can request a record of the 1. Philip M. Stahl, Complex Issues in Child Custody Evaluations, interview be made but access to this record Chapter 6 “Child Considerations in Custody Recommendations.” 2. Davis v. Davis, 1960 OK 196, 355 P.2d 572. See also the detailed only be available to the parties if the custody or footnote 5 of Foshee v. Foshee, 2010 OK 85. visitation decision is appealed. 3. 12 OS §1277.1. 4. 43 O.S. §113. CONCLUSION 5. 43 O.S. §113, paragraph 1 — “In any action for divorce, legal separation or annulment in which a court must determine custody or The analysis of statutory and case law on limits of or period of visitation, the child may express a preference as to which of its parents the child wishes to have custody. The court may child preference gives the family law practitio- determine whether the best interest of the child will be served by the ner very few client guidelines but significant child’s expression of preference as to which parent should have cus- tody or limits of or period of visitation rights of either parent. If the judicial guidance. The child’s well-thought-out, court so finds, the child may express such preference or give other intelligent preference shall be considered by a testimony. The court may consider the expression of preference or other testimony of the child in determining custody or limits of or trial court, but only as a single factor in the total period of visitation. Provided, however, the court shall not be bound analysis. If the child is 12 years of age or older, it by the child’s choice and may take other facts into consideration in is presumed his or her preference is well-rea- awarding custody or limits of or period of visitation.” 6. 43 O.S. §113, paragraph 2 — “If the child expresses a preference soned. Ynclan provides a specific roadmap to or gives testimony, such preference or testimony may be taken by the follow when deciding whether or not to inter- court in chambers, with or without the parents or other parties present, at the court’s discretion. If attorneys are not allowed to be present, the view a child and what procedure should be fol- court shall state, for the record, the reasons for their exclusion. At the lowed — but when read in conjunction with the request of either party, a record shall be made of any such proceeding in chambers.” new statute to become effective later this year HB 1607 amending 43 O.S. §113 was passed and signed by Gov. — the court must interview the child. Fallin on May 13, 2011. Basically, the bill codifies the teachings of Ynclan v. Woodward 2010 OK 29 with the exception the guardian ad It is a likely analysis that a child’s well- litem would be allowed to be present in the in camera interview. HB 1607 will become effective Nov. 1, 2011. thought-out expression of preference may be 8. In Re Adoption of M.C.D. is hardly informative since the child in sufficient to satisfy the Gibbons standard for a question was only 3 years old at the time of trial. Further, the child’s counselor testified the child would say what she thought the husband modification of custody. We also know that would want her to say rather than express any independent prefer- Ynclan took the discretion of the court away to ence. Id. at ¶33. determine best interest of whether or not the 9. 43 O.S. §113.B.3. 10. Nazworth v. Nazworth, 1996 OK Civ App 134, 931 P.2d 86, is also child should express a preference and ruled precedential for the determination of including social security disabil- that the child’s best interest will be served by ity income as part of the recipient’s gross income for the purposes of expressing a preference. Again, the new statute calculating child support. Further, that the dependent portion of the

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1799 disability payment offsets the payor’s child support obligation. Id. at 25. Eimen v. Eimen, 2006 OK Civ App 23, 131 P.3d 148. ¶9-12. 26. 43 O.S. §113 11. 43 O.S. §113.B.3. A. In any action or proceeding in which a court must determine 12. 43 O.S. §113.B.3. custody or limits to or periods of visitation, the child may express 13. Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482 requires the mov- a preference as to which of the parents the child wishes to have ing party to prove a substantial, material and permanent change of custody or limits to or periods of visitation. circumstances in the custodial home such that a change of custody B. The court shall first determine whether the best interest of the would operate in the best interest of the child. child will be served by allowing the children to express a prefer- 14. An exception would be an Oklahoma Court of Civil Appeals ence as to which parent should have custody or limits to or periods (COCA) decision of Buffalo v. Buffalo 2009 OK Civ App 44, 211 P.3d 92. of visitation with either parent. If the court so finds, then the child [Decision to be discussed in detail later.] As a COCA decision is only may express such preference or give other testimony. considered persuasive and not binding authority. Further, Buffalo was C. There shall be a rebuttable presumption that a child who is 12 decided before Ynclan v. Woodward, 2010 OK 29, Foshee v. Foshee 2010 years of age or older is of a sufficient age to form an intelligent OK 85 and In Re Marriage of Crouch, 2010 OK Civ App 144. See Sup. Ct. preference. Rule 1.200 (c) D. If the child is of a sufficient age to form an intelligent preference, c) Effect of Publication of Formal Opinion. the court shall consider the expression of preference or other testi- (1) Opinions of the Supreme Court designated For Official Pub- mony of the child in determining custody or limits to or periods of lication when adopted will be published in the unofficial visitation. Interviewing the child does not diminish the discretion reporter (Oklahoma Bar Journal) on the of the court in determining the best interest of the child. The court website, and published after mandate in the official reporter shall not be bound by the child’s choice or wishes and shall take all (Pacific Reporter 2d). Such opinions may not be cited as authority factors into consideration in awarding custody or limits of or in a subsequent appellate opinion, nor may they be used as period of visitation. authority by a trial court until the mandate in the matter has E. If the child is allowed to express a preference or give testimony, been issued. the court may conduct a private interview with the child in cham- (2) Opinions of the Court of Civil Appeals which resolve novel or bers without the parents, attorneys or other parties present. How- unusual issues may be designated for publication, at the time the ever, if the court has appointed a guardian ad litem for the child, opinion is adopted, by affirmative vote of at least two members the guardian ad litem shall be present with the child in chambers. of the division responsible for the opinion. Such opinions shall The parents, attorneys or other parties may provide the court with remain unpublished until after mandate issues, after which time questions or topics for the court to consider in its interview of the they shall be published in the unofficial report (Oklahoma Bar child; however, the court shall not be bound to ask any question Journal) the Oklahoma Supreme Court World website, and in the presented or explore any topic requested by a parent, attorney or official reporter (Pacific Reporter 2nd). Such opinions shall bear other party. the notation “Released for publication by order of the Court of F. At the request of either party, a record shall be made of any child Civil Appeals” and shall be considered to have persuasive effect. interview conducted in chambers. If the proceeding is transcribed, Any such opinion, however, bearing the notation “Approved for the parties shall be entitled access to the transcript only if a parent publication by the Supreme Court” has been so designated by or the parents appeal the custody or visitation determination. the Supreme Court pursuant to 20 O.S.1991 §30.5, and shall be accorded precedential value. The Supreme Court retains the power to order opinions of the Court of Civil Appeals with- drawn from publication. 15. Jacobellis v. Ohio, 378 U.S. 184 (1964). About The Author 16. Interesting note in Foshee is the Petition for Dissolution of Mar- riage was filed Dec. 14, 2006, and the Joint Custody Plan and Agreed Decree of Dissolution of Marriage was filed only seven days later on Dec. Noel K. Tucker is a member of

21, 2006. Although not an Oklahoma County case, if it had been, the order may have violated the Oklahoma County District Court Rule The Tucker Law Firm with her 27(c) statute requiring 10 days (if no children) and 43 O.S. §107.1 which husband Phillip J. Tucker, in requires a 90-day waiting period between filing the petition and enter- ing a decree (if minor children are involved.) Edmond. She received her under- 17. Daniel v. Daniel, 2001 OK 117, 42 P.3d 863, joint custody of a graduate degree from the Univer- child is not proper where the parents are unable to cooperate. The party moving to terminate the joint custody plan must prove that the sity of Central Oklahoma and J.D. parties cannot sufficiently work together to reach joint decisions from regarding the child. Further, upon the determination that the parties cannot cooperate, the court must break the joint custody plan and School of Law in 1996. She is make an initial custody determination based upon the best interest of licensed to practice before Okla- the child. See also Rice v. Rice, 1979 OK 161, 603 P.2d 1125. 18. 43 O.S. §113.A. homa district courts, Supreme 19. 43 O.S. §113.B.1. Court, Federal Western District of Oklahoma and the 20. 43 O.S. §113.B.2. U.S. Supreme Court. She is a past chair of the OBA 21. 43 O.S. §113.B.3. 22. 43 O.S. §113.C. Family Law Section and continues to serve as the legis- 23. Hogue v. Hogue, 2008 OK Civ App 63, 190 P.3d 1177. lative chair and co-CLE chair. 24. Nelson v. Nelson, 2004 OK Civ App 6, 83 P.3d 911.

1800 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1801 1802 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW Grandparental Visitation: In a Child’s Best Interest? By Maren Minnaert Lively

randparental visitation has been a statutorily recognized right in Oklahoma since 1971. When it was first enacted, GTitle 10, Section 5 of the Oklahoma Statutes (§5) afforded grandparents and their grandchildren the right to visitation upon the death of a parent, if it was in the child’s best interest. The stat- ute was subsequently expanded over the years to apply in situa- tions involving divorce and other circumstances that disrupted a minor child’s nuclear family. As the Oklahoma Supreme Court recognized in some of its opinions, substantially all of the amend- ments were enacted in response to court rulings that denied grandparental visitation. Despite the continual expansion of the statute, the standard for granting visitation remained based on the best interest of the child.

By 1996, the statute had evolved to the point As a result of the United States and Oklahoma that any and all grandparents were entitled to Supreme Court rulings, the statute currently in visitation with their minor grandchildren based effect, which is located under Title 43, Section on a child’s best interest, even in situations 109.4 of the Oklahoma Statutes (§109.4), mini- where a child’s nuclear family remained intact mizes the courts’ abilities to award grandparen- and both parents objected to such visitation. In tal visitation based simply on the best interest of reviewing a lower court’s denial of a maternal a child. Instead, a grandparent must show not grandfather’s request for visitation, the Okla- only that visitation is in the best interest of a homa Supreme Court determined in 1998 that §5 child, but that a parent is unfit or the minor child was unconstitutional because it authorized would suffer harm if visitation is not granted, grandparental visitation without any showing and prove that the child’s nuclear family has of harm to the child or disruption to the child’s been disrupted by any of the statutorily defined nuclear family. Likewise, in 2000, the United occurrences. Rather than the child’s best interest States Supreme Court ruled a Washington stat- being the focal point, a court must first decide ute similar to §5’s 1996 version as unconstitu- parental unfitness, harm to the child, and disrup- tional because it violated parents’ liberty and tion to the nuclear family before it determines privacy rights to determine the best interests of whether visitation is in a child’s best interest. their children without state interference. Nonetheless, cases interpreting and applying §109.4 reveal an appreciation for grandparent

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1803 visitation and an interest in promoting a child’s Despite the numerous amendments, the relationship with his or her grandparent. Oklahoma Supreme Court remained steadfast in protecting a parent’s fundamental right to The following article reviews the history and the “companionship, care, custody and man- evolution of grandparental visitation under agement of his/her child.”12 With each opinion, Oklahoma law and analyzes two of the Okla- the court reiterated that a grandparent does not homa Supreme Court’s most recent decisions have a constitutional right to exercise visitation involving §109.4. Its focus is on situations with his or her grandchild, but rather, such where one or both parents have objected to right is limited to statute.13 It further empha- grandparental visitation, as opposed to cases sized that “[a] grandparent’s right to visitation where orders have been entered or modified is not co-equal with that of a parent.”14 Accord- based on parents’ agreements to afford grand- ingly, the court posited that any conflict parents visitation rights. between a parent’s right to rear his or her child ORIGINS AND HISTORY OF and a grandparent’s desire for visitation “must GRANDPARENTAL VISITATION be reconciled in favor of the preservation of the parents’ constitutional rights,” as the “relation- Enacted in 1971, §5 provided the initial statu- ship between parent and child must be held tory basis, albeit a limited one, for awarding paramount.”15 court-ordered grandparental visitation.1 Before its enactment, grandparental visitation was State Constitutional Concerns 2 dependent solely on parents’ consents. After Regardless of the court’s concern for the par- 1971, however, grandparents (and their grand- ents’ rights, §5 eventually came to mandate in children) were entitled to reasonable visitation 3 1996 that “any grandparent of an unmarried when one or both parents were deceased. The minor child shall have reasonable rights of standard for awarding such visitation was visitation to the child if the district court deems 4 based on the best interest of a child. it to be in the best interest of the child.”16 In Over the years, the statute was repeatedly considering whether to grant a paternal grand- amended in response to a number of court rul- father visitation over the objections of a child’s ings denying grandparental visitation.5 As the married parents, the Oklahoma Supreme Court Oklahoma Supreme Court noted in the case, In ruled in the case, In re Herbst, that the statute’s re Bomgardner, “[t]he manifest objective of the current wording violated the parents’ constitu- series of amendments was to make alienation tionally protected liberty and privacy rights.17 from grandparents remediable in all the The court determined that without any require- described circumstances.”6 ment of showing parental unfitness or harm to the child, the statute “clearly divest[ed] parents For example, in the case, In re Fox, the Okla- of the right to decide what is in their child’s homa Supreme Court interpreted §5, then best interest and [gave] that determination to existing in 1977, to be inapplicable in cases the district court.”18 The court further explained, involving adoptions.7 Specifically, the court “without the requisite harm or unfitness, the reversed an order granting the maternal grand- state’s interest does not rise to a level so com- mother visitation after the paternal grandpar- pelling to warrant intrusion upon the funda- ents had adopted the minor child due to the mental rights of parents.”19 mother’s death and the father’s consent to ter- minate his parental rights.8 A year after the Despite vacating the appellate court’s deci- court’s decision, the Oklahoma Legislature sion, the Herbst court recognized the importance amended §5 to protect grandparents’ visitation of a stabilizing relationship between a grandpar- rights in adoption proceedings where their ent and grandchild, especially in circumstances when one of the parents has died or the par- child was deceased and the surviving parent 20 had remarried.9 ents are divorced. Nonetheless, the court stated that “a vague generalization about the Nevertheless, with each amendment, the positive influence many grandparents have statutory standard for awarding grandparental upon their grandchildren falls far short of the visitation remained focused on the best interest necessary showing of harm which would war- of a child.10 Consequently, the parental interest rant the state’s interference with this parental was deemed to be subordinate to the child’s, decision regarding who may see a child.”21 As and it was recognized that visitation was not a result, grandparental visitation cannot be granted solely for the grandparent’s benefit.11 ordered over the objection of a fit parent with-

1804 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 out a showing of harm or potential harm to interfere with a parent’s right to determine the the child.22 best interest of his or her child.31 Federal Constitutional Concerns CURRENT OKLAHOMA LAW AND RECENT DEVELOPMENTS In 2000, the U.S. Supreme Court ruled in Troxel v. Granville that a Washington statute Title 43, Section 109 of the Oklahoma Statutes similar to the 1996 version of §5 violated the 23 In 2009, §5 was renumbered and is now 14th Amendment. The statute at issue granted found under §109.4.32 Due to the numerous “any person” at “any time” the right to visita- amendments and court decisions interpreting tion when it was deemed to be in the child’s 24 its application, Section 109.4 greatly differs best interest. The facts in Troxel involved the from its previous versions, which were cen- paternal grandparents seeking visitation with tered on the best interest of a child.33 Pursuant their minor grandchildren, over the mother’s to §109.4, a grandparent34 may be afforded objection, after the father had committed sui- 25 court-ordered visitation with his or her unmar- cide. Based on the broad language of the stat- ried, minor grandchild if: ute, the Washington court had awarded the grandparents’ request.26 1) Visitation is in the minor child’s best interest; In reviewing the state court’s decision, the Supreme Court determined that the statute 2) The minor child’s parents are unfit or impermissibly interfered with a parent’s fed- the grandparent has introduced clear and eral constitutional right to privacy under the convincing evidence to a) rebut the pre- 14th Amendment.27 The court based its holding sumption that a fit parent acts in a child’s on the following: best interest and b) demonstrate that with- out grandparental visitation the child 1) The grandparents had not made any alle- would suffer harm or potential harm; and gations of parental unfitness; 3) There has been a disruption to the minor 2) The lower court had failed to give due child’s intact nuclear family due to any of weight to a parent’s determination of his the circumstances specifically identified by or her children’s best interests; the statute.35 3) The burden had been wrongly placed on The Oklahoma Supreme Court has ruled that the mother to demonstrate that grandpa- only when the statutorily defined circumstanc- rental visitation was not in her children’s es in §109.4 exist may a court divest parents of best interests; their constitutional right to determine their 4) The lower court had not been guided by child’s best interest in favor of grandparents’ the presumption that a fit parent acts in his desires to exercise visitation with their grand- or childrens’ best interests; and children.36 5) The lower court had given undue weight With respect to the first factor, the burden is to the mother’s willingness to let her on the grandparent to show that visitation is in minor children visit the paternal grand- the minor child’s best interest.37 In evaluating a parents on a few occasions.28 child’s best interest, the court must consider and evaluate the 14 factors listed in the statute In his concurring opinion, Justice Souter and, if requested, make specific findings of fact explained that “when the granting of visitation regarding such factors.38 is ‘subject only to the State’s particular best- interests standard, the state statute sweeps too Despite its prominent position in the statute, broadly and is unconstitutional on its face.’”29 however, the Oklahoma Supreme Court has held that the elements of parental unfitness or Unlike the Oklahoma Supreme Court, how- harm to the child and a disruption to the nucle- ever, the Troxel court avoided considering ar family must first be proved before a court whether a showing of harm or potential harm may consider a child’s best interest.39 There- to the child was a necessary factor in granting 30 fore, the statute has evolved from centering on grandparental visitation. As the Oklahoma the child’s interest to preserving the parent’s Supreme Court specified in subsequent opin- constitutional rights. ions, however, the Oklahoma Constitution requires such a showing before the state can

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1805 Craig v. Craig Decided on April 12, 2011, Craig v. Craig effectively overruled two appellate court deci- …the burden is on the sions, Sicking v. Sicking40 and Hartness v. Hart- ness,41 and reiterated that grandparental visita- grandparent to show that tion can only be granted when the statutory requisites of §109.4 are satisfied.42 The facts in visitation is in the minor child’s Craig involved a divorce action in which the mother had been granted custody of her minor best interest. child, and the father had received visitation, to be supervised by the paternal grandparents.43 Although the father was not permitted over- night visitation with his child until he com- pleted a parenting program, the minor child had spent a few overnights with the paternal grandparents.44 Controversy developed be- tween the mother and grandparents when the grandmother permitted the child to stay over- night with a paternal aunt who lived in Arkan- sas without the mother’s knowledge or con- sent.45 Problems further escalated when the grandmother refused to inform the mother of the minor child’s activities while in the grand- parents’ care or acquire the mother’s consent before engaging the child in activities of which the mother disapproved.46 A year after the divorce decree was entered, the grandparents filed a motion in the divorce action, requesting court-ordered visitation with the minor child.47 Because the father had failed to exercise his visitation, the grandparents’ access to the minor child had been significantly hindered.48 Arguing against the grandparents’ efforts, the mother testified that the grandpar- ents were too controlling and refused to follow relied on the best interest standard, they failed the mother’s wishes with respect to her child.49 to reference or rely on any of the factors identi- Ultimately, the lower court ruled in favor of the fied in §109.4(E) for determining a child’s best grandparents by granting them court-ordered interest.55 50 visitation. In vacating the appellate court’s opinion In response, the mother appealed, arguing and reversing the trial court’s decision, the that the grandparents had failed to satisfy the Oklahoma Supreme Court emphasized that requirements of §109.4.51 The grandparents, on “[g]randparents have no constitutional right the other hand, asserted that the statute was to custody of or visitation with their grand- inapplicable and instead relied on the holdings children” and that “[v]isitation rights in the of Sicking and Hartness.52 The grandparents absence of a statute derive from a right to cus- argued that a) it was the father’s desire for tody.”56 Therefore, grandparental visitation them to exercise his visitation rights and b) can only be granted by statute.57 court-ordered grandparental visitation was in the minor child’s best interest.53 The grandpar- The court further explained that an order ents did not allege that the mother was unfit or permitting grandparental visitation without that the child would suffer harm without requiring satisfaction of §109.4 was tanta- grandparent visitation, but rather asserted that mount to state action.58 “[A] non-custodial it was in the child’s best interest to “maintain a non-parent third-party may not use the power strong and healthy relationship with her pater- of the state to compel a custodial parent to nal family.”54 Even though the grandparents relinquish custody and control over that par-

1806 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 ent’s child and submit to court-ordered visita- of the transition period.71 The court memorial- tion without satisfying the non-parent’s bur- ized the parties’ agreement into an order, but den of showing harm or potential harm in the made no findings as to parental fitness.72 absence of such visitation.”59 Less than a month later, the father committed Because the grandparents had failed to show suicide, spurring the mother to request imme- parental unfitness or prove that the child diate physical custody of the minor child.73 would suffer harm, the court never addressed Despite noting that custody had immediately the minor child’s best interest.60 become vested in the mother upon the father’s death, the trial court enforced the three-month Murrell v. Cox transition period.74 In the 2009 case, Murrell v. Cox, the Oklahoma Upon the completion of the transition period, Supreme Court overturned a trial court’s deci- another hearing was held wherein the child’s sion to award grandparental visitation, even counselor testified that it was imperative for though the mother had regained her status as a 61 the child to resolve his grieving for his father fit parent. Prior to the lower court’s final deci- before custody transitioned to the mother.75 sion, the paternal grandparents had previously The counselor was unable to state any time been granted a temporary guardianship of frame regarding the child’s grieving process.76 their grandchild based upon its finding that the mother was unfit.62 In making its ruling, the After expressing its disagreement with the trial court set forth a list of directives for the Troxel holding, the trial court ultimately found mother to complete in order to become a fit that the grandparents had met their burden parent and thus terminate the guardianship.63 and thus were entitled to grandparental visita- tion.77 The court based its ruling on the moth- A few months later, the mother filed a peti- er’s unwillingness to afford grandparental tion to terminate the guardianship, alleging visitation without a court order and a moral that she had completed the court-ordered pro- comparison of the mother’s and grandparents’ 64 gram to regain fitness. At the hearing, the court homes.78 applauded the mother on her improvements, but noted that the child would most likely suffer In overturning the decision, the Oklahoma anxiety from “being ripped from the living quar- Supreme Court determined that the lower ters where he is currently living and, apparently court should have ruled on the parents’ fitness has been living for a period of time.”65 Accord- when the parties agreed to terminate the guard- ingly, the court continued the matter without ianship and especially once the father had 79 ruling on the mother’s fitness.66 Several months committed suicide. If the mother had been later, another hearing was held at which time the deemed to be fit, then she would have been the court again continued the matter without mak- sole custodian of the child upon the father’s 80 ing any fitness determinations.67 death. “Absent [the m]other’s continued unfitness, the trial court was duty bound to Approximately a year after the mother had transition the child into [the m]other’s physical filed her petition to terminate the guardian- custody and to permit her to make decisions ship, the guardian ad litem appointed to the regarding the child’s welfare including his case issued a report, finding that both parents education.”81 were fit and recommending immediate termi- nation of the guardianship.68 Nonetheless, the The court acknowledged the lower court’s case was continued for several more months motivations to protect the child’s best interest, while the temporary guardianship remained in but explained that “[c]oncerns for the child’s effect.69 separation anxiety and the fact that he will con- tinue to grieve the loss of [the f]ather cannot Eventually, the parents and grandparents justify the continuing deprivation of [the reached an agreement outside of court to ter- m]other’s fundamental right to the care and cus- minate the guardianship.70 The parties further tody of her child if she has regained fitness.”82 In agreed to joint custody and visitation after a order to protect parents’ constitutional rights, three-month transition period during which parental unfitness or harm to the child must first time the parents would exercise custody alter- be proved before the best interest of the child is nating weeks for two consecutive days. At all evaluated.83 “This Court has consistently held other times, the minor child was to remain in that the right of a parent to the care, custody, the custody of his grandparents until the end companionship and management of his or her

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1807 child is a fundamental right protected by the 31. Id. at ¶9, 550. 84 32. Okla. Stat. tit. 43, §109.4. federal and state constitutions.” 33. Compare Murrell, 2009 OK at ¶26, 226 P.3d at 698 (applying the 2009 version of grandparent-visitation statute) with In re G.D.L., 1987 CONCLUSION OK at ¶¶3-6, 747 P.2d at 283-84 (analyzing 1971, 1978, 1981, and 1984 versions of the statute). Over the life of Oklahoma’s grandparent 34. The term, “grandparent,” includes a great-grandparent. Id. at §109.4(J). statute, the legislature and courts have battled 35. §109.4(A)(1); Murrell, 2009 OK at ¶26, 226 P.3d at 698. between whether the standard for granting 36. Murrell, 2009 OK at ¶26, 226 P.3d at 698. visitation should be based on the best interest 37. See §109.4. 38. §109.4(E). Such factors specifically include: of the child or focused on protecting a parent’s a. the needs of and importance to the child for a continuing pre- fundamental rights under the United States existing relationship with the grandparent and the age and reasonable preference of the child pursuant to Section 113 of and Oklahoma Constitutions. While the origi- Title 43 of the Oklahoma Statutes, nal statute and subsequent amendments b. the willingness of the grandparent or grandparents to encour- age a close relationship between the child and the parent or focused on the best interests of the child, the parents, current statute requires a finding that a parent c. the length, quality and intimacy of the preexisting relationship is unfit or that the child will suffer harm with- between the child and the grandparent, d. the love, affection and emotional ties existing between the par- out visitation before grandparental visitation ent and child, may be granted. These requirements protect e. the motivation and efforts of the grandparent to continue the preexisting relationship with the grandchild, parents’ fundamental rights to care for their f. the motivation of parent or parents denying visitation, children and determine their best interests g. the mental and physical health of the grandparent or grand- parents, without state interference. Yet, as Craig and h. the mental and physical health of the child, Murrell reveal, the lower courts, which are i. the mental and physical health of the parent or parents, intimately familiar with the parties and facts j. whether the child is in a permanent, stable, satisfactory family unit and environment, of each case, find it difficult to decide cases k. the moral fitness of the parties, based solely on parental fitness or harm to the l. the character and behavior of any other person who resides in or frequents the homes of the parties and such person’s interac- child without giving due regard for the posi- tions with the child, tive impact that a grandparent can have on a m. the quantity of visitation time requested and the potential adverse impact the visitation will have on the customary child’s life. activities of the child, and n. if both parents are dead, the benefit in maintaining the preex- 1. In re G.D.L., 1987 OK 115, ¶4, 747 P.2d 282, 283. isting relationship. Id. 2. Julien v. Gardner, 1981 OK 54, ¶2, 628 P.2d 1165, 1166. 39. Neal, 2000 OK at ¶12, 14 P.3d at 550 (analyzing Troxel, 530 U.S. 3. In re G.D.L., 1987 OK at ¶4, 747 P.2d at 283; In re Bomgardner, 1985 57 (2000)); In re Herbst, 1998 OK at ¶18, 971 P.2d at 399. OK 59, ¶4, 711 P.2d 92, 94; Julien, 1981 at ¶2, 628 P.2d at 1166. 40. 2000 Okla. Civ. App. 32, 996 P.2d 471. In Sicking, the father had 4. Julien, 1981 at ¶2, 628 P.2d at 1166. consented to his parents exercising visitation during his court-allotted 5. In re Herbst, 1998 OK 100, ¶7, 971 P.2d 395, 397; In re Bomgardner, time. Id. at ¶14, 474. Because the paternal grandparents were not being 1985 OK at ¶¶4-8, 711 P.2d at 94-95. afforded visitation independent of the father’s, but rather were simply 6. In re Bomgardner, 1985 OK ¶9, 711 P.2d at 95; see In re Herbst, 1998 using the father’s time, the appellate court determined that satisfaction OK at ¶7, 971 P.2d at 397; In re G.D.L., 1987 OK at ¶3, 747 P.2d at 283. of §109.4 was unnecessary. Id. at ¶¶11-14, 474. The court explained that 7. In re Fox, 1977 OK 126, ¶7, 567 P.2d 985, 987. if the father “chooses to foster a relationship between his parents and 8. Id. at ¶¶3, 7, 986-87. [the child] by allowing them to visit with [the child], either with or 9. In re Bomgardner, 1985 OK at ¶6, 711 P.2d at 94; Leake v. Grissom, without [the f]ather, during times when [the f]ather would ordinarily 1980 OK 114, ¶7, 614 P.2d 1107, 1109-10. visit with [the child] exclusively and such visitation is in [the child’s] 10. See In re Bomgardner, 1985 OK at ¶16, 711 P.2d at 97. best interest, [the m]other has no constitutional right to prevent it.” 11. Id. Id.at ¶14, 474. 12. Leake, 1980 OK 114, ¶8, 614 P.2d at 1110; see In re Grover, 1984 41. 1999 Okla. Civ. App. 138, 994 P.2d 1196. Similar to the facts in OK 20, ¶¶9-18, 681 P.2d 81, 83-84. Sicking, the father in Hartness had filed a waiver, consenting to his 13. Craig v. Craig, 2011 OK 27, ¶16, ___ P.3d ___, available at 2011 parents exercising visitation with his minor child when he was unable WL 1366493, at *4 (Apr. 12, 2011); Murrell v. Cox, 2009 OK 93, ¶25, 226 to do so. Id. at ¶1, 1197. When the mother objected based on the ruling P.3d 692, 698. in In re Herbst, the lower court denied the grandparents’ request for 14. Murrell, 2009 OK 93, ¶25, 226 P.3d 692, 698. visitation. Id. Ultimately, the appellate court reversed and remanded 15. Id. (quoting In re Herbst, 1998 OK at ¶17, 971 P.2d at 399). the lower court’s decision, stating that the holding in In re Herbst was 16. In re Herbst, 1998 OK at ¶8, 971 P.2d at 397. inapplicable. Id. at ¶4, 1197. 17. Id. at ¶¶10, 12-19, 397-99. 42. Id. at ¶¶16, 21-28; 2011 WL 1366493, at *4-8. 18. Id. at ¶9, 397. 43. Id. at ¶3, *1. 19. Id. at ¶13, 398. 44. Id. at ¶¶3-4, *1. 20. Id. at ¶15, 399. 45. Id. at ¶4 *1. 21. Id. at ¶16, 399; Craig, 2011 OK at ¶25, 2011 WL 1366493, at *7. 46. Id. at ¶¶4, 6-8, *1-2. 22. In re Herbst, 1988 OK at ¶16, 971 P.2d at 399. 47. Craig, 2011 OK at ¶3, 2011 WL 1366493, at *1. 23. Neal v. Lee, 2000 OK 90, ¶6, 14 P.3d 547, 549. 48. See id. 24. Id. 49. Id. at ¶8, *2. 25. Id. at ¶5, 549. 50. Id. at ¶0, *1. 26. Id. 51. Id. at ¶11, *3. 27. Id. at ¶6 549. 52. Id. 28. Craig, 2011 OK at ¶21, 2011 WL 1366493, at *5; Neal, 2000 OK at 53. Craig, 2011 OK at ¶¶13-14, 2011 WL 1366493, at *4. ¶7, 14 P.3d at 549. 54. Id. at ¶¶22-24, *6-7. 29. Craig, 2011 OK at ¶21, 2011 WL 1366493, at *5 (quoting Justice 55. Id. Souter’s concurring opinion in Troxel v. Granville, 530 U.S. 57, 56. Id. at ¶16, *4 (quoting Murrell, 2009 OK at ¶25, 226 P.3d at 698, 76-77 (2000)). and Barber v. Barber, 2003 OK 52, ¶9, 77 P.3d 576, 580). 30. Neal, 2000 OK at ¶¶7, 9, 14 P.3d at 549-550 (citing In re Herbst, 57. Id. 1998 OK at ¶18, 971 P.2d at 399). 58. Id. at ¶25, *7.

