The bond between a grandparent and a grandchild can be immensely strong. The thought of their grandchild not having the best life possible can be unthinkable. There are certain situations where the grandparents think it is in the child’s best interest to live with them and be awarded visitation, joint custody or sole custody. 
We review the requirements that must be met for grandparents to ask their child custody attorney to petition for child custody and how Oklahoma judges consider the child’s best interest when awarding child custody to the grandparents.
Not Automatic
First, your child custody attorney will tell you that grandparent rights are not automatic. There are four circumstances that allow the grandparents to file for child custody and be heard before a judge.
These include the following:
- The grandchild is not living in an intact nuclear family.
- Visitation is in the best interest of the child.
- Parents of the grandchild are unfit.
- If visitation is not granted, the child would suffer harm as a result.
Each circumstance is interpreted a certain way and explained at length in Oklahoma statutes Title 43 § 109.4.
Nuclear Family
Divorce
The Oklahoma statute states that a nuclear family is two parents married and living under the same roof as the child. This is disrupted when a divorce, alimony, or annulment action is pending.
The grandparent must show that the relationship with their grandchild predates the above proceedings. However, if the parents are already divorced, even if there is a new step-parent, the grandparent does not have to show a pre-existing relationship prior to the divorce action.
Death
The nuclear family is also disrupted when one of the child’s parents dies. However, the parent who died must have been a child of the grandparent that is bringing forth the action. For example, the maternal grandmother can only bring an action if the mother of the child dies. Similarly, if the paternal parent dies, then the paternal grandparent may bring an action.
Residence
Another disruption of the nuclear family is when the child does not physically reside with the parents or if someone else has been given legal custody of the child.
The reason the child is not living with one or both parents can be caused by incarceration, one parent deserting the other parent and child, or parental rights have been terminated (this is typical when a new step-parent is present).
Best Interest Considerations
Once a grandparent meets the requirements to file for child custody, they must show that it is in the best interest of their grandchild to grant them custody.
The following considerations are made by the judge when determining custody:
- Child’s preference
- Importance of continuing grandparent relationship to the child
- Willingness of the grandparent to encourage a relationship with the child’s parents
- Nature of grandparent-grandchild relationship, for example: affection, emotional ties, care, duration of relationship, and quality of relationship
- Motivation of grandparents in asking for custody and the motivation of the parents in opposing custody
- Mental and physical health of both parties
- Character and behavior of other people that live with or frequently visit bother the grandparent’s and parent’s home
- How disruptive the change in custody or visitation might be
Parental Inadequacy
There are four circumstances where a parent may be found to be inadequate or unfit to be a parent. These situations are outlined below:
- Alcohol or drug dependency without treatment or unsuccessful treatment
- Violent behavior in the home or a history of domestic abuse
- Mental illness that impairs judgment, affects perception of reality, or inability to control their behavior
- Inability to properly care for their child that has caused actual harm to the child, including parental indifference that could put the child in risking situations.
Potential Harm
If the grandparent’s child custody attorney cannot prove the parents are unfit, or that there has been a disruption in the family unit, they might also claim the child will suffer actual or potential harm from custody to the grandparents being denied.
Your child custody attorney must show clear and convincing evidence that without the grandparent’s intervention – in the form of visitation or custody – the child would suffer actual or potential harm. In addition, your child custody attorney must also prove that the parents are not acting in the best interest of their child.
This is a high standard of proof that your child custody attorney must meet. It is important to work with an attorney who knows what courts expect with regard to proof. In most cases, a local attorney familiar with the local family court judges’ approach to settling custody disputes offers insight mere understanding of written statutes and case law may not offer.
Free Consultation with a Tulsa Child Custody Attorney
Hiring a family child custody attorney when filing a child custody modification for grandparent custody or visitation will ensure the process is expertly conducted and your interests are well represented.
A child custody attorney is the best resource when a you must show that it is in your grandchild’s best interest to have visitation or have the grandparent be awarded custody.
Contact an experienced Tulsa child custody attorney when you need to go through the Oklahoma grandparent child custody process.
For a free confidential consultation, call Divorce of Tulsa Law Office at: 918-924-5526.
