Opinion:Swiney v. Villanueva, 2021 OK CIV APP 37
Subject matter:Family Law
Date Decided:July 30, 2021; Mandate Issued: September 30, 2021
Trial Court:District Court of Tulsa County; Judge Evans
Route to this Court:Appeal of an order denying motion to modify visitation. 
Facts:Father (Petitioner/Appellee) has had supervised visitation of the parties’ child since the divorce trial in 2016. The divorce court awarded the mother full custody and made extensive findings regarding the father’s behavior and living conditions. Within a few weeks of the trial, Father sought modification of visitation to unsupervised visitation. Nearly four years of litigation ensued until a two-day trial on modification was finally held in early 2020. The trial court denied the Father’s request to allow unsupervised visitation, holding that the Father did not sustain his burden of proof under the Gibbons standard. Father appealed
Standard of Review:Child custody and visitation matters are of equitable cognizance and the Court reviews for abuse of discretion. In this matter, however, the issue raised by Father is whether the trial court appropriately applied the Gibbons standard for modification of custody to his request for modification of visitation. The authority for the trial court to modify child custody or visitation orders is found in 43 O.S. § 112. Questions of statutory interpretation and implementation are reviewed de novo
Analysis:In Gibbons v. Gibbons, 1968 OK 77, the Court, after reviewing numerous decisions, articulated the burden of proof required when a parent seeks to modify a child custody order. The Court stated that:the burden of proof is upon the parent asking that custody be changed from the other parent to make it appear: (a) that, since the making of the order sought to be modified, there has been a permanent, substantial and material change of conditions which directly affect the best interests of the minor child, and (b) that, as a result of such change in conditions, the minor child would be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered.While the Gibbons test is well-established when the issue involved is a change of custody from one parent to the other, the Oklahoma Supreme Court has never required that the Gibbons test be utilized in a case involving a change in visitation schedule. While there may be circumstances where the change in the visitation arrangements would be so substantial that some form of the Gibbons test would be appropriate, it was error, as a matter of law, for the trial court to apply the Gibbons test in this case. 
“The question here is whether father has corrected his living situation and improved his mental health to the extent that he can have a normal visitation schedule. The matter is remanded for a hearing for the trial court to consider the best interests of the child and, in light of the particular circumstances of this case, to determine whether father has corrected the conditions that led to the imposition of his supervised visitation schedule.”
Outcome:Affirmed in Part, Reversed in Part, and Remanded. 
Vote:Prince, J. (author), Goree, P.J. and Mitchell, J, concur.
Other: Certiorari not sought. The trial court also modified child support based on the parties’ stipulation and found the Father guilty of contempt for failure to pay child support. Those findings were affirmed. The OCOCA addressed a similar issue recently in Robinson v. Robinson, 2020 OK CIV APP 68 (OCOCA found the Gibbons test didn’t apply to a father seeking relatively minor modification to a visitation schedule after a good-faith relocation rendering the existing visitation schedule impractical).