1808 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 59. Craig, 2011 OK at ¶25, 2011 WL 1366493, at *7. 60. See id. at ¶¶22, 24-28, *6-8. 61. Murrell, 2009 OK at ¶¶31-33, 226 P.3d at 699-700. About The Author 62. Id. at ¶4, 694. 63. Id. Maren Minnaert Lively prac-

64. Id. at ¶5, 694. 65. Id. at ¶6, 694. tices in Tulsa. Her firm, Lively 66. Id. Law PLLC, focuses on family law, 67. Murrell, 2009 OK at ¶8, 226 P.3d at 695. 68. Id. at ¶10, 695. probate, estate planning, general 69. Id. at ¶11, 695. litigation and appellate work. She 70. Id. at ¶12, 695. 71. Id. is also a volunteer for Legal Aid 72. Id. Services of Oklahoma. A South 73. Murrell, 2009 OK at ¶13, 226 P.3d at 695. 74. Id. Dakota native, she received her 75. Id. at ¶15, 696. J.D. from Georgetown University, 76. Id. 77. Id. at ¶18, 696. where she served as senior articles and notes editor for 78. Id. at ¶19, 696-97. The Georgetown Journal of Gender and the Law. She 79. Murrell, 2009 OK at ¶28, 226 P.3d at 698-99. graduated as a top 10 senior with highest honors in 80. Id. 81. Id. at ¶31, 699. economics and political science from OSU. 82. Id. at ¶31, 699. 83. See id. at ¶¶30-32, 699. 84. Id. at ¶24, 698 (quoting In re Grover, 1984 OK at ¶9, 681 P.2d at 83).

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1809 1810 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW So You Think You Want to Be a Guardian Ad Litem? The Perils and Pitfalls of an Undefined Area of Practice By Michael D. Johnson t’s a question that comes to any attorney who practices family law at some time or another. Do I want to take an appointment Ias a guardian ad litem? The initial examination reveals some very positive aspects. You work for the best interests of the kids; everyone loves the kids and wants what is in their best interest, right? You get a chance to work with two attorneys in a situation where they at least start out less adversarial toward you than in a normal petitioner/respondent setting. You get paid for hanging out with some cute kids and in the end, all you have to do is make a few recommendations that the court doesn’t even have to follow if you happen to get it wrong. So far this sounds pretty inviting, but if you don’t do all of your homework, you could be in for a big surprise.

Often, relatively new practitioners use the ney to attorney. Add to all this the fact that the court-appointed GAL role to build their resume. guidance promised by the statutes has never This can be a risky proposition and deserves due materialized and it makes practice as a GAL consideration. The practice of law in the role of very difficult indeed. guardian ad litem is a mine field that could sink The author is concerned about the require- one’s career before it gets out of the harbor. ments imposed by the new statutory changes, Word of a poor performance as a GAL spreads the lack of a “GAL Handbook” that was sup- much faster than word of a good performance. posed to be created by the Administrative Office Production of a logically unsound report will of the Courts, and the specific expectations of most definitely harm your reputation with the individual judges relative to GALs appointed in judge and could preclude future appointments. cases in different counties or even different There are some very serious issues that have courtrooms within the same county. not been adequately addressed by the courts or This article is intended to address issues relat- the Legislature. There are differing opinions as ed to guardian ad litem appointments in divorce, to what a guardian ad litem should or should paternity and other custody related matters. not do that vary from court to court and attor-

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1811 Appointments in guardianships, deprived and are tasked with many of the same case manage- juvenile cases present different concerns and ment issues that are handled by PCs in other are outside the scope of this treatise. courtrooms. This blending of roles varies greatly WHAT IS THE ROLE OF THE GAL? between jurisdictions. The statutes create the dual role of the guard- The parenting coordinator statute requires a finding by the court that the parties can afford ian ad litem as an advocate for the interests of 3 the child and as an arm of the court for investi- a PC. There is no such requirement in the gative purposes. GAL statute. Further, there are issues that dic- tate the appointment of a GAL, not so with a In divorce and custody cases, 43 O.S. §107.3 PC. In the adoption and deprived statutes, the states “The guardian ad litem may be appointed appointment of a GAL is mandatory upon to objectively advocate on behalf of the child request of a party, the state, placement agency, and act as an officer of the court to investigate the attorney for the child or other person that all matters concerning the best interest of the has a right to custody. The guardianship stat- child.” ute also requires the appointment of a GAL in In adoption proceedings, 10 O.S. §7505- cases involving minors and incompetents 1.2(B)(1) states, “The court may appoint a sepa- upon request or sua sponte. rate guardian ad litem for the minor in a con- The role of a GAL in a custody case varies tested proceeding and shall appoint a separate greatly from courtroom to courtroom. Depend- guardian ad litem upon the request of a party, ing on the specifics of the case and the parties the minor, the attorney of the minor, prospective involved, a GAL may be called on to provide adoptive parent, or a person or agency having many services that are not enumerated in the physical or legal custody of the child.” statute. Often a GAL is called on to provide In deprived proceedings, 10A O.S. §1-4- mediation or arbitration services. Coordination 306(B)(1) provides, “After a petition is filed, the of visitation exchanges, supervision of visita- court shall appoint a guardian ad litem upon the tion and facilitation of same are issues that request of the child or the attorney of the child, routinely arise which may require considerable and may appoint a guardian ad litem sua sponte after-hours or weekend time commitments. or upon the request of the Department of Human Additionally, the GAL is often asked to pro- Services, a licensed child-placing agency, or pose a custody or visitation structure during another party to the action.” Subparagraph (3) settlement conferences. further provides “The guardian ad litem shall be Determining the existence of a child’s prefer- appointed to objectively advocate on behalf of ence, if any, examining the basis of that prefer- the child and act as an officer of the court to ence and making recommendations to the investigate all matters concerning the best inter- court on the reasonableness and relative intel- est of the child.” ligence of said preference is often a part of the In guardianship cases the role is controlled by analysis required. The GAL is most definitely 30 O.S. §1-117, wherein it says, “At any point in tasked with recognizing the existence of abuse a guardianship proceeding, the subject of the or neglect and performing the required report- proceeding, his attorney, the guardian of the ing should same be indicated. subject of the proceeding or anyone interested in Some tasks that are enumerated in the stat- the welfare of the subject of the proceeding may utes present sub-issues that are less clear. For file an application to have a guardian ad litem example, the GAL is given the power to request appointed by the court, or the court on its own psychological testing or other services that motion may appoint a guardian ad litem. If not may be needed for the children. They are fur- precluded by a conflict of interest, a guardian ad ther given access to all medical and psycho- litem may be appointed to represent several per- logical records for the children as well as the sons or interests.” parents. An area that is unclear is that of There are treatises that address the differences requesting that the parents engage in counsel- between a guardian ad litem and an attorney for ing or other psychological services. Is it appro- the child so that relationship is clear.1 There is priate for a GAL to make such a request or perhaps less clarity when defining the line should such a filing remain within the purview between a parenting coordinator (PC) and a of the attorneys that represent the parents? GAL.2 In some courtrooms, guardians ad litem Another issue that is raised is the ability of the

1812 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 parents to afford such services and the appor- ferently by judges in different jurisdictions. tionment of those costs between the parties. Many feel that the nature of the appointment as an arm of the court allows such contact, oth- The GAL is treated as a party as far as the ers disagree. Some judges have said that they service of pleadings, attendance at all hearings can spot inappropriate ex parte communica- and full participation in same. What is less tions and would handle any such communica- clear is the level of involvement that is appro- tion in the same manner, no matter what the priate when it comes to filing motions that attorney’s role. Many attorneys feel strongly might affect the custody or visitation that is about this subject as well. As one might expect, currently in place. Certainly such actions could those strong feelings cover a wide range of be construed as advocating for the best inter- notice issues and ethical concerns. The answer ests of the children, yet one must take into to this question may also differ based on the account that the Supreme Court recently ruled type of appointment, the nature of the discus- that a GAL did not have standing to appeal sion and the issues addressed. and was not “a party to the case.”4 The dual role as an agent of the court further compli- DISCLOSURE cates this issue. GALs are currently considered experts under There is currently a wide range in the variety 43 O.S. §120.7.6 As such, there are disclosure of services provided by GALs. There is also a requirements that GALs must comply with. This wide range in the quality of the services pro- requirement creates another list of questions vided by GALs. Appointment of a GAL who is relative to appointment as a GAL such as: not willing to put forth the effort required or • If the attorneys agree to the appointment of who may be poorly trained can be catastrophic a specific GAL in open court, does that to your case. The wise family practitioner will provide the GAL any protection from explore this fully with their client and should attacks related to their qualifications? develop a short list of acceptable candidates that offer a variety of viewpoints and fee structures. • D oes the signing of an agreed order pro- The statute provides for a manual of standards vide more protection than an oral agree- and best practices and a certification of some ment in court? sort.5 None of these items exist and there is cur- • If any such protections might be assumed, rently no ongoing effort to create them. As a would that change the duty of the GAL to result, there are no standards by which to judge provide a resume? List of relationships the performance of a GAL in a case. with each attorney? List of relationships This lack of a standard causes as much con- with the judge? cern for a GAL as it does for an attorney rep- • Might the answer to those questions be dif- resenting a parent. Being subject to cross ferent if one attorney had a history with the examination, is a GAL open to attack from suggested GAL while the other attorney both sides on the GAL’s methods, procedures did not? and training? How about the personal habits or beliefs of a GAL — are they subject to the • Might the answer be different if the issue is rigors of cross examination? Do attorneys that the GAL has had a reprimand? Should waive the right to object to the qualifications of the reprimand be required to be disclosed a GAL when they agree to the appointment if it was a non-published reprimand? and sign the order appointing GAL? • What information or qualifications are The new deprived statutes require that an appropriate for inclusion on the resume attorney working as a GAL have six hours contemplated by the statute? annually of CLE in child specific subjects. Once again, clarity and direction would be helpful to • Does a general statement that would set establish a curriculum that assures every can- forth whether a GAL had ever dealt with didate possesses an appropriate basic skill set. one or both attorneys meet the statutory As it currently stands, is a GAL open to attack requirements or does the GAL need to state based on their choice of CLE? how many cases they may have appeared in as opposing counsel with each attorney and An area that needs to be addressed is the how many times they may have been a GAL propriety of ex parte communications between in cases involving each attorney? Should a a GAL and the judge. This issue is handled dif-

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1813 GAL be required to disclose whether their with the remainder to be refunded. This seems report favored an attorney’s client? to be an appropriate step to take since the GAL’s work is often heavily back loaded with • Do counsels for the parties waive specific many of the hours in a case spent in preparing objections to the GAL appointment (quali- a report and appearing at trial. fications, duties, powers and other related issues) when they sign an Order created by A payment question that may directly affect the GAL? Is this different if the order is a the case is the relevance of one party’s failure court provided form? or inability to pay GAL fees as an indicator of the party’s ability to provide the necessary It is important to know how a failure to com- support for the children. This raises the sub- ply with the requirements of section 120.7 will question of whether such discussions with a impact the GAL. Increased amounts of useless party might subject a GAL to an attack by paperwork add costs and headaches that have counsel that such thoughts biased or preju- made some attorney practitioners question diced the GAL’s recommendations. whether they will continue to accept GAL appointments. The final order in a case can address some of the payment issues. It can establish that the ISSUES RELATED TO PAYMENT OF FEES fees were necessary and reasonable based on One of the things that can force an attorney the particular circumstances of the case. It can to stop taking GAL appointments is the inabil- order the parties to pay the fees by a date cer- ity to get paid for some cases. tain, set forth a payment plan, A new set of questions arises require that the fees be paid when one acquires customers from the property settlement who aren’t really your clients. and to grant a judgment in When an attorney is appointed One of the things favor of the GAL. as a GAL, neither parent has What other steps should a created an attorney/client rela- that can force an GAL be expected to take in tionship that can be the basis order to collect on a debt owed of a fee agreement. Some fur- attorney to stop taking by a parent? It is most likely ther contractual obligation is appropriate to use contempt of obviously necessary to protect GAL appointments is the court to address the failure to the GAL, but the question pay GAL Fees when included becomes what is necessary and inability to get paid for in the final order, but is the what is appropriate. Does the initial order of appointment GAL appointment order do some cases. sufficient to support indirect enough to establish privity of contempt if it merely states contract between the GAL and that the fees will be split equal- the parents, or is a separate ly between the parties? In most appointments, contract or engagement letter required between this is the only order on file that specifically the GAL and each parent separately? addresses payment of fees. It is also not clear if What is the propriety of requesting payment it is proper to file an attorney’s lien when of fees that are overdue prior to completion of appointed as a GAL. the case and preparation of a report that recom- WITHDRAWAL ISSUES mends one parent for custody? What is the propriety of requesting a withdrawal based on An often overlooked issue is that of withdraw- the non-payment of fees by one or both parents? al of an attorney at the end of a matter. This is no This question obviously becomes more compli- different in representation as a GAL. There are cated when one party has fully complied with some additional questions that come into play their obligations while the other has not. due to the nature of the representation and the fact that the GAL is appointed to serve. A good solution may be to require an “ever- green” retainer. This would require each party • Should a final order include a provision to deposit their initial retainer and then pay for that releases the GAL from their duty in the the services rendered each month as reflected case? If so and no such provision is made, on the GAL’s billing statement. The result is what are the implications? that the retainer is used to pay the final bill

1814 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 • Absent some new order, does the GAL job properly requires dedication and commit- have power to act after the journal entry ment. If the job is done well, the input of the has been filed? GAL can be very helpful; done poorly it can severely damage a case. Having a GAL appoint- • If the GAL is to have some continuing ed in a divorce case is risky for both parents and duties, should the order set a trigger for their counsels as well. Challenging the findings GAL withdrawal? of a GAL is very difficult even if you can show • Is such a trigger sufficient to signal the end they were neglectful in their investigation. On of the involvement of the GAL? the other hand, the best rebuttal to an incorrect GAL report is the presentation of evidence that • Is it necessary to file something with the demonstrates bias or blatant material error in court to show that the trigger was engaged their investigation or analysis. and the matter is now closed? GALs do not make custody determinations; PROTECTION FOR THE PRACTITIONER that is the responsibility of the court. However, There may be ways to protect oneself from judges and attorneys alike recognize the value some of the issues presented. Of course, the of a competent and well-trained GAL. Their order appointing guardian ad litem is the best ability to provide insight and evidence in a place to start. The practitioner should include a non-confrontational manner may enhance the waiver of the disclosure requirements in their chances of settlement. With the caseloads that order of appointment. Payment terms should the courts are handling, it is likely that they be set forth as well. The author believes that a will continue to utilize the services of the GAL separate agreement or addendum to the order in a number of different ways. It is imperative should be provided that clearly sets out the that some of these issues be addressed and responsibilities for payment. Such an adden- clarified. Failure to do so will ultimately be dum should be signed by each party. detrimental to the courts, the parties, the attor- neys and most of all, the children. Make sure all the initial provisions are com- plied with prior to meeting with either party. 1. For a discussion of the standards and practices in representation This can include the return of your question- of children, see National Association of Counsel for Children, Legal Representation of Children – Recommendations and Standards of Practice for naire, signature on releases, payment of a retain- the Legal Representation of Children in Abuse and Neglect Cases. er, setting initial appointments and any other 2. See the Parenting Coordinator Act, 43 O.S. §120.3 3. See 43 O.S. §120.5. State assumes no financial responsibility for item that you feel may be important to have parenting coordinator. completed before you begin work on the case. 4. See Rowe v. Rowe, 2009 OK 66. 5. 43 O.S. §107.3(A)(4). Enlist the help of the parties’ attorneys. All 6. In this session, there were two bills that addressed the removal of GALs from the application of this statute; HB 1568 and SB 765; nei- practitioners encounter payment problems. Most ther was successful. would assist a fellow attorney if they could. Be aware of the policies of the judges that appoint you. Know what they will do to help you collect fees that are due and what they would like to see in your order of appointment. About The Author In the final order, be sure to include items that are important to you as a GAL. The final Michael D. Johnson practices order should address whether the appoint- family law with the Johnson Law ment should continue or terminate. Payment Firm in Norman. He has a bache- can be ordered and reduced to judgment if lor’s degree from OU and a J.D. appropriate. from the OU College of Law. He CONCLUSION is married with three children and practices with his partner and The practice of law as a guardian ad litem is step-mother, Jan Grant-Johnson. demanding of one’s time and energy. To do the

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1815 1816 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW Children and School Law By Julie Miller, Shelley Shelby, James Murray and Jessica Sherrill

hildren arguably spend an equal amount of time at school as they do at home during the school year. Issues that affect Cchildren at school might come into play in court in child custody, divorce or guardianship cases, and any court decisions may affect the child at school. There, administrators often must settle disputes of noncustodial and custodial parents as their per- sonal matters spill into the child’s school life. As an attorney, there are some practical steps to follow to ensure that your client is covered even when their child gets to school.

WHO CAN PICK UP THE CHILDREN FROM Parents are often upset that schools will not SCHOOL? AND, WHEN? take their word on matters like who may pick up Ordinarily, a parent or guardian has the right the children from school. Most schools’ policies to pick up his or her child from school at any read that parents must provide a court order, time. But, what is a school to do when two par- divorce decree or other custody order if there are ents are literally pulling the limbs of their child restrictions on the parent’s access at school. fighting over who “has her” that day? School As we are to keep in mind the best interests of administrators are often called to parking lots the child, there might be a benefit to taking the and driveways to figure this out between par- next step in deciding custody matters to deter- ents or maybe a parent and other family mem- mine a list of who can pick up children from bers. As it is, the school will honor the wishes of school and on which days. Perhaps the parents whichever parent has custody or visitation of can come to an agreement as to who can pick up the child on that particular day. the children from school (e.g. grandparents, For example, if it is the custodial parent’s day step-parents, etc.) no matter who has the child to “have” the child, then only the custodial par- that day. ent can decide who can pick that child up from WHAT ABOUT EDUCATIONAL RECORDS? school that day. The noncustodial parent cannot make demands that only the custodial parent Parents are entitled under the Family Educa- tional Rights and Privacy Act (FERPA) to inspect picks up the child; likewise, the custodial parent 1 cannot make those demands on days when the and review their child’s educational records. noncustodial parent has visitation. That is, unless This will include (but is not limited to) the stu- the court has ordered otherwise, and the school dent’s grades, class schedule, Individualized is aware of such order. Without a court order or Education Program, medical information, disci- visitation schedule on site, the school won’t pline records, addresses and phone numbers. have any guidance and will call law enforce- Regardless of who has custody, both the custo- ment to handle any familial dispute. dial and noncustodial parent have the same

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1817 right of access under FERPA, unless the court lose all unsupervised visitation. In the circum- specifically restricts otherwise.2 stance that the parent visits the child at school, it would be helpful for school administration STEP-PARENTS AND SIGNIFICANT OTHERS to be aware, for instance, if a parent is not allowed by the It is interesting to note that court to eat lunch with their either of the biological parents child at school. And, it might can sign a FERPA release that …dad could be helpful for the court to will allow any person to have know what is happening with access to information regard- provide his new wife, the child at school, including ing the child’s educational who is visiting the child at records. Absent a legal docu- girlfriend, etc. with school. ment to the contrary, neither parent can negate the other’s permission to access his Attorneys and DHS workers choice as to who may have involved in these deprived educational records of the child’s records. matters will want to keep the child. school updated in writing as to how much access, if any, the As a result, mom could pro- parents are allowed to have vide her boyfriend, cousin, aunt, etc. with per- with the child at school. Whatever the last pro- mission to access her child’s educational vided court order provides is what the school records. And, dad could provide his new wife, will follow. Any subsequent court orders can girlfriend, etc. with permission to access his only be followed, if provided timely. child’s records. Neither mom nor dad could SCHOOL EMPLOYEES AS WITNESSES restrict the other’s choice to access records absent a court order. Therefore, it is possible The child’s teachers might be a great resource that, in addition to mom and dad, also mom’s in determining how the child is doing at home boyfriend, aunt and friend as well as dad’s or while in the care of a particular parent or new wife or girlfriend all have access to the guardian. Though, there are some statutory same educational information. considerations when requesting teachers to PARENT/TEACHER CONFERENCES testify in court proceedings. State law requires that any person subpoenaing a teacher pay up Absent a court order to the contrary, both to $100 per day to the school district so that it parents are able to participate in parent/teach- can hire a substitute teacher for that subpoe- er conferences. Most school districts are willing naed teacher’s class.4 to conduct separate parent/teacher conferenc- es for divorced parents in an effort to eliminate The intent of this measure is to minimize the a potentially troublesome situation. If a joint disruption of students’ class time. In most parent/teacher conference is held, and the par- cases, the teacher will not be able to make a ent or parents create a disturbance on school determination as to which parent is the “bet- premises, the school district superintendent or ter” parent for child custody as the teacher principal would have the legal authority to interacts with the parent(s) in a very limited prohibit the parent or parents from being on setting. It would be very unusual for a teacher school premises for six months.3 to be able to make such a judgment call based upon this limited interaction. But, nonetheless, WHAT ABOUT CHILDREN IN teachers are sometimes subpoenaed to testify DHS CUSTODY? as to a child’s educational performance and the Outside of typical family law matters, there parents’ involvement at school. is the instance that a child is in the care and THE OBVIOUS EFFECT OF A custody of the Department of Human Services. TERMINATION OF PARENTAL RIGHTS In these cases, the parents may or may not have visitation rights at all, or visitation oppor- Of course, the termination of parental rights tunities may vary depending on meeting the will cease all parental involvement and access court’s plan and goals at each court date. to the child at school - that is, if the school is provided the Order Terminating the Parental For example, a parent might have visitation Rights. Again, this all boils down to the school rights for a while, but then fail a drug test and being aware of what happens in court. As prac-

1818 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 titioners, please keep the school updated on any termination of parental rights. About The AuthorS FINAL PRACTICAL TIPS Julie Miller earned her under- The school can be a great resource to attor- graduate degree in political sci- neys who practice in areas that involve children, ence/public administration from but please keep in mind that the school has a the University of Wisconsin- primary duty to educate children. Therefore, it is LaCrosse and J.D. from OCU best for the school to focus on educating chil- School of Law. She is employed as dren rather than on attempting to mediate custo- general counsel and director of dial issues. Please keep school administration policy services for the Oklahoma aware of any changes in visitation, custodial State School Boards Association. arrangements, placement changes and so on. She is a member and has served as president of the The school can only operate to follow its own Oklahoma School Boards Attorneys Association. legal restrictions if it is aware of what is hap- pening with its students. If a school district is Shelley Shelby earned her not provided with any legal documentation, undergraduate degree in politics both parents have equal access to the child. and English from Mount Holyoke College in Massachusetts. She 1. 20 U.S.C. §1232g. 2. 43 O.S. §109.6. obtained her J.D. from OU Law 3. 21 O.S. §§1375 & 1376. and was admitted to the bar in 4. 28 O.S. §84.1. 5. The termination of parental rights will in effect terminate the 2005. She has served as director parent’s right to control the child’s education and training. 10A O.S. of legislative services and staff §1-4-906. attorney at the Oklahoma State School Boards Association since 2005.

James Murray is a staff attorney and director of legal information for Oklahoma State School Boards Association, where he has served since January 2007. James earned his undergraduate degree in letters from the University of Oklahoma. He earned his J.D. from the OU College of Law in 2006. James has made presenta- tions on several school law issues across the state and at the National School Boards Association Annual Conference.

Jessica Sherrill earned her undergraduate degree in psychol- ogy from OU and J.D. from OCU School of Law. She has served as a staff attorney for Oklahoma State School Boards Association and the director of Oklahoma Public Schools Unemployment Compen- sation Account since August 2008. She also presents across the state on various topics relating to school and unemploy- ment law. She is a Rotarian and a graduate of Leader- ship OKC LOYAL Class III.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1819 1820 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW Guardianship of Minors By Evan Taylor

f in your practice you deal with the general public, you have probably already received a call from someone who has ques- Itions about guardianship of a child. If not, then you soon will. It is a common proceeding used by relatives and even close friends to care for a child when the child’s parents cannot or will not do so. The purpose of this article is to describe the mechanics of a guardianship of minor children according to the Oklahoma Guardianship and Conservatorship Act (the act), Title 30 O.S. §1- 101 et seq, and related laws. This article does not address guard- ianships which may be granted pursuant to juvenile deprived proceedings found in the Oklahoma Children’s Code, Title 10A O.S. §1-1-101, nor does it address issues which may arise in con- tested guardianship litigation.

