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_MICHELLE K. SMITH
Attorney at Law, PLLC 1211 N Shartel, Suite 1005 Oklahoma City, Oklahoma 73103 (405) 759-2333 |
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Oklahoma Grandparent's Rights FAQ
FREQUENTLY ASKED OKLAHOMA GRANDPARENT'S RIGHTS QUESTIONS
Below are answers to questions frequently asked about grandparent's rights in Oklahoma. Please remember the answers and the information contained on this web site are based on general facts and might not apply to specific factual situations. In addition, this information is based on Oklahoma law. The laws of other states may differ substantially. The information contained on this web site is not meant to be specific legal advice. Always consult a lawyer to apply the law to your specific facts and state.
1. What rights might grandparents have in the state of Oklahoma?
The answer to the above question depends on what rights the grandparents are seeking and the status of the parents of the minor children. Depending on the circumstances, in Oklahoma grandparents may be granted visitation with their grandchildren, they may serve as foster parents for their grandchildren, they may seek guardianship of their grandchildren and they may seek to become the adoptive parents of their grandchildren.
2. Under what circumstances can a grandparent seek visitation?
The United States Supreme Court in Troxel v. Granville, 527 U.S. 1069, (1999), held that so long as a parent is fit the state normally should not interfere with or further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. Oklahoma law specifically states that under no circumstances shall any judge grant the right of visitation to any grandparent if the child is a member of an intact nuclear family and both parents of the child object to the granting of visitation. 43 Okl.St.Ann. § 109.4 (B).
There are times when grandparent visitation may be ordered. The circumstances in which a grandparent can be granted visitation rights are listed in the Oklahoma Grandparental Visitation statute, 43 Okl.St.Ann. § 109.4. The statute lists three requirements, all of which are mandatory, before a grandparent may be awarded visitation rights, namely:
A. The district court deems it to be in the best interest of the child pursuant to subsection E of this section, and
B. There is a showing of parental unfitness, or the grandparent has rebutted, by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child, and
C. The intact nuclear family has been disrupted in that one or more of the following conditions has occurred:
- an action for divorce, separate maintenance or annulment involving the grandchild's parents is pending before the court, and the grandparent had a preexisting relationship with the child that predates the filing of the action for divorce, separate maintenance or annulment,
- the grandchild's parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled,
- the grandchild's parent who is a child of the grandparent is deceased, and the grandparent had a preexisting relationship with the child that predates the death of the deceased parent unless the death of the mother was due to complications related to the birth of the child,
- except as otherwise provided in subsection C or D of this section, legal custody of the grandchild has been given to a person other than the grandchild's parent, or the grandchild does not reside in the home of a parent of the child,
- one of the grandchild's parents has had a felony conviction and been incarcerated in the Department of Corrections and the grandparent had a preexisting relationship with the child that predates the incarceration,
- grandparent had custody of the grandchild pursuant to Section 21.3 of this title, whether or not the grandparent had custody under a court order, and there exists a strong, continuous grandparental relationship between the grandparent and the child,
- the grandchild's parent has deserted the other parent for more than one (1) year and there exists a strong, continuous grandparental relationship between the grandparent and the child,
- except as otherwise provided in subsection D of this section, the grandchild's parents have never been married, are not residing in the same household and there exists a strong, continuous grandparental relationship between the grandparent and the child, or
- except as otherwise provided by subsection D of this section, the parental rights of one or both parents of the child have been terminated, and the court determines that there is a strong, continuous relationship between the child and the parent of the person whose parental rights have been terminated.
3. Can Court Ordered Grandparent Visitation be Modified or Terminated?
Yes, but the party seeking to modify or terminate the visitation must file a Motion to Modify in the District Court. Additionally, if the original grandparent visitation was pursuant to an Agreed Visitation Order, then the party seeking to modify must show that there has been a change of circumstances and that the modification or termination of the visitation is in the child's best interest.
4. Can Grandparents Be Guardians of Their Grandchildren?
Yes. A guardianship can be necessary for a number of reasons including a parent's health, military duties which require the parent to be out of the country, school enrollment and parental unfitness. A guardianship can be granted with the agreement of the parents, and it can be granted over the objection of the parents if a guardianship would be in the best interest of the child. A guardianship can have long reaching effects and it is important to speak with an attorney before finalizing any guardianship.
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Michelle K. Smith
Attorney at Law, PLLC 1211 N Shartel, Suite 1005 Oklahoma City, OK 73103 Phone: (405) 759-2333 |