Representing Grandparents in a Divorce

Third-Party Custody and Guardianship

There is little difference, as a practical matter, between grandparent custody and grandparent guardianship. Third-party custody and guardianship of a minor child are temporary in nature. Oklahoma law currently defines all grandparent custody as “temporary” custody.

Both guardianship and third-party custody cases require a finding that both of the grandchild’s parents have consented to the grandparent’s request, or that the contesting parent is “affirmatively unfit”.  The burden to prove “unfitness” is heavy – the fact that a grandparent can provide a more stable home, or has historically provided the primary financial/emotional support for the grandchild, is usually not enough.

The results of the 2010 and 2012 United States Census Report indicate that grandparents and other family members, as “shadow parents”, are raising approximately 5% to 6% of all children in Oklahoma. The grandparent or family member is forced to choose between two difficult options.

One option is to quietly bear all responsibility (emotional and financial) for raising the child, subject to the parent’s whims and threats of withholding or taking the child out of the family member’s stable environment. The other option is to seek guardianship/third-party custody, bear the financial/legal costs of litigation, and risk losing access and time with the child. The majority of the published cases involving grandparent-parent custody disputes began when the grandparent went to the child support enforcement agency to request financial assistance for the grandchild.

The winds of change are coming, both nationally and in Oklahoma. The term “parent” is being re-defined, state by state, either by statute or judicial interpretation. The focus of the law is shifting from the child’s biological parent to the child’s “psychological” parent. The “psychological” parent is the adult with whom the child has bonded emotionally as a primary adult role model.

Oklahoma law currently offers specific family members a custody option, called “custody by abandonment”. The option is only available to grandparents and family members identified in the statute.

Other requirements include: (a) the parent “abandoned” the child for a period of more than one year; (b) the family member notified the other parent (if known) in writing that the primary/legal parent has abandoned the child; and (c) the family member provided the financial and emotional support for the child without requesting financial reimbursement.

Once a family member is awarded custody of the child on the basis of “abandonment”, the parent cannot use the easier “return” mechanism found in guardianship law.  The parent must now satisfy the three-part test (including a permanent, material, and substantial change of condition in the family member’s home that adversely affects the child) used for custody modifications between parents before the trial judge can even consider dissolving the family member custody order.

A specific exception to the “custody by abandonment” option exists. A parent can execute a Power of Attorney that grants parental rights and obligations to a third party for the maximum period of a year. The parent must subsequently execute a new Power of Attorney when the original Power of Attorney ends, or resume physical and financial responsibility for the child. If, however, the parent fails to execute the new Power of Attorney, the time period to qualify for “custody by abandonment” begins. 

Kinship Foster Parents

Oklahoma juvenile law embodies a strong policy favoring the reunification of a child with his/her parents after State intervention. A concurrent policy is that a child’s family members are generally the best option for the child’s temporary home environment until the problems that caused the State to intervene are resolved.

Grandparents and certain family members qualify as “kinship foster” parents. To be eligible, the grandparent or other family member must apply for kinship foster parent status. The applicant must be approved by the juvenile court as a kinship foster parent. The process includes a background check (criminal history), completion of requisite training and a home study, in addition to other requirements.

Once approved, the kinship foster parent must comply with ongoing regulations, appear at all of the juvenile court hearings, and cooperate with the juvenile authorities. Failure to comply with any of the requirements set out by the juvenile judge or the juvenile authorities can result in revocation of the kinship foster parent status, and allowing the State to remove the child from the family member’s home.

While kinship foster parents have certain rights relating to the child, the majority of the rights relate to notice of hearings and notice of proposed changes to the child’s placement. At all times the State retains legal custody of the child, until the parent’s rights have been terminated and the State approves an adoption, or the child is reunited with the parent. 

Grandparent Visitation

Oklahoma law on the issue of grandparent visitation has changed over the years. The change was in part due to a higher court’s finding that Oklahoma’s earlier grandparent visitation law was overreaching in when and how the visitation could be ordered.

Today, grandparents may receive court-ordered visitation if they fall within one of several fact patterns. The fact patterns are numerous, and include: (a) divorced or divorcing parents; (b) unmarried parents; (c) the grandparent’s adult child has died; and (d) the grandparent previously had physical custody of the child.

The judge is tasked with finding out what is in the grandchild’s best interests when granting third-party custody. The statute lists multiple factors that the judge must consider. Factors include: the length and strength of the relationship between the grandparent and grandchild; the emotional ties between the parent and the grandchild; and the motivation of the parent in denying visitation between the grandparent and grandchild.