THE PETITIOn Human Services is a necessary party to these proceedings, and must be given notice pursuant The guardianship process begins when a per- to Title 12 O.S. §2004.3 Additionally, if the minor son seeking guardianship files a verified peti- child has a living parent or other person legally tion with the court.1 The petitioner should set responsible for the support of the child, the forth in the petition her relationship to the ward, court is required to provide for the payment of the ward’s age, the general grounds for the child support.4 Therefore, the petition should guardianship, and the names and contact infor- also contain a request that child support be mation for the persons who are entitled to notice addressed. of the proceeding. If the petitioner is seeking appointment as the guardian of the property of Guardianships of children are child custody the minor child, then she should also identify proceedings under the Uniform Child Custody any income, property, and the value of the prop- Jurisdiction and Enforcement Act (UCCJEA), erty. As will be discussed in more detail below, if Title 43 O.S. §551-101 et seq, and the court grant- the minor has sufficient income and assets, the ing the guardianship must have jurisdiction to court may require the guardian to post a bond.2 initially determine custody or modify an exist- If the minor does not have sufficient income or ing custody order.5 Therefore, the petitioner property, the petition should request that bond should also include with the petition the required be waived. statements necessary to establish jurisdiction under the UCCJEA.6 If public assistance money, medical support or child support services have been provided for Venue over a minor child guardianship is in the benefit of the child, the Department of the district court in which the child resides or in

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1821 the county where the proposed guardian more of the factors listed in Title 43 O.S. §112.5.17 resides if the proposed guardian is a member The discussion of contested third-party custody of the minor’s family.7 The court making the cases exceeds the scope of this article. guardianship appointment then has exclusive A legal parent may nominate a guardian for jurisdiction over the case.8 their child in a will or written instrument.18 TEMPORARY ORDER One parent may not, however, circumvent the other parent’s legal right to guardianship or If there is a need for an “emergency” tempo- custody by nominating a person with an infe- rary order of guardianship, such as the need to rior right to guardianship or custody.19 A child immediately enroll a child in school, obtain 14 years old or older may nominate his own medical care, or remove the child from imme- guardian; however the court will determine diate harm, the court may enter a temporary whether a guardian is necessary and who shall order.9 The request for a temporary order must serve as guardian.20 either be included in the petition or by separate application, and the specific grounds must be When choosing the guardian, the court included in the request. should be guided by Title 43 O.S. §112.5, which establishes the order of preference for guard- The court may grant a temporary order of ianship or custody of a child.21 Generally, the guardianship ex parte, but must thereafter set order of preference is a parent, grandparent, a a show cause hearing within 20 days after person who was indicated by the wishes of a entering the temporary order.10 Notice of the deceased parent, a relative of a parent, a person show cause hearing must be given to those who has had custody of the child or any suit- persons entitled to notice of the guardianship able person selected by the court. proceedings. The court must further consider whether the NOTICE proposed guardian is eligible under the act by The petitioner must serve notice of the action inquiring whether the proposed guardian 1) is on the then-living parents of the child or other a minor or incapacitated; 2) has a record of person who has custody.11 If there are no living criminal conviction, protective order or pend- parents, then the petitioner must serve one of ing criminal charges; 3) is insolvent or has the then-living grandparents. If there are no declared bankruptcy in the preceding five living grandparents, then the petitioner must years; 4) has a conflict that would prevent the serve an adult relative residing in the county in proposed guardian from acting in the ward’s which the petition is filed. Also, if the child has best interests; and 5) is under any financial attained the age of 14, then notice must be pro- obligation to the ward.22 If any of these eligibil- vided to the child as well.12 ity issues are present, the petitioner should identify them in the petition. The court may The petitioner must mail notice to the per- order the petitioner to present an Oklahoma son’s last-known address 10 days prior to the State Bureau of Investigation (OSBI) or other hearing date.13 The act does not require service background check and make further inquiry according to Title 12 O.S. §2004 (except for into the surrounding circumstances. If eligibil- notice to DHS child support enforcement). The ity issues are present (other than minority or court, however, may direct that notice be given incapacity), the court may nevertheless appoint by means other than mailing or may even the proposed guardian if he or she is able to act waive notice.14 Notice to a minor child who has in the ward’s best interests. The court may also attained the age of 14 may not be waived.15 It is order a home study.23 advisable to contact the guardianship court to determine the preferred method of service. If guardianship is based on abandonment of a child, a qualified relative may be able to pro- GROUNDS AND ELIGIBILITY OF THE GUARDIAN ceed under §2-117. This section includes model forms and allows for a reduced filing fee. A guardianship may be ordered whenever it is BOND necessary and convenient.16 In most contested cases when either parent is living, a guardian- The court may order the proposed guardian ship proceeding is generally a third-party cus- to post a bond before entering the order tody case. In such a case, the petitioner must appointing the guardian and issuing letters of prove by clear and convincing evidence one or guardianship. Generally, if the anticipated

1822 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 annual income to the ward for one year plus guardian the authority to act on behalf of the the value of the personal property owned by minor child. In the order, the court must the ward is less than $40,000, the court may include the conditions of appointment — pro- order that a bond is not necessary.24 If bond is viding for the care, treatment, education and not waived, Section 4-201 advises that the bond welfare of the minor.30 Further, in any guard- shall be set in an amount not less than the ianship of a minor who has living parents, the value of the intangible personal property with order must include a provision for child sup- sufficient sureties and in such penal sum as port, which will be collected by income assign- determined by the court. The amount of the ment as in other child custody cases.31 If the bond may be adjusted in the future based on Department of Human Services is a necessary the annual accountings and upon the order of party to the action, Section 2-108(C) requires the court. Further, the court may also set a that the state sign and approve any orders con- bond for the guardian of the person as security cerning paternity, child support, medical sup- that the guardian will fulfill her duties.25 port or the debt due the state. As a practice note, it is advisable to make sure the court’s reasons for entering the guard- ianship are noted in the order or clearly in the record. As discussed below, the reasons for As a practice note, it is granting the guardianship over a parent’s objection, or even by agreement, are important advisable to make sure the to the subsequent termination of the guardian- court’s reasons for entering the ship once impediments have been removed. REPORTS guardianship are noted in the order The guardian of a minor may have to file an annual report with the court. If the guardian- or clearly in the record. ship is solely over the person of the minor, no report need be filed unless required by the court.32 The court may not waive the filing of PLANS FOR CARE any report in excess of five years.33 The guardian may be required to submit a If the minor has property, then the guardian plan for the care of the ward and the ward’s must file an annual report. property if the ward’s property is included in The annual report shall be mailed to those the guardianship. If the plan for care of the entitled to notice under Section 2-101 for the ward is not filed with the petition, the peti- initial hearing, as well as the ward’s attorney, if tioner may submit it to the court at the time of any. The report must contain a statement that the hearing or within 10 days of the guardian’s objections must be filed within 15 days. Upon 26 appointment. The petitioner may present the receiving the annual report the court may plan for care of the property within the same approve the report or set a hearing. The court time periods, or the time may be extended by may order a new bond if there are changes to the court for up to two months after the guard- the ward’s property. Model guardianship 27 ian’s appointment. The initial plan for care of reports can be found in Sections 4-305 and 4- the property must include an inventory of the 306. Although the form in Section 4-305 relates ward’s property, including the guardian’s opin- to adult guardianships, it may be tailored for ion of the value of the estate. The court may not minor child guardianships. The court clerk’s 28 waive the inventory. Further, at the request of office may also have forms available for use. any interested person the property must be appraised in the same manner as in a probate Reports are required for children if there is matter. Model plans are included in the stat- any significant change in the condition of the utes.29 minor or in the condition of the estate of the minor.34 Additionally, the guardian is required ORDER AND LETTERS OF to report to the court if she changes the ward’s GUARDIANSHIP place of abode within the county.35 Court In all guardianships, the court must issue an approval must be obtained to establish or order and letters of guardianship giving the change the place of abode outside the county.36

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1823 TERMINATION 6. See 43 O.S. §551-209. The party must give information about the child’s current address, the places the child has lived during the past five years and the names and present addresses of the persons with The guardianship of a child ceases upon 1) whom the child lived during that period. The party must further removal of the guardian, 2) the solemnized inform the court whether she has participated as a party or witness in marriage of a ward, 3) the ward’s attaining any other proceedings concerning custody or visitation, whether she 37 knows of any other proceedings, the identity of those proceedings, if majority, or 4) termination by the court. The any, and state the names and addresses of any party who has physical guardian may be discharged by the court one custody of the child or claims rights of legal custody or visitation with the child. year after the child reaches majority, unless the 7. 30 O.S. §1-115. child, with court approval, discharges the 8. 30 O.S. §1-114. 38 9. 30 O.S. §1-114(B)(7). guardian before then. A guardian may also be 10. Id. removed for reasons that include misconduct 11. 30 O.S. §2-101(D). or failure to perform duties, or if the guardian- 12. 30 O.S. §2-101(E). 13. 30 O.S. §2-101(E). 39 ship is no longer proper. 14. Id. 15. Id. Should a natural parent seek to terminate the 16. 30 O.S. §2-101(A). 17. See also Hood v. Adams, 1964 OK 217, 396 P.2d 483. guardianship, the parent must show that the 18. 30 O.S. §2-102. impediments that led to the guardianship no 19. See generally 43 O.S. §112.5. longer exist and the parent is a fit and proper 20. 30 O.S. §2-103 and §2-104. 40 21. 30 O.S. §2-103(B). person to have custody. Upon such a show- 22. 30 O.S. §4-105. ing, as well as proof that the child’s best inter- 23. 30 O.S. §2-101. 24. 30 O.S. §4-201. est will be served, the parent is entitled to ter- 25. Id. mination of the guardianship. 26. 30 O.S. §3-120. 27. 30 O.S. §3-122. FURTHER RESOURCES 28. 30 O.S. §4-301. 29. 30 O.S. §§3-120, 3-122. The Administrative Office of Courts provides 30. 30 O.S. §2-109. 31. 30 O.S. §2-108. some excellent materials on guardianships at 32. 30 O.S. §4-303. www.oscn.net under forms and Administra- 33. 30 O.S. §4-303. 34. 30 O.S. §4-303. tive Office of Courts. These materials (available 35. 30 O.S. §1-120. in Wordperfect, Word and Adobe Acrobat) 36. Id. 37. 30 O.S. §2-113. include a handbook and many of the model 38. 30 O.S. §§2-114, 2-115. plans and reports included in the statutes. 39. 30 O.S. §4-801. 40. Matter of Guardianship of M.R.S., 1998 OK 38, ¶ 26, 960 P.2d 357, Legal Aid of Oklahoma also offers forms and 364-5. information at their website www.oklaw.org. CONCLUSION As you can see, the mechanics of a guardian- About The Author ship for children are relatively straightforward, even if Title 30 is not. I hope that this brief Evan Taylor practices in the article will be of use to you next time someone area of divorce and family law in comes to your office asking for guardianship of Norman. He served for two years a child. in the U.S. Peace Corps and speaks fluent Russian. He plays 1. 30 O.S. §2-101 indoor soccer, has an amateur 2. 30 O.S. §4-201 3. 30 O.S. §2-108(C) radio license, studies Tae Kwon 4. 30 O.S. §2-108 Do and is a member of Norman 5. 43 O.S. §551-102(4) “Child Custody Proceeding” means a proceed- ing in which the legal custody, physical custody, or visitation with Sooner Rotary Club. He has had respect to a child is an issue. The term includes a proceeding for divorce, some great clients who have separation, neglect, abuse, dependency, guardianship, paternity, termi- nation of parental rights, and protection from domestic violence, in taught him a lot about the practice of law and how to which the issue may appear. The term does not include a proceeding do it kindly. involving juvenile delinquency, contractual emancipation, or enforce- ment under Article 3 of this act. S.W. v. Duncan, 2001 OK 39.

1824 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 8:00am - 8:45am 1:00pm - 1:50pm Approved for Continuing Legal Education of 6.0 Registration, Coffee & Doughnuts Kraettli Epperson - Transfer on Death Deeds hours (including 1 hour of ethics). Registration fees: $150.00 for pre-registrations received 9:00am - 9:50am 2:00pm - 2:50pm prior to the Institute date; $175.00 for walk-in Kraettli Epperson - Title Standards Update Carolyn Thompson - Recent Developments registration. Lunch, Dinner and materials in Family Law included in Registration Fee. Pre-registration 10:00am - 10:50am 3:00pm - 3:50pm is required for lunch and dinner. Cancellations Ted Sherwood - Tort Reform Travis Pickens - Ethics 2011: Recent Developments & Trends will be accepted at any time prior to the Institute 11:00am - 11:50am 3:50pm - 5:00pm date; however, a $50.00 fee will be charged Susan Conrad - Horizontal Drilling Social Hour for cancellations made within three (3) days of the Institute date. No requests for refunds of 12:00pm - 1:00pm 5:00pm - 7:00pm cancellations will be considered after the date of Barbeque Lunch (Included in Registration Fee) Steak Dinner (Included in Registration Fee) & Recognition of Honored Guests the Institute.

2011 Boiling Springs Legal Institute Registration Form Full Name Firm Name Address E-mail Phone Fax OBA Member? OBA Number (for CLE credit) I will be unable to attend the seminar. Please send materials only. ($50.00) Do you plan to stay for the Evening Social Hour and steak dinner? Yes No *Please note that the Boiling Springs Golf Course is currently open. Please make check payable to the Woodward County Bar Association and mail this form with check to Erin N. Kirksey, Woodward County Bar Association, P.O. Box 529, Woodward, OK, 73802. For more information, please call Erin N. Kirksey at 580.256.5517.

NOTICE OF JUDICIAL VACANCY

The Judicial Nominating Commission seeks applicants to fill the following judicial office:

District Judge Twenty-Second Judicial District, Office 3 Seminole County, Oklahoma

This vacancy is due to the retirement of the Honorable Gary Snow effective Sept. 1, 2011.

[To be appointed to the office of District Judge, one must be a registered voter of the respective judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointees shall have had a minimum of four years experience as a licensed practicing attor- ney, or as a judge of a court of record, or both, within the State of Oklahoma.]

Application forms can be obtained online at www.oscn.net under the link to Judicial Nominat- ing Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, OK 73105, (405) 556-9862. Applications must be submitted to the Chairman of the Commission at the same address no later than 5 p.m., Friday, Sept. 2, 2011. If applications are mailed, they must be postmarked by midnight, Sept. 2, 2011. Allen M. Smallwood, Chairman Oklahoma Judicial Nominating Commission

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1825 THE MUSCOGEE (CREEK) NATION DISTRICT COURT “DOING BUSINESS IN INDIAN COUNTRY” Nine Years of Quality CLE

August 18th and 19th River Spirit Event Center Tulsa, Oklahoma

Moderators: Shelly Grunsted, BA, JD, LL.M, Professor - University of Oklahoma Patrick E. Moore, BBA, JD, LL.M, Muscogee (Creek) Nation District Court Judge

Some of the many faculty members include: Hon. Jerry McPeak, Oklahoma State Representative, MCN Tax Commissioner Judith V. Royster, JD, Professor of Law, Rick Moore, JD, Rick D. Moore and Associates, Norman, Oklahoma Tim Pleasant, JD, Professor of Law, Concord Law School of Kaplan University Alissa Hurley, JD, Partner – Connors and Winters LLP, Tulsa, Oklahoma Dr. Jim Collard, Director of Economic Development - Potawatomi Nation John Williams, JD, Partner – Connors and Winters LLP, Tulsa, Oklahoma Andrew Adams III, JD, Jacobson, Buffalo, Magnuson, Anderson, Hogen PC Rod Wiemer, JD, Special Prosecutor, Muscogee (Creek) Nation Attorney General’s Office

COURSE OUTLINE - DAY ONE

August 18, 2011 8:30 Registration and Breakfast 8:40 Opening Ceremony 8:50 Welcome and Introduction – Honorable Patrick E. Moore 9:00 State Tribal Compact Update – Honorable Jerry McPeak 10:00 Break 10:10 Internet Gaming and Tribal Sovereignty – Andrew Adams III 11:00 Internet Gaming and Tribal Implications – Andrew Adams III 11:50 Lunch – Visions Buffet 1:15 Due Diligence with Intertribal Relationship and Investments – Rick Moore

2:20 Break 2:30 How the OIWA Affects Tribal Relationships with Investors – Rick Moore 3:30 Intergovernmental Economic Development – Dr. Jim Collard 4:50 Question & Answer Session and Evaluations of Day 1 – All Faculty and Speakers 5:00 Supreme Court Swearing in Ceremony - Visions Buffet 5:30 Buffet Dinner provided at the River Spirit Casino in conjunction with the Annual Meeting of the Muscogee (Creek) Nation Bar Association

1826 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 COURSE OUTLINE - DAY TWO

August 19, 2011

8:50 Opening Remarks – Honorable Patrick E. Moore 9:00 Implications and Consequences of the Tribal Law and Order Act – Professor Tim Pleasant 10:00 Break 10:05 Ethical Dealings with Tribal Governments and Tribal Courts – New Developments – Professor Tim Pleasant 10:55 Break 11:00 Tribal Land Acquisitions – Federal Law updates – Professor Royster 12:00 Lunch – Visions Buffet 1:30 Green Energy – How Tribes Can Get in on the Action – John Williams 2:20 Break 2:30 The Health Care Law’s Implications on Tribes – Alissa Hurley 3:20 Tribal Court Practice – Working Your Way Around a Tribal Court – Courtney E. Smith 3:50 Cossey v. Cherokee Nation Enterprises - Implications and other Federal Indian Law Updates – Rod Wiemer 4:30 Closing Comments and Evaluations of Day 2 Adjourn **Scheduled agenda – minor changes may occur

Tuition Structure: $225 Walk-in Registration - $250 (if space available)

Cancellations will be accepted at any time prior to seminar date, however, a cancellation fee of $50 will be charged. 14.0 Hours of CLE Credit with 1 hour of ETHICS

------REGISTRATION FORM DOING BUSINESS IN INDIAN COUNTRY - 2011 Name______Firm/Organization______Address______City______State______Zip______OBA Member ___Yes ___No OBA Bar # ______EMail______

Make Check payable to Muscogee (Creek) District Court - CLE Program and mail form to: Muscogee (Creek) District Court P.O. Box 652 Okmulgee, OK 74447

For more information contact the District Court @ 918.758.1400 or by email: [email protected] Visit us at www.muscogeecreektribalcourt.org

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1827 1828 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW Best Interest Advocacy in Deprived Court: A Necessity By Jennifer M. Warren

very year thousands of children in Oklahoma are removed from their homes due to abuse or neglect. They are taken Efrom everything that is familiar to them, placed into a shel- ter or foster home, and assigned a case number in deprived court. With the filing of a petition alleging a child deprived due to abuse or neglect, the child’s future is swept up into a series of hearings, meetings and judgment calls that will forever change her life. In Oklahoma County alone, more than 2,230 abuse or neglect cases were filed in the 2010 fiscal year. Article 1 of Title 10A of the Okla- homa Statutes, labeled as the “Children’s Code,” controls these deprived child proceedings and grants jurisdiction over these cases to the Oklahoma District Courts.1 The court is required to review a deprived case at least once every six months2 and is guided by the Legislature’s intent that “the paramount consider- ation in all proceedings within the Oklahoma Children’s Code is the best interests of the child.”3 But how does the court determine what is actually in a child’s best interest? Who represents this viewpoint in a deprived case? In the majority of deprived child cases in Oklahoma, the answer is no one.

ROLES AND RESPONSIBILITIES IN office.4 If a deprived case is filed, a DHS child wel- DEPRIVED COURT fare worker is assigned to oversee the case. While At every hearing in a deprived case, the dis- the child welfare worker is guided by the general trict attorney, child’s attorney and a child wel- mandate to act in the best interests of the child, her fare worker from the Department of Human role is invariably more complex and nuanced. Services (DHS) are present to speak for their They work not only with the child in mind, but respective positions. Each of these parties has its also with the parents involved and the familial own defined role and agency policies to repre- interests at issue. Additionally, as a unit of the sent. Initially, it is DHS that conducts the inves- state, DHS child welfare workers have numerous tigation into abuse or neglect allegations and policies, procedures and guidelines that influence reports its findings to the district attorney’s their actions and limit their discretion.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1829 Also present at every deprived hearing is an best interests of the child throughout any judi- assistant district attorney. The district attor- cial proceeding, and present[ing] written ney’s office is responsible for determining reports on the best interests of the child that whether to file a petition alleging the child to include conclusions and recommendations and be deprived and it acts as the petitioner on the facts upon which they are based.”10 The behalf of the state throughout the case.5 The work of a guardian ad litem must be thorough, child is also assigned counsel — typically a and in determining “best interests” in a public defender or volunteer counsel.6 Impor- deprived case she should review documents, tantly, the child’s attorney is required to repre- conduct interviews, observe parent-child inter- sent “the child and any expressed interest of actions, investigate placements and spend time the child.”7 Thus, it is the attor- with the child. Oklahoma pre- ney’s responsibility to advo- sumes that permanency is in a cate for a child’s stated requests child’s best interests,11 and regardless of whether the attor- much of a GAL’s focus will ney believes that is in the The GAL/CASA likely be on achieving a per- child’s best interest. The manent home for the child as appointment of counsel to rep- is an independent, soon as possible. Notably, resent the child’s expressed when a guardian ad litem is interests is essential since the objective voice that requested in a deprived case, child’s future is determined by priority may be given to the the outcome of these proceed- has no agenda to appointment of a court- ings. In addition to these par- appointed special advocate ties, the “informal” hearings in serve but the child’s (CASA). A CASA is a volun- a deprived case may involve teer adult who is trained and any number of people, includ- interests… supervised by a local court- ing parents, counsel for the appointed special advocate parents, placement providers, program.12 The CASA is service providers, therapists charged with the same duties and more. as a GAL, but serves with no compensation.13 CASA of Oklahoma County, Inc. has approxi- With all of these individuals present, a judge’s mately 240 active volunteers serving as a best bench can quickly become crowded with con- interest advocate in a deprived case each year, flicting opinions. If the “paramount concern” but there are many other children who do not in all proceedings within the Children’s Code have the benefit of this advocacy. is truly supposed to be the child’s best inter- ests, there is clearly a crucial party missing THE SIGNIFICANCE OF A GUARDIAN from most deprived cases. In the vast majority AD LITEM of child welfare cases there is no party charged Although limited resources and funding will solely with investigating, discovering and rep- be a barrier to appointing a GAL/CASA in resenting a child’s best interests. The Children’s every deprived case, the significance of having Code lays out when a guardian ad litem may be a best interest advocate, especially in the most appointed to represent this position but most complex and heinous cases, should not be cases never have the benefit of this type of 8 underestimated. There are several reasons why advocacy. In fact, only about a third of cases in having a GAL or CASA involved in a child Oklahoma County currently have a guardian welfare case is beneficial. Perhaps the most ad litem (GAL) or other advocate appointed to important justification for the involvement of a represent the best interests of the child during GAL/CASA is that she is the only party who hearings and other proceedings. has a duty to represent only the child’s best In the event that a guardian ad litem is interests. The GAL/CASA is an independent, requested and appointed to a deprived case, objective voice that has no agenda to serve but she is required to “objectively advocate on the child’s interests and she may zealously behalf of the child and act as an officer of the advocate for this position without regard to court to investigate all matters concerning the state policies or internal agency procedures. If best interests of the child.”9 Her duties include “best interests” is the paramount concern in “advocat[ing] for the best interests of the child deprived cases, it only makes sense to have a by participating in the case…monitor[ing] the trained, independent individual designated to

1830 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 search out and represent what exactly is in the child involved in the case, but also provides child’s best interests. With the multitude of the court with an individual who has valuable, parties that might be present at a deprived firsthand knowledge of a case’s history. Anoth- hearing, having a GAL/CASA present to speak er unique and valuable aspect of a CASA’s up for best interests helps ensure that this cru- involvement is her ability to advocate for the cial position is not overlooked. child’s best interests outside of the confines of the courtroom. If needed, a CASA may advo- The high case loads of the attorneys, social cate for a child’s needs with the Department of workers and therapists involved in a typical Human Services, the child’s school, the place- deprived proceeding also justifies the appoint- ment providers and the service providers. ment of a GAL/CASA. The number of cases CASA’s goal is to give a voice to a child’s best and clients other parties serve, and the nature interest, regardless of what that requires. of deprived court, means that some of the indi- viduals at a typical hearing will have met with CONCLUSION the child infrequently — if at all in some cases. The Children’s Code acknowledges that “the While these parties have numerous clients and state has an interest in its present and future are often pulled in different directions, a GAL/ citizens as well as a duty to protect those who, CASA likely has only a few, or sometimes just because of age, are unable to protect them- one, child welfare case to focus on. This distinc- selves.”14 In the court cases that influence the tion is even more pronounced if a CASA is lives of the most vulnerable and innocent citi- appointed as she typically takes on only one case zens there is a responsibility to take every at a time. With only a single deprived case, the precaution available to ensure that they are CASA can devote more time to becoming famil- protected and that their needs are met. Appoint- iar with the case and getting to know the child ing an advocate to represent a child’s best and the child’s needs. The value of having an interest in a deprived case is a crucial step to individual who has had recent face-to-face con- fulfilling this responsibility. tact with the child and the other parties in the case cannot be underestimated when decisions 1. Okla. Stat. tit. 10A, §1-4-101(A)(1). are being made that will dramatically affect the 2. Okla. Stat. tit. 10A, §1-4-807(A)(1). 3. Okla. Stat. tit. 10A, §1-1-102(E). well-being and the future of the child. 4. Okla. Stat. tit. 10A, §1-2-102(A). 5. Okla. Stat. tit. 10A, §1-4-501. The presence of a GAL/CASA on a deprived 6. Okla. Stat. tit. 10A, §1-4-306(A)(2). case can also ensure that the child is receiving 7. Id. 8. See Okla. Stat. tit. 10A, §1-4-306(B). all the services she needs and is not deserted in 9. Okla. Stat. tit. 10A, §1-4-306(B)(3). the social services system. A child in a deprived 10. Id. 11. Okla. Stat. tit. 10A, §1-1-102(B)(6). case has invariably been caught in a traumatic, 12. Okla. Stat. tit. 10A, §1-4-306(C)(1). devastating situation. She is often desperately 13. Okla. Stat. tit. 10A, §1-4-306(C)(2)-(3). in need of therapeutic services, medical evalu- 14. Okla. Stat. tit. 10A, §1-1-102(A)(3). ations, educational assistance and protection. A GAL/CASA is another set of eyes on a case to ensure that any services that are needed are About The Author actually provided. Jennifer M. Warren works in

The involvement of a court-appointed spe- cial advocate in a deprived case brings some child advocacy for the Court additional benefits beyond the functions of an Appointed Special Advocates of ordinary guardian ad litem. While a child wel- Oklahoma County. She has a B.A. fare case often sees multiple changes in social in politics from New York Univer- workers, therapists, placement providers and sity and received her J.D. from the others, the CASA often stays with a case until OU College of Law in 2010. it is closed. The consistent presence of a CASA not only brings comfort and stability to the

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1831 1832 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW Child Advocacy: Helping Children Who Have a Parent in Prison By Barbara Woltz

INTRODUCTION ne Friday in March, a grade-school age Tulsa girl lost her mother, her older brother and her home. She lost her Omother to death, apparently by accidental fatal intoxica- tion. She lost her 19-year-old brother when he was arrested when the police came to investigate the death of the mother and discov- ered multiple one-pot meth labs. She lost her home when she was removed from the home and placed into DHS custody.

This tragic story is repeated in communities NEW HOPE: SERVICES STATEWIDE AND throughout Oklahoma every day – children losing IN TULSA AREA a parent or other family member to incarceration, The purpose of a child advocacy program such and, through that loss, losing much more. A Sep- as New Hope is to intervene in the lives of these tember 2010 study estimated that 27,000 children children to stop the intergenerational cycle of in Oklahoma have a parent in prison. This study, incarceration. Studies show that these children the 2010 Kids Count Oklahoma Factbook issued by face problems such as being traumatized by sepa- the Oklahoma Institute for Child Advocacy ration from their parents, confused by their par- (OICA), is available at www.oica.org/kids-count. ents’ actions, and stigmatized by the shame of the Factbook five The also said that these children are situation. Deprived of income and guidance, times more likely to go to prison themselves than these children are vulnerable to poverty, stressful their peers. shifts in caregivers, separation from siblings and One thing is different about this girl that will other family disruptions. Statistics show that hopefully make her story one of redemption these children are more prone to serious aca- instead of continued tragedy: she attends an demic and disciplinary problems in school and to after-school program at her elementary school use of alcohol and illegal drugs. that is offered by New Hope, a Tulsa-based non- All of these theoretical or statistical problems profit organization that provides services to for the population of Oklahoma’s children who children who have a parent in prison. Such pro- have a parent in prison are experienced in real- grams in this state are few, but lawyers who ity by the children New Hope serves. Children practice in criminal law should be aware of can feel free to express feelings of guilt, anger, these resources for referral of their clients’ chil- and difficulty with school in New Hope after- dren if that client is or will be incarcerated. school programs and summer camps designed

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1833 to help them cope with the significant prob- mentoring for adolescents who have a parent lems they face. in prison. New Hope’s residential summer camps are Big Brothers Big Sisters of Oklahoma pro- free to Oklahoma children ages 8-17 who have vides one-on-one mentoring for children with a parent in prison. This summer, New Hope a parent in prison, and New Hope refers its provided a week of summer younger clients to BBBS for camp for over 150 children, these services. BBBS calls their and the camps are designed to program “Amachi,” which is a address the issues of these at- Nigerian word from the Ibo risk children. Children have a The purpose of people that means “who chance to just be kids as they knows but what God has participate in swimming, boat- a child advocacy brought us through this child.” ing, games, and arts and crafts, Additional information is but the children also interact program such as New available at www.bbbsok.org. with counselors who had simi- STATE TASK FORCE lar experiences growing up and Hope is to intervene learn about the shared experi- In the past legislative ses- ence of having a parent in pris- in the lives of these sion, House Bill 1197 created a on. This allows them to not feel 21-member task force that will stigmatized in the safe environ- children to stop the include seven subcommittees ment that New Hope provides to deal with issues of safety, and gives them many opportu- intergenerational cycle collecting good information nities to talk about their issues about the number of children in this safe environment. The of incarceration. with a parent in prison, out- camps are designed to help the reach and education, economic children learn life skills includ- supports and research. The ing conflict resolution and group will also serve as a anger management while increasing their clearinghouse for resources and review exist- social and emotional development by partici- ing legislation that affects children of incarcer- pating in and leading group activities, sports ated parents. The task force must issue a report and chores. by Jan. 1, 2012. New Hope also provides weekend retreats for CONCLUSION children across the state, including horse retreats Children suffer when a parent is incarcerat- where the children learn how to listen, follow ed. For the practicing lawyer, providing infor- instructions, and practice perseverance and mation to clients about programs like New patience while learning how to ride and to care Hope, Youth Services of Tulsa, Tulsa Commu- for horses. New Hope’s after-school services are nity Service Council and Big Brothers Big Sis- only available in the Tulsa area at the present ters could make a difference in a child’s life time. Two afternoons a week, children ages 4-17 and could help reduce Oklahoma’s problem meet at a central downtown Tulsa location. Two with intergenerational incarceration. afternoons a week, New Hope provides its after-school program at two Tulsa elementary schools. Additional information is available online at www.newhopeoklahoma.org. About The Author OTHER PROGRAMS AVAILABLE Barbara Woltz is an attorney in New Hope is not the only nonprofit that is Tulsa. In her 24-year career, she attempting to address the needs of this popula- has practiced law in a law firm, in tion. The Tulsa Community Service Council, corporate offices and as a federal www.csctulsa.org, convenes a group that meets law clerk. She is an active volun- monthly called Children of Incarcerated Par- teer with New Hope, a Tulsa- ents (COIP). New Hope is an active participant based nonprofit that works with in this group which includes a dozen organiza- Oklahoma children who have a tions. New Hope collaborates with Youth Ser- parent in prison. vices of Tulsa, www.yst.org, which provides

1834 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 HANDBOOK OF SECTION 1983 LITIGATION, 2011 EDITION David W. Lee . Lee Law Center, P.C. . Oklahoma City

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Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1835 1836 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Children and the LAW Children and Family Law: A Practitioner’s Resource Guide By Jennifer Stevenson Prilliman

egal matters involving family members are some of the most difficult to assist our clients through. The situations Lare often emotionally charged and every case is unique. Navigating these matters when a child is involved becomes even more complicated due to the number of emotional, financial and public policy considerations involved. Knowing where to begin the research process will reduce the time and cost of resolving the matter for both the client and attorney. This article provides an introduction to research resources available for attorneys work- ing with adoption, guardianship, child support, paternity and custody cases. This is not an exhaustive list, but will provide a new or experienced attorney with a basic set of resources to begin proceeding in a family law matter involving children.

OKLAHOMA STATUTES AND RELATED nent Relinquishment Form” found at Okla. Stat. UNIFORM LAWS tit. 10 §§7503-2.3. • Oklahoma Indian Child Welfare Act, Okla. • Oklahoma Uniform Parentage Act, Okla. Stat. tit. 10, §§40-40.9 (2011) — Passed in 1982 in Stat. tit 10, §§7700-101 to 7800 (2011) — Adopted compliance with the federal Indian Child Wel- in 20062 from the Uniform Parentage Act (2000) fare Act of 1978,1 this act provides a framework (Revised 2002)3 prepared by the Uniform Law for proceeding when finding placement for a Commission, this act sets out the guidelines for child who is a member of or eligible to be a determining and enforcing parentage. member of a Native American tribe. • Oklahoma Children’s Code, Okla. Stat. tit. • Oklahoma Adoption Code, Okla. Stat. tit 10, 10A, §§1-1-101 to 1-10-102 (2011) — In the §§7501-1.1 to 7510-3.3 (2011) — The Adoption unfortunate circumstance where a child is Code addresses both child and adult adoptions. determined to be deprived, the Children’s The Adoption Code provides an outline and Code provides advocates, family members and specifications for the adoption process in Okla- foster parents with “the foundation and pro- homa and many of the required basic forms are cess” for intervention. imbedded in the code itself, such as the “Perma-

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1837 • Okla. Stat. Title 30 Guardian and Ward — ized versions of the acts with comments are When confronted with a situation where a freely available in HTML and PDF format from minor needs to be placed in a new home due to the Uniform Law Commission’s website.8 his or her parents’ death or inability to contin- Thomson West’s publication Uniform Laws ue to care for the child, a guardian will need to Annotated (U.L.A.) contains the acts with the be appointed. This title covers both the guard- commission’s comments and with added West ianship of minors and adults and the rules for annotations to law review articles, Corpus Juris conservatorship. Secundum and American Jurisprudence 2nd arti- cles, notes of decisions, and West Key Number • Divorce and Alimony, Okla. Stat. tit. 43, references. The U.L.A. also summarizes state §§101 to 140 (2011) — These statutes set out the adoption practices and language variations basic requirements for divorce, alimony, cus- from state to state. The print version is updated tody and child support. Experienced family with an annual pocket part. Depending on law attorneys are well versed in these statutes. your contract, the U.L.A. may also be available However, if you are taking on your first divorce through Westlaw and WestlawNext. LexisNex- case or have not worked in family law for a is’s Martindale-Hubbell Uniform and Model Acts while, you will want to review these statutes database and HeinOnline both carry the uni- carefully. form laws. • Parenting Coordinator Act, Okla. Stat. tit. OKLAHOMA SPECIFIC TREATIES, 43, §§120.1 to 120.7 (2011) — Custody and sup- HANDBOOKS, AND STATUTE port agreements are often contentious and dif- COMPILATIONS ficult to negotiate. The court may appoint, either with or without permission of the par- The books discussed below are Oklahoma ties, a parenting coordinator to facilitate a par- specific resources. Most of these resources are enting agreement. available in the OCU School of Law Library, OU College of Law Library, and the TU Col- • Oklahoma Uniform Child Custody Juris- lege of Law Library. Please call any of these diction & Enforcement Act, Okla. Stat. tit. §§43, libraries or your local county law library for 551-101 to 551-402 (2011) — Based on the Uni- more information. form Law Commission’s Uniform Child Cus- tody and Enforcement Act (1997),4 this uniform • Melissa DeLacerda, Oklahoma Family Law, act replaced the Uniform Child Custody Juris- Oklahoma Practice Series Vol. 4 (St. Paul, MN: diction Act and revised Oklahoma’s laws to Thomson/West 2007) — Oklahoma Family Law, comply with federal standards, namely the a part of the Oklahoma Practice Series, is an Parental Kidnapping Prevention Act of 1980.5 It excellent resource for experienced and begin- creates consistent standards for interstate ning attorneys. It explains the family law stat- enforcement of child custody and visitation utes, provides sample forms and petitions, agreements.6 provides practice tips and includes valuable case and statute citations. It is available in print • Oklahoma Uniform Interstate Family Sup- and through Westlaw and WestlawNext. Chap- port Act, Okla. Stat. tit. §§601-100 to 601-901 ters 6-12 explain child custody and visitation, (2011) — Similar to the above act, this act was child support, parenting coordinators and the adopted from several of the Uniform Law Uniform Interstate Family Support Act. This Commission’s uniform acts of the same name.7 text is updated with annual pocket parts. This act regulates the enforcement of interstate child and family support agreements. In 2008 • Michelle C. Harrington, Oklahoma Family Law: Direct and Cross Examination Suggested the Uniform Law Commission finalized a new Questions, Ideas and Outlines (Dallas: Imprima- version of the act. Currently Oklahoma has not tur Press 2004) — This text provides sample adopted the 2008 act. examination questions for most matters relat- UNIFORM LAW COMMISSION ing to divorce and custody, including divorce with minor children, custody and suits affect- The Uniform Law Commission’s comments ing the parent-child relationship. accompanying the Uniform Parentage Act, Uniform Child Custody and Jurisdiction • Robert G. Spector, Carolyn S. Thompson Enforcement Act, and the Uniform Interstate and D. Marianne Brower Blair, Oklahoma Family Family Support Act supply a wealth of inter- Law: Divorce and Adoption Statutes and Rules pretative information for an attorney. The final- Annotated 2010-2011 (Dallas: Imprimatur Press

1838 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 2010) — This comprehensive compilation of TREATISES-MULTI JURISDICTION annotated Oklahoma divorce and adoption • Joan Heifetz Hollinger et. al, Adoption Law statutes and rules is an affordable alternative to and Practice (New York: Matthew Bender & Co. purchasing West’s Oklahoma Statutes Annotated 2010) — This comprehensive treatise covers all or the Uniform Laws Annotated. The annotations aspects of domestic and international adop- include statute cross references, case citations tion. It is available as an annually updated with analysis and related uniform law com- three-volume loose-leaf set or electronically ments. New editions are printed annually. from LexisNexis. • Robert G. Spector, Oklahoma Family Law: • Sandra Morgan Little, Child Custody and The Handbook 2010-2011 (Dallas: Imprimatur Visitation: Law and Practice (Matthew Bender & Press 2010) — A complementary text to Okla- Co. 2010) — This four-volume loose-leaf set homa Family Law: Statutes and Rules Annotated, discusses a wide range of custody-related chapters five and six of this resource provide issues including international child custody an analysis of child custody, visitation and sup- enforcement, disputes between parties and port. It offers explanation of the policy behind mediation. It is updated twice a year. It is also many of Oklahoma’s statutes and citations to available electronically from LexisNexis. relevant case law. • Sarah H. Ramsey and Douglas E. Abrams, • C. Steven Hager, Indian Child Welfare Act: Children and the Law in a Nutshell (St. Paul, MN: Case and Analysis CD-ROM, Colline Meeked Thomson/West 3rd 2008) — Providing a gen- (Oklahoma City: Oklahoma Indian Legal Ser- eral overview of laws related to children and vices 15th ed. 2011) — A PDF on a CD-ROM, juveniles and the policy and history behind this resource analyzes both federal and state those laws, this Nutshell is a good basic text for case law impacting the act. It includes Okla- anyone needing a quick refresher course on homa and Federal statutes, Department of children’s legal issues. It covers all aspects of Interior rules and basic forms. The PDF is eas- children and the law including criminal law, ily searchable and user friendly. This detailed family law, torts and property. compilation is available from Oklahoma Indian Legal Services for $35.9 • Laura W. Morgan, Child Support Guidelines: Interpretation and Application (New York: Aspen • West’s Oklahoma Family Law 2011 (St. Paul, Law and Business 2010) — This guide walks MN: Thomson/ West 2010) — This statute lawyers through the steps of applying child compilation pulls together most of Oklahoma’s support guidelines and when and how to devi- family law statutes. What is nice about this ate from those guidelines. It is updated annu- resource is the combined index which allows ally and available electronically from Westlaw, you to easily find related statues in different WestlawNext, and LoisLaw. titles. It is updated annually. • BNA Family Law Reporter (Washington • 2005 OBA/CLE Formbook on CD, OBA Con- D.C.: Bureau of National Affairs 2011) —This tinuing Legal Education Department (Oklaho- reporter with state family law decisions, news ma City: OBA 2005) — This collection of Okla- and analysis is available as a weekly updated homa specific forms includes adoption forms, loose-leaf publication or as a subscription- Native American adoption forms and family based online source. The online version is law forms. The complete index of forms is updated daily. available on the OBA website.10 • Barbara Ann Atwood, Children, Tribes, and • Archived CLE — There are too many infor- States: Adoption and Custody Conflicts Over mative CLE programs to list, but often an American Indian Children (Durham, NC: Caroli- archived CLE is available for purchase. When na Academic Press 2010) — Written by the you pay for an archived CLE course, you are Mary Ann Richey Professor of Law at the Uni- able to watch the program and download the versity of Arizona, this text provides an in- program materials. This is an excellent way to depth examination of the Indian Child Welfare learn about a new topic directly from a practi- Act and the relationship between tribes and tioner. Archived CLE may be purchased states in placement cases. through the OBA. If you do not want to watch the videos you may elect to purchase only the • Jean Koh Peters, Representing Children in print materials for a reduced cost. Child Protective Proceedings: Ethical and Practical Dimensions, 3rd International Ed. (Newark, NJ:

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1839 Matthew Bender & Co. 2007) — This book cov- • Google Scholar13 — Google Scholar is a free ers both domestic and international law and tool that allows users to search for citations to examines policy and ethical factors that should scholarly publications. It now includes law be considered by lawyers representing chil- reviews and court decisions. After finding cita- dren. The book includes sample ethical prob- tions in Google Scholar, you can retrieve them lems and solutions. from subscription databases or visit your local • B.J. Jones, Mark Tilden and Kelly Gaines- law library. Stoner, The Indian Child Welfare Act Handbook: A • Oklahoma Family Law Journal — The May Legal Guide to the Custody and Adoption of Native 2010 and June 2010 editions of this publication American Children with CD-ROM, 2nd ed. (Chi- are available online.14 Older editions may be cago: ABA Section of Family Law 2009) — available in your local law library. Updating the 1995 edition, this work offers a comprehensive overview and discussion of the • Oklahoma Bar Journal Forms: Family Law15 federal Indian Child Welfare Act. This well- — Currently this list includes passport alert researched handbook includes extensive cita- forms and writ of habeas corpus forms. The tions, a table of cases, addresses for the federally forms are available in Microsoft Word, Word recognized tribes and appendices with forms, Perfect and HTML. checklist and other practitioner tools. • OKLAW.org16 — OKLAW.org is sponsored • Robert M. Galatzer-Levy, Louis Kraus and by Legal Aid Services of Oklahoma, the Legal Jeanne Galatzer-Levy, The Scientific Basis of Services Corporation and ProBono.net. The Child Custody Decisions 2nd.ed. (Hoboken, NJ: section on family law includes a compilation of John Wiley & Sons Inc. 2009) —Determining important DHS links, tribal court links and the “best interest of the child” is a complicated relevant forms. This is a great resource to book- undertaking. This collection of empirical and mark. Rather than surfing the web for these psychology-based studies from the legal and resources or spending time trying to locate mental health communities analyzing methods items on the DHS or a county court’s website, of determining the best interest of the child OKLAW.org aggregates those links together in offers valuable insight to the process. Topics one location. include the impact of divorce on children, psy- chological tests for custody evaluations, children • Tribal Court Clearinghouse: Indian Child 17 and high-conflict divorces, custody evaluation Welfare Act Information — The Tribal Court when parents have psychiatric disorders, joint Clearinghouse brings together many primary custody and improving and evaluating a child’s and secondary web-based resources related to attachment to their caregivers. tribal law. The section on the Indian Child Wel- fare Act includes links to important resources • Margaret S. Price, Special Needs Children and and organizations such as the National Indian Divorce: A Practical Guideline to Evaluating and Child Welfare Association and the Native Handling Cases (Chicago: ABA Section of Family American Rights Fund’s Practical Guide to the Law 2009) — Divorcing spouses with children Indian Child Welfare Act. with special and/or medical needs will have additional obstacles when preparing custody 1. Pub. L. No. 95-608, 92 Stat. 3069; 25 USC §§1901-1963. (Supp. agreements and child support determinations. 2009). 2. See Okla Stat. Tit. 10 §§7700-101 et. seq. This book offers guidance, forms, case analysis 3. Unif. Parentage Act (revised 2002), 9B U.L.A. 356-505 (Supp. and practice tips. 2010). 4. Unif. Child Custody And Enforcement Act 1997, 9 IA U.L.A. ADDITIONAL RESOURCES 649-706 (Supp. 2010). 5. Pub. L. No. 96–611, §§6 to 10, 94 Stat. 3568; 28 U.S.C. §1738A • ABA Center on Children and the Law11 — (Supp. 2009); 42 U.S.C. §663 (Supp 2009). 6. Unif. Child Custody And Enforcement Act, Prefatory Note 1, The Center on Children and the Law is an ABA 1997 available at www.law.upenn.edu/bll/archives/ulc/uccjea/fina- community for attorneys representing and l1997act.pdf (last visited May 9, 2011); 9 IA U.L.A. Prefatory Note 650 advocating for children. (Supp. 2010). 7. Unif. Interstate Family Support Act 1992, 1996 & 2001, 9 • Child Law Practice12 — Published by the U.L.A. 159-802 (Supp. 2010). 8. Uniform Law Commission, The National Conference Of ABA, this monthly publication for lawyers and Commissioners On Uniform State Laws, www.nccusl.org (last vis- judges provides policy updates, case law ited May 9, 2011). 9. The Indian Child Welfare Act, Oklahoma Indian Legal Ser- updates and discussions of ethical issues. A vices, www.oilsonline.org/The_Indian_Child_Welfare_Act.html (last subscription is required for this publication. visited May 9, 2011).

1840 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 10. OBA/CLE 2005 Form Book: Index of Forms, Oklahoma Bar Asso- ciation, www.okbar.org/cle/formbookcontents.htm (last visited May 9, 2011). About The Author 11. Center on Children and the Law, American Bar Association, www.americanbar.org/groups/child_law.html. Jennifer Stevenson Prilliman

12. Child Law Practice Online, American Bar Association, http://apps.americanbar.org/child/clp/ (last visited May 10, 2011). is the current reference librarian 13. Google Scholar, http://scholar.google.com/ (last visited for public, clinical and student May 10, 2011). 14. Family Law Journal, Oklahoma Bar Association, www.okbar. services at the OCU School of org/family/journal/(last visited May 10, 2011). Law, where she also serves as 15. Bar Journal Forms: Family Law, Oklahoma Bar Association, http://my.okbar.org/family.htm (last visited May 11, 2011) adjunct faculty. She earned her 16. OKLAW.org, www.oklaw.org/OK/index.cfm. J.D. from the OU College of Law 17. Tribal Law And Policy Institute, Indian Child Welfare Act Information, Tribal Court Clearinghouse, www.tribal-institute. in 2005 and her masters in infor- org/lists/icwa.htm(last visited May 9, 2011). mation and library studies from OU in 2010. She is a member of the OBA Law Day and Bar Technology committees.

Clerk of the Appellate Courts Relocates to On Monday, July 11, 2011, the Court New Oklahoma Judicial Center of Criminal Appeals moved to the new Oklahoma Judicial Center. The new address will be: The Clerk of the Appellate Courts moved its office to the Court of Criminal Appeals new Oklahoma Judicial Center Oklahoma Judicial Center on Tuesday, July 5. After July 5, 2100 N. Lincoln Blvd., 3rd Floor 2011, all appellate filings shall be Oklahoma City, Oklahoma, made at the following address: 73105-4907. All the telephone numbers for the Court Clerk of the Appellate Courts of Criminal Appeals have changed effective July 11, 2011. The new main line number will Oklahoma Judicial Center be 405-556-9600. For a complete list of 2100 N. Lincoln Blvd., Suite 4 telephone and room numbers for the Oklahoma City, OK Judges, Staff Attorneys and Employees 73105-4907 of the Court of Criminal Appeals, please Also note, the new phone number go to www.okcca.net/online and click the “contact” tab. will be 556-9400

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1841 FROM THE PRESIDENT continued from page 1772 life hero portrayed in the movie we will have another new I want to take this opportu- ”Black Hawk Down,” SSgt. Matt event, the President’s Red nity to thank our dedicated Eversmann. And this year being White & Blue Reception, with staff at the bar center for their the 10th anniversary of the ter- more free food and libations hard work. It is easy to do rorist attack in NYC, Andrew prior to the performance of things the same year after year. Card, former chief of staff to The Capitol Steps, a Washing- OBA staff members have George W. Bush, will present his ton, D.C.-based political satire rolled up their sleeves and eyewitness account of 9/11 at musical group. have been the workhorses for the annual luncheon. this Annual Meeting transfor- And then, to top off the mation. And to liven it up in the eve- whole event, we have secured nings, we have the President’s a limited number of tickets to Lots more is being planned, Boots and Bandanas Recep- the Reba McEntire concert at but I hope this sneak preview tion on Wednesday followed the BOK Center on Friday eve- makes you mark the date on by the Red Dirt Rangers Band. ning. These tickets are only your calendar. Registration The YLD Casino night will available for purchase by will start soon. Come join us move to Wednesday with a Annual Meeting attendees. and reinvigorate your pride in western theme. On Thursday, your profession.

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF stephen f. shanbour, SCBD #5733 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Stephen F. Shanbour should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Okla- homa City, Oklahoma, at 9:30 a.m. on Wednesday, August 24, 2011. Any person wishing to appear should contact Gina Hendryx, Gen- eral Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007, no less than five (5) days prior to the hearing. PROFESSIONAL RESPONSIBILITY TRIBUNAL

1842 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 BAR NEWS Still At Work Edmondson Heads Commission to Improve State’s Judicial System By M. Scott Carter

Former Attorney General Nationwide, more than 258 “The commission is looking Drew Edmondson is still individuals have been cleared at areas where we can seeking justice. of their crimes through DNA improve,” he said. “I think testing; of that figure 17 had everyone will tell you they Out of office, but armed been sentenced to death. want the right person to go with the backing of the to jail.” Oklahoma Bar Association, Edmondson said the review Edmondson has set out to was needed because technolo- To do that, Edmondson said, see if justice in Oklahoma gy has rapidly changed the the process must be improved. can be improved. face of forensic investigations. “One of the bigger problems Tapped as chairman of the “We’re not living in the is false eyewitness identifica- Oklahoma Bar Association’s same world we were 20 years tion,” he said. “The witness Justice Commission, Edmond- ago,” he said. will swear that a certain per- son and the 16-member com- son is guilty and DNA tests A 16-year veteran of the mission are spending the will prove otherwise.” attorney general’s office, next two years reviewing Edmondson was a leading Oklahoma County Public cases where deoxyribonucleic proponent to streamline the Defender Bob Ravitz said sev- acid, or DNA, tests have been state’s death penalty process. eral processes in the state’s used to overturn the convic- And while his critics complain criminal justice system need tions of several Oklahoma that he made executions faster review. Ravitz, a member of inmates previously convicted in Oklahoma, other attorneys, the commission, said he of murder. including OBA President Deb- hoped it would push for Edmondson said the orah Reheard, said Edmond- greater accuracy and the commission’s goal wasn’t son was named chairman use of neutral, science-based to overturn more sentences, of the Justice Commission testing. but instead to identify forensic because of his reputation as a “Scientific evidence should methods, trial procedures, fair and honest public servant. be a neutral process,” he said. judicial processes and attorney “Drew Edmondson has ded- “I’m a big believer in an inde- techniques that increase the icated his professional career pendent forensic lab. I think in likelihood that an innocent to prosecution, first as a dis- the long term that makes bet- person would be wrongly trict attorney in Muskogee, ter sense. The purpose is to convicted. and later as the state’s attor- identify concerns in criminal “We’re not looking to retry ney general,” Reheard said. justice that could be lessened.” the case,” he said. “We’re “His commitment to fairness Ravitz, who said he’s locked looking at how to improve and truth for all Oklahomans horns with Edmondson on the process.” is unquestioned.” more than one occasion, said State records show that 10 Edmondson said his goal he hoped the commission individuals have been exoner- was to ensure the right person would develop a recommen- ated in Oklahoma through was convicted of the crime. dation that could be used by post-conviction DNA testing. the law enforcement agencies,

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1843 the courts and even the Legis- lature to the make the criminal justice system better. “Drew Edmondson and I have fought a lot of battles,” Ravitz said. “But I’m con- vinced that Drew wants to get the right guy. I’m con- Oklahoma Justice Commission members and visitors convene at vinced that officials like the commission’s most recent meeting. (Left to Right) Jennifer Miller, (Oklahoma City Police Chief) Dennis Smith, Co-Chair Retired Judge Reta Strubhar, Pamela Bill Citty want to get the Hammers, Jackie Steyn, Danny Honeycutt, John Claro (front), right guy. Anything that Charles Curtis (back), Chair Drew Edmondson, Dwight Adams, would help get the right Chad Farmer (back), Tim Dorsey (front), Scott Walton, Christy guy, I support. I think we’ll Sheppard, David Prater, Bob Ravitz and Bill Citty come up with some positive Oklahoma Justice Commission Members recommendations.” Note: The OBA resolution creating the commission allows for as many Edmondson agreed. members as the chair deems necessary. Currently 30 members make up “The commission is a very the commission. diverse group,” he said. “We’re going through these William A. “Drew” Edmondson, Lawrence Hellman, OCU cases and we’re looking at chairperson School of Law how they were handled, from Retired Judge Reta Strubhar, Rob Hudson, first assistant the arrest to the sentencing. co-chairperson, Oklahoma attorney general And I think having such a Court of Criminal Appeals Sen. Constance Johnson, diverse group will make those Dwight Adams, recommendations stronger.” forensic specialist Mack Martin, defense attorney In addition to former — Judge Thomas Alford, trial court and current — prosecutors, judge, Muskogee County David Prater, Oklahoma County district attorney Edmondson said the commis- Carrie Bullard, legal secretary sion includes appellate court Bob Ravitz, Oklahoma County judges, legal scholars, members Cathy Christensen, public defender OBA president-elect of the Legislature, representa- Judge Clancy Smith, Court of tives from Attorney General Bill Citty, chief of police, Criminal Appeals Oklahoma City Police Dept. ’s office, members Dennis Smith, District 2 district of the general public and sever- John Claro, attorney, al law enforcement officials. legal scholar attorney (Beckham, Custer, Ellis, Roger Mills and Washita Because the group includes J. William Conger, counties) OCU School of Law prosecutors and law enforce- Joshua Snavely, staff member, ment officials, Edmondson Rep. , Oklahoma OCU Innocence Project said the commission’s final House of Representatives Jackie Steyn, victims’ advocate recommendations will be Tim Dorsey, police captain, stronger and may be better Edmond Police Dept. Scott Walton, Rogers County received by policymakers. Steve Emmons, interim director, sheriff CLEET John Whetsel, Oklahoma “I think if this was just a County sheriff bunch of legal scholars it would Chad Farmer, police captain, be harder to see our recommen- Muskogee Police Dept. Vonda Wilkins, defense dations made into policy,” he Stan Florence, director, OSBI attorney said. “But because we have Judge Tom Gillert, trial court Sue Wycoff, defense attorney representatives from those judge, Tulsa County John Yoeckel, member of agencies on the front lines, I Andrea Hamor Edmondson, the public think our recommendations victims’ advocate will get a better reception.”

1844 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 The buy-in from law talented group, Edmondson M. Scott Carter is the capitol enforcement, Ravitz said, was said he expected the commis- bureau reporter for The Journal vital. sion’s work to be difficult. Record. This article originally appeared in the June 29, 2011, “For this group’s recommen- “I know there will be issues edition of that newspaper. dations to be accepted, they and some things will be diffi- Reprinted with permission. need to come from law cult,” he said. “We’ll spend enforcement types like this year looking at cases and Editor’s note: The OBA resolu- Edmondson, other DAs and next year developing recom- tion authorizing the creation of police and sheriff. They have mendations. That won’t be the Oklahoma Justice Commis- to buy into this to make it easy, but I believe it needs to sion enables the chairperson to good public policy.” be done. I don’t think you appoint as many members as he should ever stop trying to find deems necessary. Still, even with the backing a better way.” of the state bar and a diverse,

Volume 78 u No. 35 u Dec. 22, 2007

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Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1845 PHOTO HIGHLIGHTS Sovereignty Symposium 2011 Oklahoma City, June 1-2, 2011

Gov. Bill Anoatubby of the Chickasaw Nation and Patrick Redbird of the Kiowa Black Leggings

Justice Doug Combs, Judge Lee West, 2011 Honored One William J. Holloway Jr., Justice and Justice Rudolph Hargrave

Artist D.G. Smalling presents his artwork to Judge Holloway.

Mr. Gary Pitchlynn and Mr. Jess Green Oklahoma Artist Jeri Redcorn

Justice Joe Watt and Justice

1846 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Keynote speaker the Baroness Emma Nicholson, House of Lords; Oklahoma City University President Robert Henry and Mr. Michael Richie, clerk of the Oklahoma Supreme Court, Chief Justice Steven Taylor Justice John Reif and Judge Phil Lujan

Gen. Rita Aragon

Jonna Kauger Kirschner, deputy director and general counsel of the Oklahoma Department of Commerce

Callen Clarke, Baroness Nicholson and Kyle Dillingham at the reception

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1847 BAR NEWS

2012 OBA Board of Governors Vacancies Nominating Petition: 5 p.m. Friday, Sept. 2, 2011 OFFICERS Summary of Nominations Rules President-Elect Not less than 60 days prior to the Annual Meeting, Current: Cathy M. Christensen, Oklahoma City 25 or more voting members of the OBA within the Mrs. Christensen automatically becomes Supreme Court Judicial District from which the OBA president Jan. 1, 2012 member of the Board of Governors is to be elected (One-year term: 2012) that year, shall file with the Executive Director, a Nominee: James T. Stuart, Shawnee signed petition (which may be in parts) nominat- ing a candidate for the office of member of the Vice President Board of Governors for and from such Judicial Dis- Current: Reta M. Strubhar, Piedmont trict, or one or more County Bar Associations (One-year term: 2012) within the Judicial District may file a nominating Nominee: Peggy Stockwell, Norman resolution nominating such a candidate. BOARD OF GOVERNORS Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA Supreme Court Judicial District One from any or all Judicial Districts shall file with the Current: Charles W. Chesnut, Miami Executive Director, a signed petition nominating a Craig, Grant, Kay, Nowata, Osage, Ottawa, candidate to the office of Member-At-Large on Pawnee, Rogers and Washington counties the Board of Governors, or three or more County (Three-year term: 2012-2014) Bars may file appropriate resolutions nominating a Nominee: Linda S. Thomas, Bartlesville candidate for this office. Supreme Court Judicial District Six Not less than 60 days before the opening of the Current: Martha Rupp Carter, Tulsa Annual Meeting, 50 or more voting members of Tulsa County the Association may file with the Executive (Three-year term: 2012-2014) Director a signed petition nominating a candidate Nominee: Kimberly K. Hays, Tulsa for the office of President-Elect or Vice President Supreme Court Judicial District Seven or three or more County Bar Associations may file Current: Lou Ann Moudy, Henryetta appropriate resolutions nominating a candidate Adair, Cherokee, Creek, Delaware, Mayes, for the office. Muskogee, Okmulgee and Wagoner counties If no one has filed for one of the vacancies, (Three-year term: 2011-2014) nominations to any of the above offices shall be Nominee: Vacant received from the House of Delegates on a peti- Member-At-Large tion signed by not less than 30 delegates certified Current: Steven Dobbs, Oklahoma City to and in attendance at the session at which the (Three-year term: 2011-2014) election is held. Nominee: Nancy Parrott, Oklahoma City See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure. Vacant positions will be filled at the OBA Annual Meeting Nov. 2-4. Terms of the present OBA offi- cers and governors listed will terminate Dec. 31, 2011. Nomination and resolution forms can be found at www.okbar.org.

1848 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 BAR NEWS OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws) OFFICERS BOARD OF GOVERNORS VICE PRESIDENT SUPREME COURT JUDICIAL DISTRICT NO. 1 Peggy Stockwell, Norman Nominating Petitions have been filed nominating Linda S. Thomas, Bartlesville Peggy Stockwell for election of Vice President of Nominating Petitions have been filed nominating the Oklahoma Bar Association Board of Governors Linda S. Thomas for election of Supreme Court for a one-year term beginning January 1, 2012. Judicial District No. 1 of the Oklahoma Bar Asso- A total of 320 signatures appear on the petitions. ciation Board of Governors for a three-year term beginning January 1, 2012. A total of 31 signatures appear on the petitions. A Nominating Resolution has been received from the following county: Washington

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1849 LAW PRACTICE TIPS

A Long, Hot Summer and Law Office Technology By Jim Calloway, Director, OBA Management Assistance Program

It has been a long hot with this to get it right. This But a tip I never thought summer in Oklahoma. The past July if one had let the of was to also have a pro- Oklahoma Bar Journal summer office temperature go up to 90 grammable timer for the publishing hiatus is over and overnight and started the cool- water heater. That may not many things of interest in ing down process 45 minutes save a lot of money, but even technology transpired over before the office opened, one small amounts help. Many the summer. would have never recovered lawyers who own their own all day. building probably considered As I was trying to resist the adding insulation or having temptation to write about mis- an energy audit when some erable heat, an item arrived in utility bills were received my inbox taking me back to this summer. Why put that the colder days of December. off any longer? The ABA’s GPSolo magazine won a 2011 APEX Award for I’d also never thought of Publication Excellence in the using a surge suppressor category of Green Magazines power strip as an on/off & Journals for its December switch. You can plug small issue, themed “The Greening electronic devices into it, like of Your Law Practice.” It calculators, electric staplers, explored how the latest tech- etc. Then the flick of a single nology and law practice strate- switch on the strip turns them gies can lessen a law firm’s off at the end of the day and environmental impact and on at the start of the next day. save it money. I’ll leave the Check out the entire issue of political debate over global the award-winning December climate change to other writers 2010 GPSolo magazine for in other venues, but the entire more tips, as well as articles contents of the award-winning ranging from paperless and publication are online at virtual offices to buying refur- www.tinyurl.com/3od36z2. bished office equipment. It does include some nice …have you For those of you who have tips. never gotten used to the curly For example, have you upgraded your CFL light bulbs, it now upgraded your office thermo- appears there is a better bulb stat to a state-of-the-art pro- office thermostat for many uses on the way. GE grammable one? One article just announced a complete in the magazine suggests 60 to a state-of-the- new line of LED light bulbs. degrees for the heater, 90 art programmable They last much longer and degrees for the air conditioner. most do not attract bugs My life experience suggests one? when used outdoors. The that you have to experiment bulbs are projected to deliver

1850 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 light for more than two webinar titled “60 Apps in 60 would be wise to jump ahead decades based on three Minutes.” He then posted the of the curve and begin testing hours of use per day. Look for list of apps on his IPAD 4 now, rather than wait to see them to be common on store LAWYERS blog. You can how things pan out: Read shelves in about 18 months. find his list of apps here: more at or www.tinyurl.com/ www.tinyurl.com/3rqjedv. 3mtaka7. There is no doubt the trend You should definitely is to use less paper in many Not all of the recent technol- check out his list if you ways. We’re seeing more and ogy news is positive, howev- own an iPad. more people reading e-books er. Netflix raised prices and these days. Kindles are pretty There are a couple of blogs angered many users. AT&T common now. Kindles have about smart phones that I confirmed it will start throt- gotten very inexpensive, with want to recommend to you. tling (slowing down) those one model priced at $114 at who it determines are using “iPhoneJD” is from Jeff www.amazon.com/kindle. too much data under its Richardson and is a great unlimited plans for iPhone I still prefer the iPad and source of information for and iPad. I think AT&T have blogged a bit recently lawyers about iPhones (and should check out the defini- about lawyers and iPads at iPads, as well). It is located tion of unlimited. See my blog www.jimcalloway. at www.iphonejd.com. www.tinyurl.com/3qdamcf. typepad.com/lawpracticetips. Jeffrey Taylor is an attorney You can read e-books on the This spring I was asked to from Oklahoma City and he iPad and do much more. In participate in the traditional publishes “The Droid Lawyer” June, TrialPad 2.0 for the iPad closing of ABA TECHSHOW, blog at www.thedroidlawyer. was released. While $89.99 the 60 Sites in 60 Minutes com. Jeff knows his Droid sounds like a stiff price for an panel. We had a lot of fun. devices and has a well- iPad app, read my review One of the other panelists written blog. before you make up your was my Digital Edge podcast mind at www.tinyurl.com/ Google+ launched to a lot of teammate Sharon Nelson. We 3ebwbtt. This app can be very fanfare. Google plans on tak- decided to reprise our sites useful in a courtroom. ing on Facebook in the social for our Digital Edge podcast. media arena, but there’s more You can listen to the podcast Tom Mighell was a guest to Google+ than that. Accord- and/or see the links for speaker at our 2011 OBA Solo ing to legal technology expert 24 great websites at and Small Firm Conference. Steve Mathews, “Google+, the www.tinyurl.com/3vsxtcu. He recently published the search engine’s recent entry in book “iPad for Lawyers in I’ll see you next month the social networking sphere, One Hour.” A few weeks after when hopefully we will all is set to make a big impact on our conference he gave a be a bit cooler. the legal-web ecosystem. You

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1851 ETHICS & PROFESSIONAL RESPONSIBILITY Ethics ‘Desiderata’ By Travis Pickens

In 1927, American writer Max Ehrmann wrote a prose poem titled “Desiderata.” It was thought that Ehrmann had written it for his children, and the poem was extremely popular in the ‘60s and ‘70s, especially among young adults. “Desiderata” is Latin for “desired things.” The following is an adaptation of the poem. Go ethically amid the noise and haste, and remember what peace there may be in an office practice. As far as possible, without surrender, be on good terms with opposing counsel and your client. Make your argument quietly and clearly; and listen to others, even to the dull and ignorant; they too have practiced law, and are now retired. Tolerate, but do not emulate, rude and vexatious lawyers; they depress Lady Justice, but sometimes cannot be avoided. If you compare yourself with others, you may become vain and bitter, for always there will be lawyers more or less super than yourself. Enjoy your successes and find lessons in your defeats. Keep interested in the law, however routine your practice may be; it is a real possession in a down economy. Exercise caution in negotiations, for last-minute bargaining is full of trickery. But let this not blind you to what virtue there is; many lawyers strive for high ideals, and everywhere the law is full of professionalism. Be yourself. Especially do not feign sincerity. Neither be cynical about civility, for in the face of all anger and disenchantment, it is as calming as a stream. Take kindly the counsel of the years, gracefully surrendering the clients of youth. Nurture your investments to shield you in sudden misfortune, but do not distress yourself with imagined missed deadlines. Many fears are born of fatigue and insecurity. Beyond enough billable hours to satisfy your partners, be gentle with yourself. You are a child of the legal world, no less than the jurists and the justices; you have a license to be here. And whether or not it is clear to you, no doubt your career is unfolding as it should. Therefore be at peace with the law, whatever your practice may be. Have an ethics question? And whatever your losses and victories, It’s a member benefit, and all in the stressful confusion of this demanding life, inquiries are confidential. keep peace in your soul. Contact Mr. Pickens at With all its dangers, duties and fights, [email protected] or it is still a beautiful career. (405) 416-7055; (800) 522-8065. Realize your good fortune. Resolve to be happy.

1852 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 BOARD OF GOVERNORS ACTIONS

Meeting Summaries The Oklahoma Bar Association Board of Governors met at the Five Civilized Tribes Museum in Muskogee on Friday, April 22, 2011.

Museum Executive Director at the Supreme Court School meetings, two bar employees Mary Robinson gave the brief and Teacher of the Year award staff meetings, Canadian history of the building and the presentation. County Bar Association surrounding area. The board meeting, Boot Camp for thanked Governor Tucker for President Reheard said that Attorneys and legislative making the arrangements for while in Washington she and reception. She also presented President-Elect Christensen the Thursday evening event awards at the Close-Up visited with several Oklahoma with the Muskogee County program and taped “The legislators, who were excited Bar Association and the Verdict” TV show. She said about the OBA’s heroes pro- morning meeting. the LRE Committee is moving gram. They expressed interest forward. REPORT OF THE in attending the upcoming PRESIDENT veteran clinics. She announced REPORT OF THE PRESIDENT-ELECT President Reheard reported a new coordinator has been hired for the Oklahoma Law- she attended the President’s President-Elect Christensen yers for America’s Heroes pro- Summit at Post Oak Lodge, reported she attended the gram. Susan Carey is working Oklahoma Justice Commission President’s Summit and 25 hours a week for now to inaugural meeting, Southern January board meeting, get case assignments caught Conference of Bar Presidents Oklahoma Justice Commission up. President Reheard shared inaugural meeting, 2011 planning meeting, Annual a recent success story handled Meeting planning meetings, Annual Meeting planning by Robert Manchester. She meeting, SCBP planning Garvin County Bar Associa- said we have more than 200 tion zone meeting, ABA Day meeting, Oklahoma High lawyer volunteers and nearly School Mock Trial Program at the Capitol in Washington, 300 requests for help. Also, D.C., OBA Day at the Capitol finals competition, women she was interviewed recently and the rule of law history and legislative reception, new about the program for a story lawyer admission ceremony, celebration, Bar Leadership in the ABA’s Bar Leader maga- Institute, Strategic Planning ceremonial swearing-in and zine. President Reheard reception for Justice Noma Committee meeting, “Night announced that Justice Yvonne for the Innocent” OCU Gurich, retirement reception Kauger has been named the for Court of Civil Appeals Innocence Clinic event, “A 2011 Red Earth Ambassador of Conversation with Betty Ann Judge Doug Gabbard, OETA the Year, an honor presented Festival, women and the rule Waters” at OCU law school, to individuals who have made ABA Day at the Capitol, OBA of law history celebration, a significant contribution in Day at the Capitol and Tulsa County Bar Foundation presenting a more positive legislative reception, roast of Past President Small- image of Native Americans. ceremonial swearing in and wood and “Night for the reception for Justice Gurich Innocent,” which was an OCU REPORT OF THE VICE PRESIDENT and swearing in and reception Innocence Clinic fund-raising for new lawyers. event. She also filmed a Law Vice President Strubhar Day TV show segment and a reported she attended two REPORT OF THE segment of “The Verdict,” Oklahoma Justice Commission EXECUTIVE DIRECTOR moderated Oklahoma Law- meetings, two LRE Committee Executive Director Williams yers for America’s Heroes special meetings, two Annual reported that he attended the CLE and made a presentation Meeting coordination President’s Summit, Bar

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1853 Association Technology County Bar Association board Governor Pappas reported Committee meeting, of directors meeting. She she attended the board Membership Survey Task judged TCBA Law Day summit, Payne County Bar Force meeting, OBA staff student entries and Association meeting and Bar directors meeting, Annual participated in TCBA task Association Technology Meeting and SCBP planning force meetings. Governor Committee meeting. She also meetings, Senate and Chesnut reported he attended began gathering contact House Judiciary Committee the President’s Summit in information for attorneys in meetings, Bench and Bar February, Day at the Capitol her district and participated in Committee meeting, meeting and legislative reception, Solo OBA Day at the Capitol and with the architect on future and Small Firm Planning the legislative reception that building remodeling, High Committee meeting and the followed. Governor Poarch School Mock Trial finals, Bar February and March monthly reported he attended the Leadership Institute, Supreme Ottawa County Bar swearing-in ceremony of Court Teacher and School of Association meetings. Justice Gurich, swearing-in the Year award ceremony, Governor DeMoss reported ceremony of new lawyers and OBA Day at the Capitol and she attended the February worked with the Legal Intern legislative reception, Garvin board summit, January board Committee on revising rules County Bar Association meeting, Tulsa County Bar to allow academic interns. reception and dinner, monthly Foundation board meeting, Governor Shields reported staff celebrations, Justice roast of Allen Smallwood, she attended the OBA Day at Gurich swearing-in ceremony, OBA Law Schools Committee the Capitol and legislative new admittee swearing-in visits at OCU School of Law reception, February and ceremony and the board event and TU College of Law. She March Oklahoma County Bar in Muskogee. participated in TCBA task Association meetings and force meetings and in the swearing-in ceremony of REPORT OF THE PAST planning for the trial college Justice Gurich. She PRESIDENT at OBA Annual Meeting. participated in a Strategic Past President Smallwood Governor Devoll reported he Planning Committee meeting reported he has communi- attended the Garfield County and in a Lawyers Helping cated with board members on Bar Association meeting and Lawyers Assistance Program various appointments an d swearing-in ceremony of Committee planning lunch. Justice Gurich. He worked has maintained surveillance of REPORT OF THE on setting up the Board of legislative matters pending GENERAL COUNSEL relative to the legal profession Governors May meeting in and the bar association. He Enid and arranged for Justice General Counsel Hendryx also reported a recent event, in John Reif to speak at the said her department is gearing which he was roasted, raised county bar meeting. Governor up for a hectic schedule that $10,000 for Legal Aid Services Dobbs, who participated in will be averaging two of Oklahoma Inc. and the the meeting via telephone, hearings a week. She reported Community Food Bank of reported that he is still the Fournerat v. Murdock et al Eastern Oklahoma. recovering from back surgery. case was dismissed. General Governor Meyers reported he Counsel Hendryx also BOARD LIAISON REPORTS attended OBA Day at the reported she attended three Governor Pappas reported Capitol and the legislative meetings of the Ruth Bader the Bar Association reception, Legal Intern Ginsburg Inn of Court, UPL Technology Committee met Committee meeting and Task Force meeting, a and presented a thorough Comanche County Bar presentation at the Western report. An internal survey will Association meeting. District Federal Courthouse be conducted to access needs Governor Moudy reported honoring women in the law, of OBA departments. she attended the President’s reception for Oklahoma Summit and Lawyers for legislators, swearing in of BOARD MEMBER REPORTS America’s Heroes CLE and Justice Noma Gurich and Governor Carter reported presentation. She also kept up admission ceremony for she attended the President’s with legislation affecting the newly licensed attorneys. Summit and January board practice of law, including She also took pledges for the meeting and March Tulsa contacting legislators. OETA Festival, judged the

1854 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 finals of the ABA National LEGAL SERVICES the LRE Committee that led Client Counseling Competi- CORPORATION FUNDING her into increased tion, gave a CLE presentation participation on other OBA The board ratified the to the volunteers for Amer- committees. President electronic vote to approve ica’s Heroes and ethics pre- Reheard said there have been Oklahoma joining other states sentation to the professional challenges to the in urging Congress to fund responsibility class at Tulsa independence of the judiciary, LSC at last year’s level. University, legal assistant class and she has learned from at Tulsa University and to PROPOSED AMENDMENT other state bar associations OCU law school students. TO RULE 4.1 OF THE RULES that public education works OF THE SUPREME COURT to combat that problem. It A written status report of FOR LEGAL INTERNSHIP was noted Georgia has a the Professional Responsibility great model and could Commission and OBA Governor Poarch reported provide inspiration for a disciplinary matters for the Legal Intern Committee is new Oklahoma program. February and March 2011 recommending an amendment were submitted for the to Rule 4.1 of the Rules of the AWARDS COMMITTEE board’s review. Supreme Court for Legal RECOMMENDATIONS Internship. The board voted to RECONSIDERATION OF accept the committee’s Awards Committee AMENDMENT TO THE recommendation and to send Chairperson Renée Hildebrant RULES OF THE SUPREME it to the Supreme Court for its summarized the process COURT FOR LEGAL consideration. the committee uses to make INTERNSHIP its recommendations. She Governor Poarch reported MCLE COMMISSION said the awards named for minor errors were found in APPOINTMENT individuals were reviewed, the materials previously The board voted to and it was decided to retain submitted to the board and reappoint Theodore P. Gibson, the names and to commu- the committee made changes Tulsa, to the Mandatory nicate the history of indi- to address concerns of a clerk Continuing Legal Education viduals honored with an by proposing the addition of Commission. Health issues award named for them. Rule 2.1(A) regarding the forced him to miss several She reported the committee Academic Legal Intern meetings, which required the recommends giving the License. The board voted to position to be declared vacant. same awards as last year accept the Legal Intern He is better and able to attend with no changes and Committee recommendations future meetings. encouraged board members and to submit the revisions to to promote the submission the Supreme Court for its LAW-RELATED of nominations. She called consideration. EDUCATION REPORT attention to the committee President Reheard reported guidelines created years ago JUDICIAL NOMINATING that several long-time LRE to create consistency in award COMMISSION programs are experiencing recipient selection. The board APPOINTMENT low participation, which approved the committee’s The board ratified the merits review of current recommendation. electronic vote to appoint programs. A new task force LAW-RELATED Heather Burrage, Durant, to called the Special Committee EDUCATION STIPENDS the JNC. She replaces Dan on Public Education (SCOPE) Little, who resigned. is being formed, which President Reheard and Suzanne Heggy, Yukon, has President-Elect Christensen PROFESSIONAL agreed to chair. LRE shared details about stipends RESPONSIBILITY Committee members have paid to district coordinators TRIBUNAL APPOINTMENT been asked to serve on the for LRE programs. Funding The board ratified the task force. Education will be a for the stipends comes electronic vote to appoint main initiative for President- from federal grant money. Jeremy J. Beaver, McAlester, to Elect Christensen during her Questions were asked about the PRT to replace Judge year as president. President- the duties performed to merit Martha Rupp Carter, who Elect Christensen said it was a stipend. A list of individuals resigned. her initial involvement with who have received stipends

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1855 was reviewed. The board with the court and its coming the welcome baskets placed in voted to suspend stipend integrated network. the hotel rooms. payments unless payments are LEGISLATIVE UPDATE approved by the LRE Com- OBA CLE HAWAIIAN mittee chairperson and the Executive Director Williams CRUISE SCOPE chairperson. reviewed the status of several President Reheard CANCELLATION OF bills, including OBA bills, one announced plans for an OBA OKLAHOMA BAR CIRCLE which was pulled. President cruise Dec. 2-10, 2011. She Reheard said we learned a shared details. President Reheard described lesson this year that it would the member benefit, which has have helped for committee REPORT OF THE not been utilized. The contract chairs to attend legislative PRESIDENT was suppose to be cancelled, meetings so legislators could President Reheard reported but the OBA missed the can- have background on the she attended the April Board cellation period. Executive issues. of Governors meeting, OBA Director Williams reported RESOLUTION FOR HOST Bar Center Facilities Com- that each department was BAR ASSOCIATION mittee meeting, first meeting handling its own contracts, of the Special Committee on and now everything has been The board voted to issue a Public Education (SCOPE), centralized. He explained the resolution expressing appre- planning meetings for Solo oversight happened because ciation to the Muskogee and Small Firm Conference the contract had an automatic County Bar Association for and Annual Meeting, Pitts- renewal. General Counsel its hospitality. burg County Law Day ban- Hendryx negotiated a set- quet, McCurtain County Law tlement with the company. RESOLUTION FOR DEAN HELLMAN Day banquet, Oklahoma May 5 was set as the deadline County Law Day luncheon, for directors to submit a The board voted to issue a Insurance Law Section CLE complete list of all renewable resolution recognizing the presentation and a CLE reoccurring contracts. many years of service of OCU presentation at the 17th TECHNOLOGY REPORT School of Law Dean Lawrence Annual Pickens Institute in Hellman. A reception will be Ardmore. She was a speaker President Reheard reported held for him on May 5. at the Seminole County Law there have been technology SPECIAL TRIP Day luncheon, presented a challenges at the bar center. Board of Governors resolution Executive Director Williams President Reheard reported to retiring OCU Law School reported the maximum that she and President-Elect Dean Larry Hellman, capacity for email set by the Christensen will participate in presented 50-year pins to OBA’s license was exceeding the final send-off ceremony two Creek County lawyers at its limit. Employees were for the nearly 4,000 Oklahoma their county bar association instructed to archive email, armed services members meeting, met with President- which has helped. Limits on deploying to Afghanistan. Elect Christensen and the size of employee mail- They will fly to Camp Shelby Executive Director Williams boxes have been set. A in Mississippi. on technology issues and problem with messages sent *** traveled to Camp Shelby, to listserves occurred, and Miss. to experience the action taken has increased The Oklahoma Bar Association Board of Governors met at the training of the 45th Infantry as dependability. President part of “Operation BossLift” Reheard reported the Oakwood Country Club in Enid on Friday, May 13, 2011. sponsored by the Employers Technology Task Force has Support of the Guard and been asked to move forward APPRECIATION Reserves. with recommendations for EXPRESSED technology improvements. REPORT OF THE VICE Requests for Proposals (RFPs) Board members thanked PRESIDENT Glenn and Kim Devoll for for a technology audit have Vice President Strubhar making the arrangements for been sent out. It was sug- reported she attended the the board’s meeting and social gested the OBA might work Board of Governors April event in Enid in addition to meeting, Law Related

1856 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Education Committee Association event, Bar Center SCOPE Committee meeting, meeting, Oklahoma Justice Facilities Committee meeting, Seminole County Law Day Commission, at which she Law Related Education Task luncheon, Lincoln County accepted responsibilities to Force meeting, Bar Association Law Day picnic and Payne co-chair the commission. Technology Task Force County Law Day banquet, She also met with LRE meeting, Pittsburg County honors docket and Ask A Coordinator Jane McConnell. Law Day dinner, Seminole Lawyer call-in activities. County Law Day dinner, Governor Poarch reported he REPORT OF THE Oklahoma County Law Day attended the Muskogee PRESIDENT-ELECT luncheon, Comanche County County reception and dinner, President-Elect Christensen Law Day luncheon and April board meeting and the reported she attended the monthly staff celebration. Oklahoma County Law Day luncheon. Governor Rivas April board meeting, OBA Bar REPORT OF THE PAST reported he attended the Center Facilities Committee PRESIDENT meeting, appreciation Professionalism Committee reception for OCU Dean Larry Past President Smallwood meeting at the Oklahoma Bar Hellman, OCU Law Dean reported via email that he was Center as the board liaison. Search Committee meeting, “roasted” by the Tulsa County Governor Shields reported several Law Related Bar Association which raised she attended the April board Education task force planning more than $10,000 for Legal meeting, dinner with the meetings to discuss SCOPE, Aid Services of Oklahoma Inc. Muskogee County Bar first SCOPE meeting, and the Community Food Association and the Oklahoma Pittsburgh County Law Day Bank of Eastern Oklahoma. County Law Day luncheon. banquet, Seminole County He has also continued to REPORT OF THE GENERAL Law Day luncheon and monitor legislation, COUNSEL Oklahoma County Law particularly with respect Day luncheon. She met to the Judicial Nominating General Counsel Hendryx with President Reheard and Commission. reviewed an abbreviated Executive Director Williams BOARD MEMBER REPORTS report that included the status on technology issues, traveled of lawyers attending diversion for a site visit to Thackerville Governor Chesnut reported program classes, litigation on two occasions with he attended the Muskogee pending against the OBA and Educational Programs County reception and dinner, recent Supreme Court actions. Director Douglas and April board meeting and She reported she attended a Management Assistance worked on details regarding meeting of the Rules of Program Director Calloway the Solo and Small Firm Professional Conduct and to Camp Shelby, Miss. Conference. Governor Devoll Committee, Clients’ Security with “Operation BossLift.” reported he attended the Fund Committee, Professional REPORT OF THE Muskogee County Bar Asso- Responsibility Commission EXECUTIVE DIRECTOR ciation function, Board of and reception for Dean Governors meeting, Garfield Lawrence Hellman. She gave Executive Director Williams County Bar Association a CLE presentation at the reviewed the procedure for meeting and arranged for Opening Your Law Practice dealing with suspension and Justice Reif to speak to the seminar and at the Pickens strike lists of bar members Garfield County Bar County, I.T. seminar in who are not in compliance Association. Governor Ardmore. and the OBA’s process of Meyers reported via email notifying members on the that he attended the OKLAHOMA LAWYERS lists. The lists must be Comanche County Law Day FOR AMERICA’S HEROES submitted to the Supreme activities, Stephens County President Reheard reported Court before its regularly Law Day activities and the program to assist military scheduled conferences are presented OBA membership personnel and veterans is temporarily suspended in July. certificates. Governor Pappas going well. The coordinator is He reported that he attended reported she attended the out temporarily, and Executive the board meeting and April board meeting, Access Director Williams is helping Muskogee County Bar to Justice Committee meeting, out until she returns.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1857 SOCIAL MEDIA POLICY observed a continuing term will begin 7/1/11 and AND GENERAL PLAN FOR decrease in participation by end 6/30/13. OBA FACEBOOK county bar associations. Governor Devoll reported Communications Director BOARD OF EDITORS that although Garfield County Manning said that social APPOINTMENT did not participate in Ask A media, such as Facebook, Lawyer, they had lawyers in The board approved Twitter and Linkedin, are every school. President President Reheard’s appoint- communication tools and Reheard and President-Elect ment of Erin Means, Enid, require a plan to coordinate Christensen have ideas about from District 4 to replace efforts with other increasing participation. One Craig Hoehns, who is moving communication tools, such as idea is to create a midyear out of the district and has the Oklahoma Bar Journal and meeting that would provide resigned from the board. OBA website. She said the an opportunity to motivate proposed policy for board section and committee leaders APPOINTMENT OF consideration is a work and county bar presidents. A INTERIM GENERAL product of an OBA Florida program has at least PRACTICE-SOLO AND Technology Task Force one lawyer associated with a SMALL FIRM SECTION subcommittee. The policy school. It was suggested that CHAIRPERSON includes detailed procedures, perhaps coordination with and she reported that more President Reheard reported SCOPE will help. Counties time is needed to research and the section has not been active with few lawyers could be develop a plan for the OBA’s in the past two years. She said encouraged to join with official Facebook page. It was Jim Slayton, Oklahoma City, neighboring counties to create recommended that the has agreed to serve as interim tri-county participation, like Communications Committee chairperson and will hold a what is being done in and the Bar Association meeting at the Solo and Small southeastern Oklahoma. Technology Committee review Firm Conference. The board Executive Director Williams any proposed policy. General approved Jim Slayton as suggested getting judges Counsel Hendryx has not General Practice-Solo and involved, and ideas to involve reviewed the proposed policy. Small Firm Section judges were discussed. The board tabled action for a chairperson. future meeting. President RESOLUTION FOR HOST DISTRICT LISTSERVS Reheard asked for any budget BAR ASSOCIATION considerations, i.e. staffing to The board voted to issue a Questions were raised about be researched. It was noted resolution of appreciation to the progress of district list- adoption of a new policy the Garfield County Bar serves being created to allow might require amendment to Association for its hospitality board of governors repre- the Guide for Committees and in organizing the Thursday senting districts to com- Sections. evening social event and municate with bar members in hosting the board meeting. their districts. At-large district LAW DAY REPORT representatives will have other Law Day Committee Chair OKLAHOMA DOMESTIC duties. The OBA will send out Tina Izadi via Skype from the VIOLENCE FATALITY messages on behalf of the Oklahoma Bar Center REVIEW BOARD governors, and governors summarized the activities that The board approved were asked to send their mes- took place. Contest entries President Reheard’s sage to Executive Director totaled 1,544. She reported recommendation to send the Williams for distribution. that 296 lawyers from 28 names of Gail Stricklin, OKLAHOMA BAR CIRCLE counties participated in the Oklahoma City, Karen Pepper statewide Ask A Lawyer Mueller, Oklahoma City, and Communications Director project to give free legal Rebecca King Schneider, Manning, on behalf of advice to 2,001 people on Oklahoma City, to the Management Assistance April 28 in celebration of Law attorney general for considera- Program Director Calloway, Day. She said although the tion as nominees to serve on shared the plan for notifying public relations results were the review board. The new members about the demise of successful, the committee

1858 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 the online member benefit, Task Force report is coming Justice Kauger, Solo and Small which was not being utilized. soon, which will end its work Firm Conference and and turn over future action to Arkansas State Bar Annual LEGISLATIVE UPDATE the committee. One member meeting in Hot Springs. She Executive Director Williams survey RFP has been received. assisted in implementing disaster relief for tornado summarized the status of OBA BUILDING victims, gave welcoming bills. Legislation involving CONSTRUCTION the Judicial Nominating remarks at the Sovereignty Commission is no longer Executive Director Williams Symposium opening active. Next year Civil reported the carpet pattern ceremony, served as a Procedures Committee used in the east wing hallway “celebrity” judge at the members will be encouraged remodel is no longer available. Barrister Bowl charity event to attend legislative meetings An alternative pattern has for 12&12 and presented to be present to provide been selected and should 50- and 60-year pins at the background and insight work well. A lighter wall color Oklahoma County Bar regarding proposals. for the west wing remodel Association awards luncheon. than that used in the east JUDICIAL NOMINATING REPORT OF THE VICE wing was suggested. He said COMMISSION PRESIDENT the plan does not include It was noted Richard Fisher, remodeling the first floor west Vice President Strubhar Tulsa, and Dr. Don Murray, wing restrooms, but will be reported she attended the Edmond, are the new included in next year’s board meeting in Garfield laypersons appointed to the project. Work will start in June County, Canadian County Bar JNC. Elections for OBA and be completed by the end Association meeting and Law- positions will be held this of August. Related Education Committee meeting. She met with the year for two districts. ANNUAL MEETING LRE director on approval of LAW-RELATED President Reheard reported invoices and presented a 60- EDUCATION UPDATE on the keynote speakers year membership pin to President Reheard reported planned and shared that Harold M. Durall. the first meeting of SCOPE entertainment will be the Red REPORT OF THE was held, and President-Elect Dirt Rangers and The Capitol PRESIDENT-ELECT Christensen reported on Steps. Governor DeMoss has what took place. She said that agreed to chair a new event, a President-Elect Christensen over-18 publications will be trial college, and she described reported she attended the May rewritten as part of YLD the plan. Other events board meeting in Enid and the projects next year and stated planned are a technology reception hosted by the federal funding for the We the fair, art contest and sports Garfield County Bar People program was expected championships. Association, June OBF meeting, 2011 OBA Solo and to be discontinued. SCOPE *** Small Firm Conference, will reconvene in June with The Oklahoma Bar Association Military Assistance Task Force new programs to review. Board of Governors met at the work day, Red Earth Gala Downstream Resort in Quapaw TECHNOLOGY UPDATE honoring Justice Kauger, in conjunction with the OBA Arkansas Bar Association President Reheard reported Solo and Small Firm Conference meeting with President that her technology consultant on Friday, June 10, 2011. is talking to the OBA Reheard, a site visit to Durant technology manager. REPORT OF THE with Directors Douglas and Executive Director Williams PRESIDENT Calloway, a conference with reported one RFP has been OU President Boren to discuss President Reheard reported received so far with five or six the 2012 Annual Meeting, she attended the May board others expected. He said the Oklahoma County Bar Awards meeting in Enid, Military proposal was divided into luncheon, Sovereignty Assistance Task Force work sections, which would allow Symposium opening day, June OBF meeting, separate vendors to be ceremony and a meeting with Annual Meeting meeting with selected for different sections. Executive Director Williams, staff, Red Earth Gala honoring He also said a Technology Technology Committee

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1859 Chairman Gary Clark and meeting in Enid and worked status report of OBA CoreVault representative Jeff on the Solo and Small Firm disciplinary matters for May Cato. She also met with Conference. Governor 2011 was submitted for the Executive Director Williams DeMoss, unable to attend the board’s review. to discuss 2012 planning and meeting, reported via email UNAUTHORIZED events. that she attended the May PRACTICE OF LAW TASK board meeting in Enid, REPORT OF THE PAST FORCE REPORT Oklahoma County Bar PRESIDENT Association awards luncheon, Co-Chairpersons William Past President Smallwood Tri-County Law Day Grimm and Melissa reported he worked on several celebration and Tulsa County DeLacerda reviewed judicial openings as chairman Bar Association Law Day information presented in the of the Judicial Nominating luncheon. She also task force’s written report. The Commission and attended an participated in the TCBA report noted that two American College of Trial Lawyer in the Library event. investigations conducted by Lawyers seminar in Santa Governor Devoll reported he the Office of the General Fe, NM. attended the Garfield County Counsel (OGC) resulted in the Bar Association meeting and OBA obtaining permanent REPORT OF THE May board meeting. He injunctions against lay- EXECUTIVE DIRECTOR discussed helping military persons providing advice and Executive Director Williams members with area attorneys. counseling in judicial reported that he attended Governor Dobbs reported he foreclosure actions in Tulsa the social event hosted by attended the board meeting in County. The report the Garfield County Bar Enid. Governor Pappas recommends the OGC be Association, Civil Procedure reported she attended the expanded to include a full- Committee meeting, board meeting in Enid, Payne time attorney and investigator Oklahoma County Bar County Bar Association Law to handle UPL investigations Association annual lunch Day bowling event and and enforcement actions and and Solo and Small Firm accepted an OBA military to create a standing UPL Conference. He met with divorce case. Governor Committee. Governor Dobbs Technology Committee Chair Poarch reported he attended noted that committee Gary Clark, President-Elect the Oklahoma County Bar members would need Christensen and Jeff Cato of Association awards luncheon. immunity, which will require CoreVault, and also met with Governor Rivas reported he a rule change. attended the May meeting in President-Elect Christensen on CONTINUING LEGAL planning for 2012. In addition, Enid. Governor Shields reported she attended the May EDUCATION ANNUAL he conducted staff REPORT evaluations. board meeting in Enid, Oklahoma County Bar Educational Programs BOARD MEMBER REPORTS Association board meeting, Director Donita Douglas Governor Carter reported OCBA YLD meeting, Red reviewed information from she attended the eCourts Earth Gala honoring Justice the CLE Department’s 2010 Committee (unified case Kauger, June OBF meeting report. Highlights were: 1) a management system) Trial and Solo and Small Firm total of 88 live programs and Court Subcommittee meeting, Conference. 175 live webcasts were assisted in judging the Tulsa REPORT OF THE GENERAL offered, 2) revenue from County Bar Association Law COUNSEL online seminars/webcasts has Day art contest and steadily increased over the volunteered for Tulsa County General Counsel Hendryx past five years, 3) budget net Bar Foundation Community reviewed details of recent revenue was $184,732.17 and Outreach Committee – Day high profile discipline cases actual net revenue was Center for the Homeless that have now become public. $314,877, both increases over Project. Governor Chesnut Professional Responsibility 2009, 4) greatest participation reported he attended the Commission Chairperson continues to occur in reception and dinner hosted Melissa DeLacerda December, and 4) greatest by the Garfield County Bar complimented Hendryx on growth is in the number of Association, May board taking quick action. A written online registrants. Director

1860 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Douglas said the biggest CLE PROFESSIONAL bar members not in challenge is transitioning from RESPONSIBILITY compliance with paying OBA live programs to online TRIBUNAL dues or with MCLE programs. The department is APPOINTMENTS requirements were emailed to focusing on training people in board members yesterday. He The board approved how to access the online encouraged board members to reappointment of Jeremy programming. She reported contact people they know on Beaver, McAlester, and the CLE Department also the lists. The final list will be appointment of Kelli Masters, supports programs outside of emailed to board members Oklahoma City; Neal Stauffer, CLE including Leadership Wednesday and an email vote Tulsa; Susan Loving, Edmond; Academy, Women in Law will be requested authorizing and Don Smitherman, Okla- Conference and Solo and him to submit the applications homa City. All terms will Small Firm Conference. She to the Supreme Court. expire June 30, 2014. noted that Leadership He also reviewed the Academy participants are BUDGET COMMITTEE process and requirements for being recruited now and APPOINTMENTS associate membership status. asked board members to The board approved the encourage young lawyers to LUNCHEON WITH following Budget Committee submit applications. CHINESE LAW STUDENTS appointments: AND PROFESSORS PROPOSED AMENDMENT Board Members: Glenn TO THE RULES CREATING President Reheard reported Devoll, Enid; Steven Dobbs, AND CONTROLLING THE the OBA will host a delegation Oklahoma City; David Poarch, OKLAHOMA BAR of Chinese law students and Norman; Deborah Reheard, ASSOCIATION professors attending an Eufaula; and Reta Strubhar, institute at Oklahoma City President Reheard pointed Piedmont University School of Law on out the rules do not include July 22, 2011. board approval of the annual House of Delegates Members: Angela Bahm, OBA budget. She proposed EXECUTIVE SESSION adding to Article VII, Section Oklahoma City; Gabe Bass, 1 the sentence, “The budget Oklahoma City; Ken The board voted to go into shall be approved by the Delashaw, Marietta; Bill executive session, met in Board of Governors prior to Grimm, Tulsa; Peggy session and voted to come being submitted to the Stockwell, Norman; and James out of executive session. T. Stuart, Shawnee Supreme Court.” This action NEXT MEETING will enact what has been done Additional Attorney traditionally. The board Member: Jennifer H. The Board of Governors met approved the amendment and Kirkpatrick, Oklahoma City. at the Oklahoma Bar Center in voted to submit the Oklahoma City on Friday, July amendment to the Supreme The first meeting will be 22, 2011. A summary of those Court for its consideration. held Sept. 9, 2011. actions will be published after the minutes are approved. The APPLICATIONS TO next meeting of the Board of SUSPEND AND Governors will be held APPLICATIONS TO STRIKE August 26, 2011, in Vinita. Executive Director Williams reported preliminary lists of

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1861 BAR FOUNDATION NEWS OBF 2011 Court Grant Awards By John D. Munkacsy

The Oklahoma Bar Founda- District Court of District Court of tion is pleased to announce Tillman County $5,628 Cherokee County $11,000 the 2011 OBF Court Grant One digital courtroom recording Video and screen technology recipients totaling $119,297. system equipment for four courtrooms Each year the foundation man- ages a separate grant cycle for District Court of District Court of Oklahoma district courts and Adair County $5,191 Garvin County $10,174 appellate courts to assist with One courtroom sound system One digital court reporting courtroom technology and system and sound technology other similar needs relating to District Court of equipment the administration of justice. Kay County $8,550 The OBF Court Grant Fund District Court of Courtroom sound system and was established in 2008 Custer County $3,000 assisted hearing technology through a generous cy pres equipment Digital signage for public award; please read on to learn courthouse information and more about cy pres. This year District Court of directions grant funds have gone to the Major County $4,000 following court systems: District Court of Courtroom audio/visual Payne County $12,746 2011 OKLAHOMA BAR technology equipment Four courtroom sound systems FOUNDATION GRANT District Court of AWARDS Comanche County $9,814 District Court of Law Library of the Tulsa County $12,000 District Court of Two digital stenographic realtime Oklahoma County $5,478 court reporting systems Security technology equipment for criminal felony entrances, District Court of Six public access computers and courtroom sound system Canadian County $16,853 software to be located in the equipment and juvenile division Oklahoma County Courthouse Conference area conversion with audio/visual technology Law Library; visitors will be computer technology equipment equipment assited by staff District Court of District Court of Wagoner County $11,000 Jackson County $3,863 Video and screen technology Audio technology equipment for equipment for four courtrooms improvements to one courtroom

1862 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 WHAT ARE CY PRES justice a reality for “the little Corporate and institutional AWARDS? guy” who otherwise would defendants involved in class- not be able to obtain the pro- action litigation need not be Cy pres awards are final sur- tection of our court system. concerned about cy pres funds plus funds in class-action Through the OBF’s compre- going to a party that is possi- cases, and sometimes other hensive grant award process, bly antagonistic to their corpo- types of court proceedings, applicants and a panel of rate or business interests. that for any number of reasons diverse individuals with a cannot be distributed to The OBF is a proven class members or bene- organization that has ficiaries who were the been helping people for intended recipients. Cy the more than 60 years. pres distribution of sur- The foundation holds plus funds is utilized an important place in when it has become dif- public interest law and ficult or impossible to in the philanthropic identify those to whom community, with damages should be diverse stakeholders assigned or distributed. that work to address In these instances, the legal service needs and court may authorize a eliminate systemic bar- cy pres distribution to riers to access to justice. appropriate charitable organizations. The trust In recent years, the doctrine of cy pres and Oklahoma Bar Founda- the courts’ broad equi- tion has been fortunate cy table powers permit to receive generous pres cy use of such funds for awards. These pres public interest purpos- awards are key es by educational, char- components for growth itable and other public service and outreach of OBF’s wide range of interests and organizations. Cy pres funds charitable mission and will expertise come together to may be used to support cur- enable the foundation to pro- strategically and objectively rent programs or, where vide for increases in overall allocate resources to support appropriate, to constitute an grant awards and the capacity dozens of outstanding law- Cy pres endowment and source of for new initiatives. related programs and initia- future income for long-range awards to the foundation can tives, making OBF an attrac- programs that can be used in and will make a tremendous tive charitable investment conjunction with other con- difference benefiting law- choice for cy pres awards. temporaneously raised funds. related programs throughout Oklahoma. CY PRES CONSIDER OBF FOR CY Please contact me or the Okla- PRES AWARDS The OBF has the flexibility homa Bar Foundation office to of using cy pres awards to The OBF’s mission, “to pro- speak with a Trustee about cy expand its comprehensive mote justice, fund critical legal pres options at 405-416-7070 or programs or to target funds services and advance public [email protected]. toward specific access to jus- awareness of the law” makes tice projects and initiatives. John D. Muncaksy Jr. is the it a perfect match for class- Moreover, the foundation’s president of the Oklahoma Bar action cy pres awards, as the purpose of advancing educa- Foundation. He can be reached underlying premise for class tion, citizenship and justice for at [email protected]. actions is to make access to all is as American as apple pie.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1863 FELLOW ENROLLMENT FORM Attorney Non-Attorney

Name: (name, as it should appear on your OBF Fellow Plaque) County Firm or other affiliation:

Mailing & delivery address:

City/State/Zip:

Phone: E-Mail Address: The Oklahoma Bar Foundation was able to assist 23 different programs or projects during 2010 and 25 in 2009 through the generosity of Oklahoma lawyers – providing free legal assistance for the poor and elderly; safe haven for the abused; protection and legal assistance to children; law-related education programs; other activities that improve the quality of justice for all Oklahomans. The Oklahoma Bar legend of help continues with YOU.

I want to be an OBF Fellow now – Bill Me Later! $100 enclosed & bill annually LAWYERS Total amount enclosed, $1,000 TRANSFORMING LIVES New Lawyer 1st Year, $25 enclosed & bill annually as stated Through education, citizenship and New Lawyer within 3 Years, $50 enclosed & bill annually as stated justice for all. I want to be recognized at the higher level of The Oklahoma Bar Sustaining Fellow & will continue my annual gift legend of help continues of at least $100 – (initial pledge should be complete) with YOU! I want to be recognized at the highest leadership level of Benefactor Fellow & annually contribute at least $300 – (initial pledge should be complete)

∞ To become a Fellow, the pledge is $1,000 payable within a 10-year period at $100 each year; however, some may choose to pay the full amount or in greater increments over a shorter period of time.

∞ The OBF offers lesser payments for newer Oklahoma Bar Association members:  — First Year Lawyers: lawyers who pledge to become OBF Fellows on or before Jan. 2, of the year immediately following their admission may pay only $25 per year for two years, then only $50 for three years, and then at least $100 each year thereafter until the $1,000 pledge is fulfilled.  — Within Three Years: lawyers admitted three years or less at the time of their OBF Fellow pledge may pay only $50 per year for four years and then at least $100 each year thereafter until the $1,000 pledge is fulfilled.

∞ Sustaining Fellows are those who have completed the initial $1,000 pledge and continue their $100 annual contribution to help sustain grant programs.

∞ Benefactor Fellows is the highest leadership giving level and are those who have completed the initial $1,000 pledge and pledge to pay at least $300 annually to help fund important grant programs. Benefactors lead by example.

Your Signature & Date: OBA Bar#

PLEASE KINDLY MAKE CHECKS PAYABLE TO: Oklahoma Bar Foundation • P.O. Box 53036 • Oklahoma City, OK 73152-3036 • (405) 416-7070 Many thanks for your support & generosity!

1864 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 LAWYERS FOR HEROES Military Assistance Program Thrives Free CLE for New Volunteers By Deborah Reheard

We are more than halfway tice areas in which service through the inaugural year of members are most likely to Legal Eagles our Oklahoma Lawyers for encounter issues, such as America’s Heroes project, family law, consumer or The following is a list of Oklahoma what we believe will be the credit issues, estate planning lawyers who have taken a case for first of many years for this and disability law. an American Hero. We thank them important community service for their service to this program The program is being co- program for our association. and will be adding to this list in sponsored by the Garfield So far, more than 300 military the future! County Bar Association. service members and veter- Cleveland County Bar Association Our partner organization, ans have requested our assis- Pros4Vets, is also spon- Tulsa County Bar Association tance with their legal chal- soring the event and will John Abbamondi, Choctaw lenges, and we stand ready provide lunch for attendees. for action. Hundreds of Okla- Kevin Adams, Tulsa To sign up, visit homa lawyers have stepped Charles F Alden III, Oklahoma City www.okbar.org/s/7sdpi up and are volunteering or call (405) 416-7006. Chris Arledge, Mustang pro bono representation of Aaron Arnall, Midwest City American heroes. WHY SHOULD YOU VOLUNTEER? Paul Austin, Oklahoma City We continue to encourage Willie Baker, Stillwater bar members to sign up for We have found that young- the project, because as news er reservists who are paid the Thad Balkman, Norman of the program spreads, we least are often the most at- Lagailda Barnes, Oklahoma city anticipate the demand for risk for legal problems. They Ana Basora-Walker, Lawton are in stressful situations and our services will increase Gabe Bass, Oklahoma City dramatically. With that in are separated from their fam- mind, the OBA Continuing ilies. This stress can lead to Jeremy Beaver, McAlester Legal Education Department trauma, substance abuse and Michelle Betchel, Oklahoma City is offering a free CLE this suicide. As an association, Cheryl Blake, Norman month for lawyers who our goal is to step in and Terri Blakley, Enid volunteer to provide 20 prevent these problems from hours of pro bono assistance spiraling out of control. As Gary Blevins, Oklahoma City to service members in need. attorneys, this program William Blew, Edmond gives us the opportunity to Kayla Bower, Oklahoma City The free CLE is set for 8:30 serve those who have served a.m., Aug. 19 at the North- us in defending our free- Randall Breshears, Oklahoma city western Oklahoma State dom. As your president, I Carson Brooks, Oklahoma City University – Enid Campus, encourage you to repay the David Brooks, Sayre 2929 E. Randolph. Participat- debt we owe these American Ryan Brown, Oklahoma City ing attorneys will receive heroes for the sacrifices they seven hours of MCLE includ- make on the battlefield and Paul Brunton, Tulsa ing one hour of ethics. The back home. Derek Burch, Oklahoma City CLE will touch on the prac- continued

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1865 The Aug. 19 CLE in Enid Rachel Bussett, Oklahoma City Debbra Gottschalk, Tulsa mirrors a similar program that took place in Oklaho- Alyssa Campbell, Stillwater Robert Grantham, El Reno ma City in February. That Jack A. Canon, Tulsa Jan Grant-Johnson, Norman “OBA Bootcamp: Oklaho- Patrick Carlson, Norman Deresa Gray, Ada ma Lawyers Representing Ronald Cates, Tulsa Billy Griffin, Oklahoma City America’s Heroes,” was Kimberly Cathey, Stillwater an amazing event that Graham Guhl, Oklahoma City Dietmar Caudle, Lawton made me proud to lead David Guten, Tulsa Samuel Chavers, Oklahoma City this association. In addi- John Hall, Oklahoma city tion to becoming better Paul Choate, Shawnee Fletcher Handley, El Reno educated in the best prac- Cathy Christensen, Oklahoma City tices for representing our Robert Clark, Oklahoma City Gretchen Harris, Oklahoma City service members, we had Clint Claypole, Enid Amy K. Hart, Bartlesville a lot of fun. A surprise Lorenzo Collins, Ardmore Kimberly Hays, Tulsa visitor included NFL standout and former Remona K. Colson, Bartlesville Theresa Hill, Tulsa Sooner Roy Williams. Joshua Copeland, Norman Mark Hixson, Yukon While we can’t guarantee Lorrie Corbin, Edmond Craig Hoehns, Elk City football legends at every Elliott Crawford, Nichols Hills Dan Holloway, Oklahoma City CLE, we can guarantee Roger Creecy, Midwest City Sharon Holmes, Tulsa that this will be a reward- ing and fulfilling experi- Matthew Crook, Tulsa Paul D. Hoppe, Edmond ence for lawyers who Joe Crosthwait, Midwest City Thomas Hosty, Oklahoma City sign up. Ross Crutchfield, Tulsa Chris Hunt, Owasso We already anticipate Dustin Davis, Edmond Gregory Jackson, Shawnee more than $1 million Marcia Davis, Oklahoma City Stephanie Jackson, Oklahoma City worth of legal services will Tim E. DeClerck, Enid Gregory James, Bethany be donated to our military Stephen Dixon, Midwest City Thomas Janer, Bartlesville members as a result of this Elaine Dowling, Oklahoma City Rita Jencks, Edmond program. While that’s a James Drummond, Norman A.J. Jones, Edmond great number, it’s only a start. We hope that OBA Brandelyn Duden, Oklahoma City Ramona Jones, Tulsa members who could not Jessica Earley, Edmond Kurtis Kennedy, Tulsa attend the CLE in Oklaho- Leslie A. Ellis Kissinger, Claremore Pamela Kennedy, Yukon ma City will make the Bryan Evans, Edmond Wayne Kennon, Miami trip to Enid and join us in Stanley Evans, Oklahoma City Todd Kernal, Norman our efforts. Please ask Valerie Michelle Evans, Edmond yourself this question: Jennifer Kirkpatrick, Oklahoma City “For those who serve, Blake Farris, Oklahoma City Tommy D. Klepper, Norman will you serve?” Brenda Fitzpatrick, Edmond Paul Kolker, Oklahoma City Jeri Fleming, Stillwater Paul Kouri, Oklahoma City John Foley, Oklahoma City Mary Kathryn Kunc, Oklahoma City Kent Frates, Oklahoma City Charles “Tim” Laughlin, Norman Robert C. Fries, Bartlesville David Leavitt, Edmond Robert J. Fries, Enid James Lockhart, Norman Doug Friesen, Oklahoma City Velia Lopez, Tulsa Tracey A. Garrison, Tulsa Ginger Maxted, Oklahoma City Andrew Gass, Oklahoma City Katherine Mazaheri, Sarah J. Gerads, Oklahoma City Oklahoma City Douglas Gierhart, Choctaw Becky McDown, Oklahoma City Kent Gilliland, Oklahoma City LeAnne McGill, Edmond Robert Gilliland, Oklahoma City Neil McGuffee, Oklahoma City

1866 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Waynette McKay, Oklahoma City Warren Plunk, Oklahoma City Peggy Stockwell, Norman Jan Meadows, Norman Patricia Podolec, Oklahoma City Justin Stout, Muskogee Erin Means, Enid Helen Puhl, Tulsa Weldon Stout, Muskogee L.A. Mercer, Bethany Kenneth Rainbolt, Durant James T. Stuart, Shawnee Regina Meyer, Shawnee Kathi Rawls, Moore Tara T. Tabatabaie, Oklahoma City Kenneth Miles, Tulsa Deborah Reheard, Eufaula Mary Travis, Edmond Tracey Miller, Oklahoma City Richard Riggs, Oklahoma City Phillip Tucker, Edmond Linda Modestino, Yukon Ryland Rivas, Chickasha Joy Turner, Oklahoma City John Monnet, Oklahoma City Faye Rodgers, Edmond Russell Wallace, Tulsa Todd Murray, Oklahoma City Timothy Rogers, Tulsa Joseph Walters, Oklahoma City Paul Naylor, Tulsa Janet Roloff, Edmond Laura Walters, Edmond Weldon Nesbitt, Norman Charles Rouse, Oklahoma City Shamika S. Webb, Oklahoma City Donna Nichols, Edmond Mitchell Rozin, Oklahoma City Daniel White, Oklahoma City Brenda Nipp, Stillwater Amy Sellars, Tulsa Betty Williams, Muskogee Scott Pappas, Stillwater Sidney Wade Shaw, Cushing Cassandra Williams, Kendall Parrish, Oklahoma City Jay Silvernail, Oklahoma City Oklahoma City Kevin Pate, Norman Parker Smith, Bethany John Williams, Edmond Gisele Perryman, Oklahoma City Riki Snyder, Oklahoma City Sean Williams, Edmond Iris A. Philbeck, Tulsa Alan Souter, Tulsa James Willson, Lawton Gilbert Pilkington, Tulsa Leslie A. Sparks, Oklahoma City Joseph Wolf, Oklahoma City Thomas R. Pixton, Elk City Sarah Stewart, Oklahoma CIty C. Michael Zacharias, Tulsa

To get your free listing on Bass Law Welcomes Justin Meek to the OBA’s lawyer the Firm’s Civil Litigation Practice. Justin’s practice will include all areas of civil litigation listing service! with a primary focus on personal injury, insurance, and Just go to www.okbar.org and log into estate litigation. your myokbar account. 201 Robert S. Kerr 104 North Rock Island Avenue 10th Floor, Suite 1001 P.O. Box 157 Then click on the Oklahoma City, OK 73102 El Reno, OK 73036 “Find a Lawyer” Link. office405.262.4040 fax 405.262.4058 web www.basslaw.net

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1867 ACCESS TO JUSTICE

A Decision Not to Regret By Elizabeth Knox

Deciding where to complete Walking out of Legal Aid Beyond learning the court- your first summer internship after completing my first day room etiquette and the practi- in law school can be a difficult as an intern, I was so relieved. cal application of the law, I decision. Everyone is so Karl Rysted, my supervising learned one valuable lesson focused on surviving the first attorney, was so eager to that, unfortunately, many year that the decision sneaks answer my questions and take attorneys never learn. I up on you quickly. People talk time out of his day to ensure learned that even the most about working at large firms, that I was learning as much as emotionally draining work is clerking for judges, finding a possible. While I was exposed easily approached with a pos- solo firm in their hometown, to unfortunate stories of itive attitude if you maintain and working in public service. domestic violence, I left feeling a life outside of work. Being Each sector has its own attrac- uplifted because I was able to in law school, I heard every- tiveness, so how do you help the victims take the first one from professors to prac- choose? step out of a difficult situation. ticing attorneys tell me how I couldn’t wait to come back necessary it is to establish a I chose based on exposure. the next day. proper work/life balance. I had already accepted a posi- However, it never truly reso- tion as a research assistant, so Within a few days, I was in nated until I was walking I wanted my internship to go court observing the Victim’s through an office filled with beyond drafting memos and Protective Order docket. A low-stress, positive attorneys. into the courtroom. To me, I week after that, I was sitting The work/life balance that needed to find a place where in on an attorney/client inter- comes with choosing a career I could interact with clients, view. The following week, I in public service is essential in observe court proceedings, and attended a YWCA training being able to assist clients learn how the rules and cases I class on domestic violence with stories that would cause have been living and breathing and was given a tour of their anyone’s stomach to turn. all year long could have a life- women’s shelter. Then, just changing effect on people. I last week, I was asked by my Spending my first summer needed to work in the public supervising attorney to handle in law school working at Legal service sector. the intake decisions while he Aid was one of the best deci- was out of town for a couple sions I have ever made. I So, I went to a pro bono fair of days. Karl, of course, would strongly encourage everyone and met Sharon Ammon, the review my decisions upon his to find the time to volunteer volunteer coordinator for Legal return. Still, I was excited and with a public service organiza- Aid Services of Oklahoma. determined to utilize every- tion by either completing an After exchanging information thing I was learning in order internship, choosing one as a and asking a few simple ques- to reach the right decisions. career path, or simply volun- tions, I knew that this was the Just as I expected, other attor- teering to work pro bono on perfect internship opportunity neys were happy to answer just one case a year. Trust me for me. And now, nearly a any of my questions while — you won’t regret it! month into my summer, I can Karl was gone. They even say with confidence that I Ms. Knox is a second year law went out of their way to pop made the right choice. student at the OU College of Law. in my office and ask how things were going.

1868 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 YOUNG LAWYERS DIVISION Successful Mid-Year Meeting Offered First-Ever Events By Roy D. Tucker, YLD Chairperson

The YLD held its mid-year meeting in conjunction with the Solo & Small Firm Confer- ence in June. This year’s meet- ing and coordinated events were intended to draw from YLD members who had not previously been active in the division. The meeting had a number of firsts, including hosting our first ever speed networking event and our first YLD poolside reception. The speed networking event met with great success and enthusi- YLD members enjoy the festive atmosphere at the Solo & Small asm from everyone involved. Firm Conference. From left: Jeff Trevillion, Javier Ramirez, Amber The room was set up with two Peckio-Garrett, Jennifer Kirkpatrick, Bryon Will, Timothy Rogers circles, one inside the other and Sarah Stewart with chairs facing each other. Senior bar leaders were seated themselves and converse the next bar leader and the inside the smaller circle, with on topics ranging from bar five-minute timer restarted. each YLD member seated involvement, hobbies, employ- The scenario repeated until across in the outer circle. ment and future plans. After each YLD member had the Participants were given five time was called, the YLD mem- opportunity to meet and minutes to meet, introduce ber shifted seats to meet with acquaint with each bar leader. Special thanks are especially due to President Deborah Reheard, President-Elect Cathy Christensen, Judge Martha Rupp Carter, Michelle Nelson, Stephen Beam, TU Assistant Dean Kristine Bridges, OBA Gov. Scott Pappas and OBA Gov. Lou Ann Moudy for their par- ticipation in our event. It is with their support that the event met with such success. Plans are already in the works for another YLD speed net- The Mid-Year Meeting gives YLD members the chance to network working event during the and reconnect with old friends. From left: Michael Cooper, Kaleb annual meeting. Hennigh, LeAnne McGill and Joe Vorndran

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1869 Last month, the YLD direc- tors gathered to assemble the infamous bar exam survival kits for distribution to those taking the July bar exam. These kits contained items such as ear plugs, stress balls, pens, pen- cils, aspirin, bottled water and YLD information cards. In tan- dem, the YLD will also be assembling “Desert Survival Kits” to send to our recently deployed national guardsmen serving abroad. These kits will contain such things as powder, sunscreen, socks, toothbrushes, etc., and are intended as a small token of appreciation on The first-ever poolside reception helps YLD members beat the heat. From behalf of Oklahoma lawyers. left: Breea McCorkle, Sarah Stewart, Kaleb Hennigh, Robert Faulk, Lane Neal, Roy Tucker and Timothy Rogers THE HEAT IS ON “Surviving the Season” is a July 1. The high temperature in IN OTHER NEWS Muskogee was 100 degrees or YLD committee designed to Finally, the YLD is also higher on 22 of the next 24 assist Oklahomans residing in pleased to announce that days. The service was greatly homes without working air Immediate-Past Chair Molly appreciated by Muskogee conditioning. The goal is to Aspan participated in ABA/ County DHS Director Mike help needy families survive the YLD leadership training and Jackson, who noted that recent brutal summer heat, and as FEMA training in June at the budget cuts have drastically part of the YLD’s long-standing ABA headquarters in Chicago. affected his department’s tradition of public service proj- Molly was selected earlier this ability to provide this type ects, $500 of the division’s year to serve as the District 24 of service. funding from the OBA was representative to the ABA/ used to fund the committee. YLD Executive Council, and she will officially District 7 Director assume her duties at Justin Stout spear- the conclusion of the headed this commit- ABA Annual Meeting tee in 2011, partnering in August. District 24 with Checotah attor- includes Oklahoma ney Carmen Rainbolt and Arkansas and is on the effort. The two one of 65 seats on the worked with Depart- council, which con- ment of Human Ser- siders and makes vices representatives ABA/YLD policy in Muskogee and when the assembly McIntosh counties to is not in session. As compile a list of those district representa- in need, which includ- tive, Molly will also ed families with small implement disaster children as well as the legal services for elderly. Fifteen high- FEMA disaster decla- quality box fans YLD Director Justin Stout delivers donated fans to DHS rations in Oklahoma were delivered to employees in July. The fans are destined for the homes of and Arkansas. DHS offices on needy Oklahomans living without air conditioning, as part of the YLD’s “Surviving the Season” project.

1870 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 Calendar August Oklahoma Bar Foundation Trustee Meeting; OBA Rules of Professional Conduct 19 8 1 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Subcommittee Meeting; 3 p.m.; Oklahoma Bar Tulsa; Contact: Nancy Norsworthy (405) 416-7070 Center, Oklahoma City; Contact: Paul Middleton (405) 235-7600 20 OBA Law-related Education We the People Training; 8:30 a.m.; Oklahoma Bar Center, Oklahoma OBA Law-related Education Task Force Meeting; 9 City; Contact: Jane McConnell (405) 416-7024 3 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Reta Strubhar 25 OBA Men Helping Men Support Group; 5:30 p.m.; (405) 354-8890 The Center for Therapeutic Interventions, Suite 510, OBA Rules of Professional Conduct Tulsa; RSVP to: Kim Reber (405) 840-3033 Subcommittee Meeting; 3 p.m.; Oklahoma Bar Oklahoma Bar Foundation Grants and Awards Center, Oklahoma City; Contact: Paul Middleton Committee Reviews; 8:30 a.m.; Oklahoma Bar (405) 235-7600 Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 10 OBA Diversity Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa 26 OBA Board of Governors Meeting; Vinita, County Bar Center, Tulsa; Contact: Jeff Trevillion Oklahoma; Contact: John Morris Williams (405) 778-8000 (405) 416-7000 OBA Government and Administrative Law OBA Communications Committee Meeting; Practice Section Meeting; 4 p.m.; Oklahoma Bar 12 p.m.; Oklahoma Bar Center, Oklahoma City and Center, Oklahoma City and Tulsa County Bar Center, OSU Tulsa; Contact: Mark Hanebutt (405) 948-7725 Tulsa; Contact: Bryan Neal (405) 522-0118 11 OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; September Contact: Rick Goralewicz (405) 521-1302 OBA Solo and Small Firm Committee Meeting; 1 OBA Men Helping Men Support Group; 5:30 p.m.; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with The Oil Center – West Building, Suite 108W, Oklahoma teleconference; Contact: Jim Calloway (405) 416-7051 City; RSVP to: Kim Reber (405) 840-3033 OBA Women Helping Women Support Group; OBA Women Helping Women Support Group; 5:30 p.m.; The Oil Center – West Building, Suite 108W, 5:30 p.m.; The Center for Therapeutic Interventions, Oklahoma City; RSVP to: Kim Reber (405) 840-3033 Suite 510, Tulsa; RSVP to: Kim Reber (405) 840-3033 12 Oklahoma Association of Black Lawyers 5 OBA Closed – Labor Day Observed Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donna Watson (405) 721-7776 8 OBA Women Helping Women Support Group; OBA Family Law Section Meeting; 3:30 p.m.; 5:30 p.m.; The Oil Center – West Building, Suite 108W, Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Oklahoma City; RSVP to: Kim Reber (405) 840-3033 Contact: Kimberly Hays (918) 592-2800 OBA Awards Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: 16 OBA Civil Procedure and Evidence Code D. Renée Hildebrant (405) 713-1423 Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: 9 OBA Budget Committee Meeting; 10 a.m.; James Milton (918) 591-5229 Oklahoma Bar Center, Oklahoma City; Contact: Craig Combs (405) 416-7040 18 OBA Justice Commission Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: OBA Military Assistance Task Force Meeting; Drew Edmondson (405) 235-5563 2 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Dietmar Caudle (580) 248-0202 OBA Bar Association Technology Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Gary Clark (405) 744-1601

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1871 15 Oklahoma Bar Foundation Committee Meeting; 5 OBA Men Helping Men Support Group; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: 5:30 p.m.; The Oil Center – West Building, Suite Nancy Norsworthy (405) 416-7070 108W, Oklahoma City; RSVP to: Kim Reber (405) 840-3033 16 OBA Board of Governors Meeting; Yukon, Oklahoma; Contact: John Morris Williams OBA Women Helping Women Support Group; (405) 416-7000 5:30 p.m.; The Center for Therapeutic Interventions, Suite 510, Tulsa; RSVP to: Kim Reber (405) 840-3033 17 OBA Young Lawyers Division Committee Meeting; Tulsa County Bar Center, Tulsa; Contact: 13 OBA Women Helping Women Support Group; Roy Tucker (918) 684-6276 5:30 p.m.; The Oil Center – West Building, Suite 108W, Oklahoma City; RSVP to: Kim Reber 20 OBA Law-related Education PROS Elementary (405) 840-3033 Training; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 14 Oklahoma Association of Black Lawyers Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma OBA Civil Procedure and Evidence Code City; Contact: Donna Watson (405) 721-7776 Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: OBA Family Law Section Meeting; 3:30 p.m.; James Milton (918) 591-5229 Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly Hays (918) 592-2800 21 OBA Law-related Education PROS Secondary Training; 8:30 a.m.; Oklahoma Bar Center, Oklahoma 18 OBA Civil Procedure and Evidence Code City; Contact: Jane McConnell (405) 416-7024 Committee Meeting; 3:30 p.m.; Oklahoma Bar Ruth Bader Ginsburg American Inn of Court; Center, Oklahoma City and OSU Tulsa; Contact: 5 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: James Milton (918) 591-5229 Donald Lynn Babb (405) 235-1611 20 OBA Leadership Academy; 9:30 a.m.; Oklahoma 22 OBA Men Helping Men Support Group; Bar Center, Oklahoma City; Contact: Heidi McComb 5:30 p.m.; The Center for Therapeutic Interventions, (405) 416-7027 Suite 510, Tulsa; RSVP to: Kim Reber (405) 840-3033 21 OBA Leadership Academy; 8 a.m.; Oklahoma New Admittee Swearing In Ceremony; House of Bar Center, Oklahoma City; Contact: Heidi McComb Representative Chambers, State Capitol; Contact: (405) 416-7027 Board of Bar Examiners (405) 416-7075 OBA Board of Governors Meeting; Oklahoma Bar OBA Budget Committee Meeting; 12 p.m.; Center, Oklahoma City; Contact: John Morris Williams Oklahoma Bar Center, Oklahoma City; Contact: (405) 416-7000 Craig Combs (405) 416-7040 OBA Lawyers Helping Lawyers Assistance OBA Justice Commission Meeting; 2 p.m.; Program Training; 11 a.m.; Oklahoma Bar Center, Oklahoma Bar Center, Oklahoma City; Contact: Oklahoma City with teleconference; Contact: Drew Edmondson (405) 235-5563 Tom Riesen (405) 843-8444 27 OBA Legal Intern Committee Meeting; 3 p.m.; 22 OBA Young Lawyers Division Committee Oklahoma Bar Center, Oklahoma City with tele- Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma conference; Contact: Candace Blalock (405) 238-3486 City and Tulsa County Bar Center, Tulsa; Contact: 28 OBA Law Office Management and Technology Roy Tucker (918) 684-6276 Section Meeting; 3:30 p.m.; Oklahoma Bar Center, 26 Ruth Bader Ginsburg American Inn of Court; Oklahoma City; Contact: Kent Morlan (918) 582-5544 5 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: October Donald Lynn Babb (405) 235-1611 27 OBA Men Helping Men Support Group; 5:30 p.m.; The Center for Therapeutic Interventions, OBA Management Assistance Program 4 Suite 510, Tulsa; RSVP to: Kim Reber (405) 840-3033 Opening Your Law Practice; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jim Calloway OBA Justice Commission Meeting; 2 p.m.; (405) 416-7051 Oklahoma Bar Center, Oklahoma City; Contact: Drew Edmondson (405) 235-5563

1872 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 FOR YOUR INFORMATION

The OBA recently hosted a luncheon for law students from four universities in China. The students were in Oklahoma City to attend the Certificate in American Law Course at the OCU School of law. Among those attending were (from left) OCU Law Dean Emeritus Law- rence Hellman, Andrew Chen, Roxannie Zhang and OBA President Deborah Reheard.

Judicial Nominating Commission Election Results Weldon W. Stout Jr. of Mr. Tucker is a partner in Muskogee and John Tuck- the law firm Rhodes, Hiero- er of Tulsa have been nymus, Jones, Tucker & elected to serve on the Gable PLLC. He is also a state’s Judicial Nominat- senior adjunct settlement ing Commission. Each judge for special projects in will serve as one of six the U.S. District Court for lawyers on the 15-member the Northern District of commission. Both will Oklahoma. He is a fellow of take office in October. the Oklahoma and Ameri- Weldon W. Stout Jr. can Bar Foundations and a John Tucker Mr. Stout will represent member of the Tulsa Coun- District Two, comprised ty, Oklahoma and American Bar Associations. of Adair, Cherokee, Craig, Delaware, Mayes, He is a fellow of the International Academy McIntosh, Muskogee, Nowata, Okfuskee, of Trial Lawyers and a member of the Ameri- Okmulgee, Osage, Ottawa, Pawnee, Rogers, can Board of Trial Advocates. He is also a Sequoyah, Wagoner and Washington coun- fellow, past regent, committee and state chair- ties. Mr. Tucker will represent District One, man of the American College of Trial Lawyers comprised of Tulsa and Creek counties. as well as past Oklahoma chairman of the Mr. Stout has engaged in private legal prac- U.S. Supreme Court Historical Society. He tice with the firm of Wright, Stout & Wilburn is a graduate of the OU College of Law. since 1980. Prior to that, he served as an The six lawyer members of the commission assistant to former Muskogee District each represent districts that mirror Oklaho- Attorney Mike Turpen. He also served as ma’s six congressional districts as they existed an assistant district attorney in Stephens in 1967, when the commission was created. County. He is a 1974 graduate of OCU Elections are held each odd-numbered year School of Law. He is a former president of for members from two districts. Elections for the Muskogee County Bar Association and Districts One and Two took place over the served on the OBA Board of Governors summer. The OBA is charged with conduct- from 1989–1991. ing the elections of lawyers.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1873 OBA Staffer Named Top Legal Innovator OBA MAP Director Jim having chaired the ABA Tech- Calloway has been named show and spoken about legal one of the Fastcase 50, a desig- technology just about every- nation “honoring the law’s where one can. Legal tech is smartest, most courageous often intimidating and bewil- innovators, techies, visionaries dering to users — and despite and leaders” by the online (because of?) Jim’s mastery, he legal research firm. is still able to explain hard- Mr. Calloway was one of only ware, software and processes three bar association employ- in ways that any lawyer can ees from across the country to understand.” make the list, which includes some of the heaviest hitters in Jim Calloway the legal profession. More about the Mr. Calloway is co-producer of Fastcase 50 the monthly podcast, The Digital Edge: and this year’s winners Lawyers and Technology. He was recog- are available at: nized by Fastcase as “a legal tech Jedi — www.fastcase.com/fastcase50-winners/

High Court, Appellate Courts, Lawyers Helping Lawyers OKC Meeting AOC Move to New Offices Place Has Changed The Oklahoma Supreme Court, Court CABA Inc., with whom the OBA contracts to of Criminal Appeals, Court of Civil provide counseling and treatment services to Appeals and the Administrative Office its members, has moved its Oklahoma City of the Courts have moved their offices to offices. They are located in the east building of the new Oklahoma Judicial Center locat- the Oil Center, now on the first floor. The ed across the street from the State Capi- address is 2601 N.W. Expressway, Suite 104-E, tol building. New mailing addresses and Oklahoma City, 73112-7245. All telephone contact numbers for the courts are: numbers and email addresses remain the Supreme Court same. This office is the location for separate Oklahoma Judicial Center monthly support group meetings for male and 2100 N. Lincoln Blvd., Suite 1 female lawyers. Meetings are also held in Oklahoma City, OK 73105-4907 Tulsa. As always, confidentiality is a top prior- (405) 556-4000 ity for members participating in Lawyers Helping Lawyers. More information about Court of Criminal Appeals the program is available on the OBA website Oklahoma Judicial Center at www.okbar.org/members/lhl. 2100 N. Lincoln Blvd., Suite 2 Oklahoma City, OK 73105-4907 (405) 556-9600 Administrative Office of the Courts OIDS Relocates Main Office Oklahoma Judicial Center 2100 N. Lincoln Blvd., Suite 3 The main office of the Oklahoma Indigent Oklahoma City, OK 73105-4907 Defense System has moved. The new physical (405) 556-9300 address is 111 N. Peters Ave., Suite 500, Norman. The mailing address remains Clerk of the Appellate Courts the same: Oklahoma Judicial Center 2100 N. Lincoln Blvd., Suite 4 P.O. Box 926 Oklahoma City, OK 73105-4907 Norman (405) 556-9400 73070 All phone numbers also remain unchanged.

1874 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 OBA Member Reinstatements The following members of the OBA suspended for nonpayment of dues or noncompliance with the Rules for Mandatory Continuing Legal Education have complied with the require- ments for reinstatement, and notice is hereby given of such reinstatement: Soo-Kyung Ahn, Melissa Fair, OBA No. 22136 Stephen S. Parker, OBA No. 19631 828 D Street, S.E., Apt. 4 OBA No. 12433 3826 Welwyn St. Washington, DC 20003-2143 416 S.W. 79th St., Apt. A100 Vancouver, B.C. Canada Kristen Anne Hilty, Oklahoma City, OK 73143 V5N 3Y9, FO 00001 OBA No. 21214 William John Patterson, Lagailda F. Barnes, P.O. Box 722334 OBA No. 11148 OBA No. 19985 Norman, OK 73070 1643 S. Florence Avenue 7300 N.W. 23rd St., Suite 401 Timothy Paul Kent, Tulsa, OK 74104 Bethany, OK 73008 OBA No. 21527 Shaun Thomas Riley, Bert L. Belanger, 125 N.W. 15th, Apt. 701 OBA No. 21887 OBA No. 10205 Oklahoma City, OK 73103 228 Robert S. Kerr, Suite 100 Urban Works Inc. Thomas Andrew Mortensen, Oklahoma City, OK 73102 P.O. Box 14467 OBA No. 19183 David Lee Thomas, Oklahoma City, OK 73113 1331 S. Denver Avenue OBA No. 8926 Nina Ann Cherian, Tulsa, OK 74119 3501 N.W. 63rd St., Suite 301 OBA No. 19315 Gregory Allen Mueggenborg, Oklahoma City, OK 73116 9702 Valley Lake Court OBA No. 21760 Steven W. Vincent, Irving, TX 75063 6508 Clear Creek Loop OBA No. 9237 Nathan David Corbett, Bartlesville, OK 74006-8009 P.O. Box 701765 OBA No. 21633 Matthew David Neal, Tulsa, OK 74170-1765 217 E. Daws, Apt. A OBA No. 22660 Nathan Thomas Weems, Norman, OK 73071 3110 Oakmount Drive OBA No. 20885 Edmond, OK 73013 P.O. Box 172 Avon Lake, OH 44012

OBA Member Resignations The following members have resigned as members of the association and notice is hereby given of such resignation: Monty Scott Austin, John Mark Gifford, Matthew George Livingood, OBA No. 14470 OBA No. 20491 OBA No. 5473 5543 E. Sydney Place 1003 Acacia Circle 6211 S. Jamestown Ave. Littleton, CO 80130-7113 Noble, OK 73068 Tulsa, OK 74136-1424 Bernard Louis Broderick, Josh William Hopkins, Patrick Dane Medina, OBA No. 1152 OBA 20590 OBA No. 12142 514 Tiffany Trail The Hopkins Law Firm 329 73rd St., N.W. Dallas, TX 75081 PLLC Rochester, MN 55901 James C. Burkett, 500 N. Water Holly Gayle Mix, OBA No. 1333 Corpus Christi, TX 78401 OBA No. 6280 11701 Teton Road Mitchell David Jacobs, 8927 Carriage Lane Oklahoma City, OK 73162 OBA No. 17183 Indianapolis, IN 76256 Sharon Kay Womack Doty, 225 S. Meramec Ave., Janet Brenan Sherry, OBA No. 14462 Suite 1021T OBA No. 11516 1322 S. Houston Clayton, MO 63105 P.O. Box 720516 Tulsa, OK 74127 Julie Muslow Leclercq, Norman, OK 73070 Abbie Michele Fisher, OBA No. 20528 Courtenay Parrott Sobral, OBA No. 20694 11212 Leaning Elm Road OBA No. 17116 1451 Bonham Parkway Oklahoma City, OK 5030 N. May Ave., PMB 343 Argyle, TX 76226 73120-5726 Oklahoma City, OK 73112-6010

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1875 BENCH & BAR BRIEFS

Operation Aware, Monte Obama Administration to Cassino Middle School and attend a White House meet- Cascia Hall Preparatory ing addressing the issues of School in leadership roles. immigration legislation and administration priorities. Mr. he OU College of Law Stump is on the executive announces the addition of T committee for the 11,500 five new members to serve on klahoma Attorney Gener- member American Immigra- the college’s Board of Visitors. al Scott Pruitt has been tion Lawyers Association and O New members are OU law elected vice chairman of the has offices in Oklahoma City alumni Sean Burrage, Glenn Midwestern Region of the and Tulsa. National Association of Attor- Coffee, Tricia Everest, Brad neys General. He was elected Henry and Kathryn Taylor. he TU College of Law by his colleagues at the asso- Mr. Burrage, class of 1993, TAlumni Association ciation’s summer meeting. serves in the Oklahoma Sen- honored former Oklahoma ate, representing Oklahoma’s Attorney General Drew klahoma City Attorney Rogers and Mayes Counties Edmondson and Tulsa attor- OGeoff Long pedaled his in District Two. Mr. Coffee, ney John Woodard III with way to a nearly $6,000 dona- class of 1992, was recently awards at the annual TU Law tion to the Leukemia and appointed Oklahoma secretary Alumni Gala in May. Mr. Lymphoma Society. He also of state by the governor. Ms. Edmondson received the W. served as mentor for the Lake Everest, class of 2003, practices Thomas Coffman Community Tahoe Team in Training to at GableGotwals. Mr. Henry, Service Award, given to recip- raise money for the society, class of 1988, practices at Les- ients demonstrating dedica- requiring him to assist with ter, Loving and Davies. Ms. tion to integrity and service, fundraising, teambuilding Taylor, class of 1981, is a for- and Mr. Woodard received and encouraging team mer mayor of Tulsa and now the Lifetime Achievement in members through the practices at McAfee and Taft. Law Award. Mr. Edmondson cycling event. The board’s mission is to practices with GableGotwals advise the leadership of the after serving as Oklahoma ohn Gaberino will be OU College of Law as they Attorney General from 1994 inducted into the Tulsa Hall J strive to advance the quality to 2010. Mr. Woodard has of Fame at the annual cere- of academic programs and practiced law in Tulsa for 40 mony set for Oct. 20 at the research within the college years. He recently chaired Tulsa Convention Center. and increase the stature of TU’s Tulsa Undergraduate Mr. Gaberino served as OBA the college nationally. Research Challenge Advisory president in 1998. He is the Board in 2009 and 2010. former senior vice president att Stump recently of ONEOK, and he has also Mserved as a conference im Covington of Spring- served as president of the chair for the American Immi- Jfield, Ill., has been honored Tulsa County Bar Association. gration Lawyers Association with the Award for Excellence He is a member of the Tulsa Texas Chapter Spring Confer- by the Illinois Public Defend- Chapter of the National Con- ence on immigration law, er Association. He received ference for Community and which was held for the first the award for his outstanding Justice, served as campaign time in Oklahoma City. Mr. efforts in the legislative arena chairman and chairman of the Stump practices primarily to abolish the death penalty board of the Tulsa Area Unit- in the area of employment- in Illinois and for his commit- ed Way and board chairman based immigration law. ment to justice. In conjunction of the Tulsa Metro Chamber with Illinois becoming the Douglas Stump was one in 2001. Along with his wife, most recent state to abolish . of seven immigration former OBA First Lady Marge T the death penalty, Mr. Cov- attorneys from across the Gaberino who is also being ington was also honored by U.S. recently invited by the inducted, he has supported the Illinois Coalition Against

1876 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 the Death Penalty at its repeal he Tulsa County Bar Asso- other elder law issues. Ms. celebration. Tciation has elected its offi- Stewart received her under- cers and directors for 2011- graduate degree from OSU ichael E. Smith has 2012. Faith Orlowski is the and graduated cum laude been appointed to the M incoming president, and from OCU School of Law in Oklahoma Heritage Associa- James R. “Jim” Gotwals Jr. is 2009. She can be contacted at tion’s board of directors. president-elect. Paul Brunton (405) 528-0858, or sstewart@ The board of directors is the will serve as past president senior-law.org. governing body overseeing and James R. “Jim” Hicks the programs and operations ssistant Oklahoma Attor- was elected vice president. of the association which ney General Mykel Fry Other officers include Kim- A includes the Gaylord-Pickens has been chosen to lead the berly Moore, secretary; Mar- Museum in Oklahoma City. Medicaid fraud control unit vin Lizama, treasurer; Trisha Mr. Smith is a partner in the of the Office of Attorney Gen- Archer, library trustee; and Hall Estill Law Firm in the eral. Ms. Fry will lead a unit Kimberly K. Hays and Rob- Oklahoma City office. charged with investigating ert “Bob” P. Redemann, more than 100 cases of Medic- ames Shaw of Oklahoma directors-at-large. Bob Farris aid fraud throughout the state City has been elected to the continues to serve as the ABA J each year. Austin Presbyterian Theologi- delegate with one more year cal Seminary Board of Trust- remaining on his term. tacy Leeds has been ees. He will serve a three-year Snamed dean of the Univer- term beginning fall of 2011 sity of Arkansas School of through 2014. Mr. Shaw is a Law. She most recently served shareholder in the Hall Estill as the interim associate dean Law Firm. for academic affairs, professor of law, and director of the Trib- arah Jane Gillett of Tulsa al Law and Government Cen- was elected to serve as S ter at the University of Kansas member of the Oklahoma School of Law. She also cur- Fellows of the American Bar teven Dobbs, managing rently serves as chief justice of Foundation. Membership in attorney for Dobbs & Mid- S the Supreme Courts of both the Fellows is limited to one- dleton, is retiring from the the Kaw Nation and the Kicka- third of one percent of the firm as of Sept. 1. He will poo Tribe of Oklahoma. She lawyers in America. Ms. Gil- continue serving on the OBA received her J.D. from the Uni- lett serves as a shareholder Board of Governors and will versity of Tulsa and her LL.M. in the Hall Estill Law Firm. maintain a practice limited to from Wisconsin. contract trial work and defense Gabriel “Gabe” Bass of of attorneys charged with mis- ulsa law firm Pray Walker . Oklahoma City, Jason A conduct. He may be contacted announces Randall T. Boesch of Edmond, D. Casey T at [email protected]. Paul Duncan has joined the firm Davis of Monkey Island, Middleton will become man- as a shareholder and director Dana L. Kuehn of Tulsa, aging attorney for the firm, and Nik Jones has joined the Kyle D. Lankford of Nor- and its name will change to firm as counsel. Mr. Duncan man, Giannina Marin of Middleton, Nowakowski & has more than 20 years of Oklahoma City, Armando J. Smith. The firm remains locat- experience in the areas of Rosell of Oklahoma City, and ed at 100 N. Broadway, Suite general civil litigation, energy Kimber L. Shoop have each 2500, Oklahoma City, 73102; law, and oil and gas title been named “Achievers (405) 235-7600. work. Mr. Jones has more Under 40” by the Journal than 35 years of experience Record. The award is present- he Senior Law Resource in natural resources and real ed annually to Oklahomans Center Inc. announces T estate law, with a concentra- from a variety of professions Sarah C. Stewart of Oklaho- tion in oil and gas title work. who have “accomplished ma City has joined the firm as much and contributed signifi- senior managing attorney. She udge Eleanor T. Moser has cantly to their communities will assist the firm primarily Jretired as a judge after serv- and state.” in its focus on probates, estate ing 31 years on the bench. planning, guardianships and Since 2001, she has served as

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1877 a federal administrative law He represents business and ney General Greg Metcalfe judge with the Office of Hear- commercial aviation clients in has joined the firm. His new ings and Appeals, serving as a broad range of transactional practice will focus on commer- the chief judge of both the and regulatory matters. He is cial litigation and the provi- McAlester and Oklahoma a 1998 graduate of the OU sion of legal services to gov- City hearing offices. She College of Law. ernment agencies. Mr. Metcalfe began her career on the bench graduated first in his class raig Bryant, a Foreign as an Oklahoma City munici- from OCU School of Law and Service officer with the pal judge, the first woman C earned his undergraduate U.S. State Department, is cur- appointed to that position. degree from Southern Naza- rently serving as consul at the rene University, graduating sther Bell has joined the U.S. Embassy in Khartoum, summa cum laude. EKnoxville, Tenn., law firm Sudan. Mr. Bryant’s previous of Pitts & Brittian PC as an assignments have been at the ulsa firm Shook & John- associate. Prior to joining the embassies in Yaounde, Cam- Tson PLLC announces Sean firm, Ms. Bell was a patent eroon, Ottawa, Jerusalem, E. Manning has joined the attorney for the U.S. Depart- Bamyan, Afghanistan and as firm of counsel. Mr. Manning ment of Energy. She has also an Afghanistan desk officer in will be expanding his existing served as clerk to retired Okla- Washington. He has also business law practice. He homa Supreme Court Justice served on a detail assignment graduated from the TU Col- Hardy Summers. She is also as a legislative assistant to lege of Law in 2000 and holds admitted to practice before the U.S. Sen. Robert Menendez. a certificate in comparative U.S. Patent and Trademark and international Law. rowe & Dunlevy Office and the U.S. Supreme announces Jennifer ellers Snider announces Court. She is a 2001 graduate C Berry, Alison Howard, Susan McKenzie Anderson and of the University of Tennessee F Huntsman and Doug Tripp Klint A. Cowan are joining College of Law. have been elected directors of the firm in the Oklahoma ordon and Gordon Law- the firm. Ms. Berry is based in City offices. Ms. Anderson is Gyers announces Patrick the Oklahoma City office and returning to Oklahoma from Abitbol has become of coun- focuses her practice on com- New York City to practice a sel to the Claremore firm. Mr. mercial real estate, financing wide range of complex litiga- Abitbol will practice general and energy matters. Ms. tion, including cases involv- criminal law, personal injury Howard is also based in the ing bankruptcy and related law and domestic relations. firm’s Oklahoma City office, recovery actions based on He is a 1980 graduate of the where she practices primarily financial fraud and malfea- TU College of Law. in healthcare law and litiga- sance, consumer class actions, tion, with emphasis on ERISA and various types of business raham, Allen & Brown of matters, and handles complex and commercial disputes. Tulsa announces Valerie G appellate litigation in civil She is a 2007 graduate of the Dye and Shannon Smith disputes. Ms. Hunstman University of Chicago Law have joined the firm. Ms. Dye works in the firm’s Tulsa School. Mr. Cowan practices will be practicing civil rights office, where she focuses on in the fields of commercial lit- litigation, business litigation, commercial and appellate liti- igation and arbitration. He probate and employment law. gation. Mr. Tripp is located in earned his J.D. with highest She earned her J.D. at the TU the firm’s Oklahoma City honors from TU in 2004, then College of Law in 2010. Ms. office and is a member of the attained a BCL with distinc- Smith will focus her practice firm’s commercial transac- tion for dissertation from the on family law, mediation, tions and financial institu- University of Oxford in 2005. estate planning and social tions practice group and chair security disability. She is a he Tulsa firm McDaniel of the firm’s business and 2010 graduate of the TU Longwell Acord PLLC information technology out- T College of Law. announces Andrew M. Con- sourcing practice group, way has joined the firm as cAfee & Taft announces which is his primary area an associate attorney. He Barrett J. Knudsen of of practice. M graduated cum laude with a Oklahoma City has joined the ableGotwals announces B.S.B.A. in business manage- firm’s Aviation Law Group. Gformer Assistant Attor- ment from TU in 2006 and

1878 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 with honors from the TU oerner, Saunders, Daniel College of Law in 2009. D& Anderson LLP announces the addition of he Tulsa firm of Glass- Tulsa attorneys Stuart D. Wilkin PC announces T Campbell, David H. Herrold, Michael S. Linscott has David J. Hyman and Ron W. joined the firm of counsel. Mr. Little to the firm. Mr. Camp- Linscott’s practice is concen- bell has more than 25 years of trated in the areas of business ary Payne, chief adminis- practice in transportation law, transactions, commercial liti- trative law judge for the sports and entertainment law, G gation, corporate, real estate Oklahoma State Department of public utility litigation and and insurance-related mat- Health, presented a workshop Indian gaming law. He is a ters. He is also experienced in in July on opinion writing at member of the Transportation securities disputes and con- the National Association of Lawyers Association and struction litigation. He holds Unemployment Insurance Trucking Industry Defense a B.S. from OU, and he Appellate Boards (NAUIAB) Association. Mr. Herrold’s earned his J.D. from TU Annual Training Conference, 15-year body of practice with highest honors in 1991. held this year in Oklahoma emphasizes commercial litiga- City. he Law Office of Cindy tion, banking, lender liability TAllen PLLC announces and commercial law, creditor’s att Stump of Oklahoma that Julia C. Mills of Norman rights and bankruptcy law. MCity spoke on the has joined the firm as associ- Mr. Hyman practices exten- subject of green card funda- ate counsel. She is a 2010 sively in the area of healthcare mentals at the American graduate of the OU College of law, and he is a frequent lec- Immigration Lawyer’s Asso- Law. Her practice will focus turer who has served as an ciation Annual Conference on family law, estate planning adjunct professor at the TU in San Diego in June. and bankruptcy. She may College of Law for more than elli Stump of Oklahoma be contacted on the web at eight years. He is also a mem- KCity recently spoke at the www.normanokattorney.com. ber of the American Health American Immigration Law- Lawyers Association. Mr. Lit- yers Association Texas Chap- arroll, Ward & Roberts tle’s nearly 20 years of exper- PLLC announces the ter Spring Conference on C tise centers on family law Immigration Law. Ms. Stump firm’s new name following litigation in Oklahoma and admission of Broken Arrow spoke on citizenship eligibili- Texas, a subject on which he ty issues. attorney Loretta “Lori” K. has published numerous arti- Roberts as a member. She cles. He re-ceived the Ameri- Douglas Stump of Okla- will focus on corporate mat- can College of Trial Lawyers T . homa City was recently ters as well as business and Medals for Excellence in a speaker at the 8th Annual commercial transactions. She Advocacy and Outstanding Federal Bar Association has practiced law for 15 Advocacy Skills. Immigration Law Seminar in years, most recently eight Memphis, Tenn. Mr. Stump years with Drummond Law ulsa firm Drummond Law chaired a panel with officials PLLC. She may be reached at TPLLC announces Don from the U.S. Department of [email protected] or Lepp has joined the firm. Mr. State on the topic of “Waivers (918) 906-3199. She is a 1996 Lepp received his B.B.A. from of Inadmissibility and cum laude graduate of the OU in 1990, and his J.D. from Removal at Consular Posts.” TU College of Law. the University of Michigan He also spoke on the outlook School of Law in 1993. His A. “Murph” Shelby has for immigration reform and practice will focus on com- administration priorities. M . joined Ute Energy LLC mercial litigation and all in Denver as general counsel. aspects of banking law. He is usan Dennehy Conrad, He may be contacted at also a member of the State Sassistant general counsel the company’s offices at Bar of Michigan. for the Oklahoma Corpora- 1875 Lawrence Street, Suite tion Commission Oil & Gas 200, Denver, Colo., 80202; Conservation Division, was (720) 420-3242. recently the guest speaker for the Capital Association Divi-

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1879 sion Order Analysts. Ms. of America annual meeting in an OBA member and you’ve Conrad’s presentation was on Chicago. The presentation, moved, become a partner, hired the commission’s new rules titled, “Ethics Online: Tech- an associate, taken on a partner, for horizontal drilling. nology and Social Media received a promotion or an Concerns for the Modern award, or given a talk or speech on Cartledge of Tulsa in Lawyer,” educated attending with statewide or national May was a keynote speaker J attorneys and corporate rep- stature, we’d like to hear from at a CLE seminar in Tulsa resentatives regarding ethical you. Sections, committees, and titled “The Fundamentals of minefields surrounding social county bar associations are Construction Contracts: media discovery and new encouraged to submit short sto- Understanding the Issues.” ries about upcoming or recent technology being used by He lectured on the topic, activities. Honors bestowed by lawyers and law firms. “You Owe Me – Indemnity other publications (e.g., Super Agreements in Construction eonard Court of Oklaho- Lawyers, Best Lawyers, etc.) Contracts.” Lma City presented a pro- will not be accepted as an- gram at the Society of Human nouncements (Oklahoma-based itchell Cohen, general Resource Management annu- publications are the exception.) counsel at the Illinois M al conference and exposition Information selected for pub- Department of Natural in Las Vegas in June. He lication is printed at no cost, Resources, recently presented illustrated the best methods subject to editing, and printed “Ethical Considerations Dur- for implementing employee as space permits. ing Parallel Proceedings in evaluations and documenta- Submit news items via email to: Conservation Law” at the Fish tion and what happens in a Lori Rasmussen and Wildlife Management trial when proper documenta- Communications Dept. Issues Seminar for the Nation- tion has not been completed. Oklahoma Bar Association al Attorneys Training & (405) 416-7017 Research Institute in Denver. How to place an announce- [email protected] ment: The Oklahoma Bar Journal klahoma City lawyer welcomes short articles or news Articles for the Sept. 3 OCarrie L. Palmer recently items about OBA members and issue must be received by spoke at the Trial Attorneys upcoming meetings. If you are Aug. 8. IN MEMORIAM

ohn Andrew Akey of Tulsa from Lawton High School in graduate of the OU College of Jdied May 22. He was born 1955. He earned his J.D. from Law. He spent most of his Aug. 14, 1952, in Aurora, Ill. the OU College of Law in professional career as a legal After graduating high school 1962. He served in the U.S. officer in the U.S. Air Force, in Illinois, he moved to Tulsa Army, earning the rank of attaining the rank of colonel. and attended TU, where he captain. He practiced private- He was an active and lifelong earned his undergraduate ly as an attorney, having member of the United Meth- degree in 1976. He earned a spent his earlier professional odist Church, serving in J.D. from the TU College of career as an assistant admin- many churches across the Law in 1983. He was engaged istrator of continuing educa- country and around the in the private practice of law tion at OU. He also wrote world wherever his military until his death. He was a manuals for the U.S. Postal travels took him. Memorial member of Tulsa Opera, The- Service and served as an contributions may be made to ater of Tulsa and the Gilbert editor for the OU Press. Alzheimer’s Association. Sullivan Society of Tulsa Uni- He was an avid follower rederick L. Boss Jr. died versity. He also enjoyed golf- of OU sports. ing, fishing and following FJune 7. He was born Oct. lifton D. Blanks He Chicago and TU sports. of Okla- 15, 1936, in Muskogee. Choma City died July 13. served as second lieutenant enneth Terry “K.T.” He was born Aug. 14, 1929, in in the U.S. Army National KAnderson of Lawton died McAlester. He held an under- Guard 45th Infantry Divi- June 3. He was born at Fort graduate degree in geology sion and was honorably dis- Sill Aug. 23, 1937, graduating from OU, and was a 1954 charged in 1961. He graduat-

1880 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 ed with a B.B.A. from the 1966. He went on to serve as Air Force during the Korean University of Arkansas, and associate district judge for the Conflict. He later earned a he received his J.D. from the 12th Judicial District of Okla- bachelor’s degree from OU, TU College of Law in 1970. homa in 1972 until his retire- and went on to receive his He was a member of the ment in 1991. He was a mem- J.D. from OCU School of Law Tulsa County Bar Association ber of First Baptist Church of in 1994. He worked for several as well as the Kappa Alpha Claremore for more than 40 years as an estate tax attorney Order (University of Arkan- years. In retirement he for the IRS, retiring to practice sas), the Delta Theta Phi enjoyed traveling with family, law privately from his home. Legal Fraternity, the Moose watching the Cardinals play He was an active member of Lodge and the Tulsa Ski Club. and tending to his garden. Wickline United Methodist Memorial contributions may Church, teaching Sunday ohn Mack Butler of Tulsa be made to First Baptist school and serving on many died July 6. He was born J Church Building Fund. committees. Memorial contri- Feb. 9, 1938, in Muskogee and butions may be made to his ynne Witt Drawdy graduated from Warner High of church or to Rose State Col- School. He earned a degree in LChoctaw died June 24. lege Foundation (David and After mathematics from NSU. She was born in Atlanta on JoAnne Fox Scholarship Fund). completing Naval Officer April 28, 1960, and earned her Candidate School, he served J.D. in 1994 from OCU School elly L. Gage-Hogan of in the U.S. Navy aboard the of Law. She was the assistant KEdmond died Dec. 29, USS Enterprise from 1961 to vice president in the compli- 2010. She was born Nov. 4, 1963. He earned a J.D. from ance department at Vericrest 1963, in Oklahoma City. She TU College of Law in 1968. Financial. One of her cher- attended SWOSU and the OU During his career as an attor- ished quotes was, “Real love College of Law, earning a J.D. ney, he served as an assistant stories never have endings.” in 1990. She was a member of district attorney in Cherokee, Memorial contributions may Henderson Hills Baptist Wagoner, Sequoyah and be made to Hospice of Okla- Church and enjoyed spending Adair counties. He also was homa County Foundation time with her family. Memo- a judge in Tahlequah and Department. rial contributions may be went on to practice as a trial made to the Oklahoma Chris- aul M. Fister of Oklahoma lawyer. The later part of his tian Schools Foundation City died May 19. He was 42-year career in law focused P Scholarship Fund or to Proj- born Aug. 23, 1934, in Ber- on his passion for civil rights, ect 66 of Arcadia. wyn, Ill. He served in the defending the underprivi- U.S. Coast Guard. After leav- etired Court of Civil leged in the Tulsa area and ing the service, he attended Appeals Judge Stewart other parts of Northeastern R OU where he received his B.S. McCallum Hunter died July Oklahoma. in geophysics, and went on to 2. He was born Nov. 14, 1927, etired Judge Edwin earn a J.D. from the OCU in White Plains, NY. He enlist- RCarden of Claremore School of Law. He worked for ed in the U.S. Navy in July died July 11. He was born in the Securities and Exchange 1945, serving until 1946, and Hot Springs, Ark., on April Commission before practicing later returning to military 14, 1931, and grew up near privately. He loved playing service during the Korean Benton, Ark. He served in the tennis and handball, coaching Conflict, serving as a pla- U.S. Air Force with the 80th baseball and officiating bas- toon leader with the 45th Fighter Bomber Squadron ketball. He attended Cross- Infantry Division. He during the Korean Conflict. ings Community Church. attended Oklahoma A&M, After his service he relocated Memorial donations may later earning his J.D. from to Tulsa and worked in avia- be made to the Alzheimer’s OCU School of Law in 1962. tion by day and studied law Association or the Parkin- He practiced privately until at night. He received his son’s Association. 1968, when he received a bachelor’s and J.D. degrees direct commission in the U.S. avid Neal Fox of Mid- from TU. He practiced law in Army JAG Corps, retiring as west City died June 14. Claremore before becoming D a military appellate judge in He was born Oct. 9, 1930. He assistant district attorney in 1985. In 1969, he was served four years in the U.S.

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1881 appointed Oklahoma County Marshall, Ark. He served in by the Oklahoma County special judge, and was later the U.S. Army Air Force dur- Public Defender’s Office, the elected associate district ing World War II where he first female attorney hired by judge. He was appointed to was an aircraft engineering the U.S. Attorney’s Office for the Oklahoma Court of Civil officer and a captain for the the Western District of Okla- Appeals in 1983, retiring in 43rd Bomber Group. He was homa and the first female 1996. He was honored three a decorated soldier, earning judge elected in Kingfisher times with the Outstanding the Asiatic Pacific Theater County. She was an advocate Judge Award by the Oklaho- Service Medal and the Philip- for women and children as ma County Bar Association. pine Liberation Ribbon with well as an active volunteer in one bronze star. After dis- her church and community. ichard Daniel Koljack of charge, he achieved the rank She was a member of numer- Tulsa died May 11. He R of major through the Air ous civic organizations was born May 10, 1958, in Force Reserves. He earned including Toastmasters, Rota- Chicago. He attended TU, his J.D. in 1953 from the TU ry, Lion’s Club, Elk’s Lodge receiving a bachelor’s degree College of Law. He moved to and Lyric Theater. She was in 1981 and a law degree in Midland, Texas, where he built an avid quilter, and one of 1985. He joined the Tulsa law his career as an oil and gas her greatest pleasures was firm of GableGotwals and operator, ultimately acquiring driving her old Model A served the firm in many vol- and becoming president of Ford, “Nellie,” in her local unteer capacities, including Taurus Minerals, where he Christmas and Fourth of the board of directors. He was attended to business opera- July parades. a member of the ABA and the tions until his death. Memorial Tulsa County Bar Association, ames Crabtree Reed of contributions may be made to and he served his community Miami died July 2. He was Hospice Midland. J on the board of directors of born Oct. 17, 1919, in Kansas Jenks Public Schools Founda- uane Miller of Yukon City, Mo., and lived nearly all tion, the Community Service Ddied July 23. He was his life in Miami and Ottawa Council of Tulsa and the born Feb. 2, 1941, and gradu- County, graduating from United Way. He loved sports ated from the OU College of Miami Junior College in 1940. and coached young athletes. Law in 1965. He entered the He entered in the U.S. Army He was an active member of U.S. Navy Jag Corps, retiring Air Corps in 1941, and was St. Patrick’s Episcopal Church as a lieutenant commander. discharged as a first lieuten- in Broken Arrow. Memorial He was an attorney in private ant in 1946. He graduated contributions may be made to practice in Yukon for several from the OU College of Law his church, the Salvation years, prior to that, he was an in 1948. He began practicing Army or Clarehouse Hospice. attorney at the Oklahoma law in Miami and was elected County District Attorney’s county attorney in 1950, and enneth Linn of Blanchard Office and the U.S. Attorney’s was later elected the first dis- died July 20. He was born K Office. trict attorney for the area. He Jan. 25, 1950, and graduated also served several years as from U.S. Grant High School etired Kingfisher County Ottawa County Election in 1968. He served for 20 Associate District Judge R Board secretary. He served on years as a police officer in Mary Sue “Susie” Pritchett many OBA committees, and Oklahoma City. He graduated died June 22. She was born in 1977 was appointed to the from OCU School of Law in Oct. 6, 1941, in Houston, Board of Bar Examiners, 1990 and began working for graduating from Henryetta where he served for 17 years. the Oklahoma County District High School in 1959. She He retired from his private Attorney’s Office, later work- earned a B.S. in education law practice in 1994. ing for the Department of from OU in 1962, and a mas- Public Safety. In his spare ter’s degree from UCO in ob Rudkin of Edmond time he enjoyed hunting 1964. After teaching for a few Bdied July 13. He was born and fishing. years, she earned a J.D. from Nov. 5, 1930. He was a 1957 OU College of Law in 1971. graduate of the OCU School ohn Q. McCabe of Mid- She began her legal career as of Law. He was devoted to land, Texas, died May 24. J the first female attorney hired his community, serving as He was born Jan. 4, 1920, in

1882 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 both former mayor and city served in many capacities in Foundation for Parkinson’s judge. He also served 25 the area of law including disease research. years on the Edmond Public public defender and Wakita arry Joseph Smith of Schools Board of Education. city judge. She served on Owasso died May 9. He Memorial contributions may many boards in the Enid L was born in Fort Scott, Kan., be made to Boys Ranch Town community, including Gar- July 8, 1941. He attended Fort of Edmond. field County Excise Board, Scott Community College and Foster Care Review, American ames Richard “Jim” Ryan Pittsburg State University Cancer Society, Garfield of Tulsa died March 7. He prior to earning his degree J County Youth Service Shelter, was born June 28, 1923, in from Texas Christian Univer- and Pastoral Care Associa- Ponca City. He attended OU sity in 1964. He then attended tion. She was the first recipi- and received his bachelor’s the TU College of Law, earn- ent of the Ann Overstreet degree in 1948. He served in ing his J.D. in 1969. He Pro-bono Award in 2007. She the U.S. Merchant Marines worked in Kansas and Fort volunteered legal counseling as a ship’s purser and phar- Wayne, Ind., for the Western to domestic violence victims macist’s mate during World Insurance Company, relocat- at the YWCA and hospice War II. He attended law ing to Tulsa in 1996, where he clients unable to afford legal school at the University of established a solo law prac- services. She was a member Pennsylvania, earning his tice and joined Asbury United of Central Christian Church. bachelor of law degree in Methodist Church. He was Memorial contributions may 1951. Following graduation, also a member of the Kansas be made through the funeral he served as law clerk to Bar Association. He was home to YWCA Women’s Judge Herbert F. Goodrich of active in the Parkinson’s Crisis Center or Youth and the U.S. Court of Appeals for Action Network, and memo- Family Services. the Third Circuit and then as rial contributions may be law clerk to Justice Harold H. erbert Dwight Smith of made to that organization. Burton of the U.S. Supreme Alva died July 1. He was H D. Spradlin of San Luis Court. He returned to Tulsa as born Feb. 10, 1926, and grad- . Obispo, Calif., died July an attorney with the firm of uated from Alva High School. G 24. He was born Aug. 31, Conner & Winters. He was an He served in the U.S. Army 1920, in Pauls Valley, and adviser to the Oklahoma Leg- during World War II, was received a bachelor’s degree islature and a member of the captured in Germany and in education from OU. He ABA. He served as president spent more than three served in the Army Air Forc- of the Tulsa County Bar Asso- months as a prisoner of war. es in China during World ciation, was an adjunct profes- He returned to Oklahoma War II. After earning a law sor of law at the TU College of after the war, earning a chem- degree from the OU College Law and authored a number ical engineering degree from of Law in 1948, he became an of journal articles. He retired OU in 1950. He served one attorney for Phillips Petro- from active law practice in term in the Oklahoma House leum Co. and then became 2000. He was a past member of Representatives before head of Phillips’ legal depart- of the Young Men’s Club, the enrolling in the OU College of ment in Caracas, Venezuela. Nicholas Club auxiliary of the Law, graduating in 1958. He His success as an oilman Tulsa Boys Home and the began practicing law in Alva allowed him to retire in 1960. Tulsa Club. that year, and over the course He directed John F. Kenne- of his career served as city hera Shirley of Enid died dy’s Oklahoma campaign for attorney and Woods County July 15. She was born Feb. president. He ran unsuccess- S acting attorney and acting 28, 1956, in Denver and grew fully for mayor of Oklahoma judge. He was an active mem- up in Colorado and Iowa. She City and earned a master’s ber of the Alva Presbyterian graduated from Phillips Uni- degree in Latin American Church, and was also active versity in 1978 with a bache- studies from the University of in several civic organizations lor’s degree in English and Miami in 1965. It was shortly and American Legion. Memo- earned a J.D. from Drake thereafter that Mr. Spradlin rial contributions may be University Law School in Des embarked on a career in show made to his church or the Moines, Iowa, in 1982. She business, moving with his Oklahoma Medical Research

Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1883 family to Los Angeles. He ary Swimley of Ripley the OU College of Law in achieved success as a charac- Gdied June 13. He was 1965. He served in the JAG ter actor in numerous films, born March 8, 1946, in Moore- Corps at the Pentagon during and is best remembered for land and graduated from the late 1960s. After returning major supporting roles in Norman High School. He to Oklahoma City, he was a “The Godfather: Part II” and earned a degree in physics trial attorney for more than 20 “Apocalypse Now.” from OU in 1967, later return- years with the firm of McKin- ing to the OU College of Law ney, Stringer and Webster. He rthur B. Stevener Jr. of where he received his J.D. in was a member of the ABA, El Reno died March 29. A 1975. He practiced law in Cal- Oklahoma County Bar Associ- He was born Feb. 10, 1942, in ifornia for five years before ation, Federation of Insurance New Orleans, La. and lived in returning to Oklahoma to Counsel, American College of Texas and California before practice law in Stillwater. He Trial Lawyers and the Oklaho- relocating to El Reno in 1958. worked at Legal Aid and then ma Association of Defense He was a graduate of OSU as a sole practitioner, retiring Counsel. He retired from the and OCU School of Law, in 2007. He served on the practice of law in 1993 and earning a J.D in 1970. He Legal Aid board of directors pursued his interests in hunt- practiced privately for 41 for many years. He was a ing, competitive shooting, years and was a member of licensed pilot and an active training his dog for field tri- Wesley United Methodist member of the Payne County als, handicapping horse races, Church. He was involved in a Experimental Aircraft Associ- golf and travel. number of civic and commu- ation. Memorial contributions eil Anthony Whitting- nity organizations, and he can be made to Legal Aid Ser- served in the U.S. National ton vices of Oklahoma, Inc. N of Atoka died Jan. 3. Guard. He also enjoyed golf- He was born Jan. 15, 1946, in ing, traveling and supporting enneth Raymond Web- Ada and graduated from Ada the OSU Cowboys. Memorial Kster of Edmond died June High School. He earned his contributions may be made to 27. He was born in Enid on J.D. from the OU College of El Reno Mobile Meals or May 14, 1941, graduating Law in 1971. He was engaged Friends of the Library at from Cascia Hall High School in the private practice of law, Carnegie Library. in Tulsa. He earned his and he was also a former undergraduate degree from associate district attorney. He Notre Dame in 1962 and was a member of the Atoka received his law degree from Lions Club.

Oklahoma Bar Journal Editorial Calendar

n October: n November: 2011 Labor and Military Law n September: Employment Law Editor: Dietmar Caudle Bar Convention Editor: January J. Windrix [email protected] Editor: Carol Manning [email protected] Deadline: Aug. 1, 2011 Deadline: May 1, 2011 n December: Ethics & Professional Responsibility If you would like to write an article on Editor: Melissa DeLacerda [email protected] these topics, contact the editor. Deadline: Aug. 1, 2011

1884 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 CLASSIFIED ADS

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Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1885 OFFICE SPACE POSITIONS AVAILABLE

VIRTUAL OFFICE – NICHOLS HILLS BUSINESS AD- TULSA LAW FIRM SEEKS LEGAL ASSISTANT to join DRESS, mail and package distribution, personalized its busy social security disability practice. Position will telephone answering, receptionist to greet your clients, involve high-volume client contact and requires excel- 24-hour voicemail, five (5) hours of conference room lent interpersonal skills as well as organization and use per month. Additional services available. Packages attention to detail. Experience in social security dis- start at $235/month. 405-242-6440. ability benefits is preferred. To apply, send cover letter and resume to: [email protected]. POSITIONS AVAILABLE FENTON FENTON SMITH RENEAU & MOON is an VERY BUSY OKC PERSONAL INJURY FIRM is ac- AV-rated defense firm seeking an attorney with 0-3 cepting resumes for an associate attorney. Must be a years experience to assist in its civil litigation depart- people person, very aggressive, eager to learn and ment. Please submit a resume, writing sample and hungry. 2-5 years general litigation experience is a transcript to the Recruiting Coordinator, 211 N. Robin- must. Applicant must be able to immediately assume son, Ste. 800N, Oklahoma City, OK 73102. responsibilities in handling all aspects of a personal HEROUX & HELTON PLLC seeks an experienced tax injury case. Must also be proficient at brief writing. and estate planning attorney for the firm’s Tulsa Small base plus commission. Earning potential is huge office. License to practice in Texas preferred but for the right individual. Please email resume and cov- not required. Submit cover letter and resume to joy@ er letter to [email protected]. herouxhelton.com. THE GRAND RIVER DAM AUTHORITY (GRDA) is seeking a highly motivated individual to serve as an ASSOCIATE WITH 4-8 YEARS CIVIL DEFENSE Asst. General Counsel. Position is located in Vinita, litigation experience needed by AV-rated Tulsa firm. Oklahoma with some travel necessary. 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1886 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011 POSITIONS AVAILABLE CLASSIFIED INFORMATION

AV-RATED TULSA BUSINESS AND REAL ESTATE CLASSIFIED RATES: One dollar per word per inser- LAW FIRM seeks associate attorney with 3-5 years expe- tion. Minimum charge $35. Add $15 surcharge per is- rience. Primary responsibilities include research, brief sue for blind box advertisements to cover forward- writing and discovery matters. Compensation commen- ing of replies. Blind box word count must include “Box surate with experience and skills. Submit resume and ____ , Oklahoma Bar Association, P.O. Box 53036, Okla- references to [email protected]. homa City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and rates. POSITIONS WANTED DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in writing stating number FORMER LICENSED ATTORNEY WITH OVER 30 of times to be published to: YEARS civil practice experience seeks position with Jeff Kelton, Oklahoma Bar Association law firm or corporation. Contact Jim Golden at P.O. Box 53036, Oklahoma City, OK 73152 [email protected] or (405) 209-0110. E-mail: [email protected] Publication and contents of any advertisement is not 25+ YEAR AV-RATED ATTORNEY, recently retired for- to be deemed an endorsement of the views expressed mer general counsel for public and private companies therein, nor shall the publication of any advertisement with extensive hands-on experience in domestic and in- be considered an endorsement of the procedure or ser- ternational corporate, M&A, commercial transactions, vice involved. All placement notices must be clearly non- HR, compliance, FCPA, Export Control, and IP, who discriminatory. misses the opportunity to be of service using my exper- tise, is seeking contract work from firms or in-house counsel. Submit inquiries to [email protected].

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Vol. 82 — No. 20 — 8/6/2011 The Oklahoma Bar Journal 1887 THE BACK PAGE

My First Jury Trial By Rex Travis

My career as a trial He said: “Well, I’m lawyer began a long time afraid if you don’t settle ago somewhat traumati- it, I may have to direct a cally. My law school verdict against you on the classmate, B.J. Brockett, basis of contributory neg- knew I wanted to be a ligence.” I gulped and trial lawyer. His brother said, “But judge, you can’t had the misfortune to direct a verdict on con- have a car wreck during tributory negligence our last semester in because the Oklahoma law school. Constitution says contrib- B.J. referred his broth- utory negligence must er to me to handle what always be for jury.” He became a fairly serious responded, “Well, ordi- injury case. The client narily that’s true but it (B.J’s brother) was south- was raining and your bound on Classen Boule- guy shouldn’t have The client ended up going stopped so suddenly.” vard in Oklahoma City. It to Santa Fe to live and work was raining. The client saw a and had surgery there for his Sort of shell-shocked, I pretty girl at a bus stop and injuries. I ended up flying to wandered out into the hall. (being a gentleman) stopped Albuquerque and driving up Then a miracle occurred. to offer her a ride. to Santa Fe to depose the sur- The two defense counsel He was almost immediate- geon. Still, no meaningful approached me in the hall ly struck from the rear by a offers of settlement were and asked what it would take car, which was struck and forthcoming. to settle the case. I soon got with my client for some knocked into him a second We all appeared for trial time by a van belonging to authority and we settled before Judge Glenn O. Mor- the case. the Oklahoma City Blood ris, then an ancient-seeming Bank. The drivers of both of (to me) judge. At the first After the judge dismissed the rear cars got tickets. My recess, he said to me “Young the jury, I asked defense client did not. man.” (I told you this was a counsel, “Why did you wait Negotiations before the long time ago!) “I need to see until we were in trial to try to suit was filed did not pro- you in my chambers.” In settle the case?” They said duce much result. The insur- chambers he said “Young “Well, since it’s all over, I ance companies were evi- man, why have you not set- guess we can tell you. During dently not frightened by a tled this case?” Somewhat that first recess, the judge lawyer with the ink not yet unnerved, I said “Well, it’s called us in and told us if we dry on his Supreme Court because they haven’t offered didn’t settle, he was going to certificate. I filed suit in the me anything. Why do direct a verdict against us.” Oklahoma County District you ask?” Mr. Travis practices in Court. Oklahoma City.

1888 The Oklahoma Bar Journal Vol. 82 — No. 20 — 8/6/2011