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Grandparent Visitation

There are a growing number of requests for Grandparent visitation and this may be due in part due to the increased number of divorces and broken marriages.  There are many grandparents that feel left out when their children get divorced and they lose the frequency of contact with their grandchildren as a result.

Grandparent visitation rights and the visitation rights of other nonparents did not exist more than 40 years ago. Visitation rights, until recently, only applied to a child's parents. Today, however, every state has created statutes to govern the visitation rights of grandparents and certain other nonparents, such as foster parents, caregivers or stepparents. These visitation laws grant grandparents and these nonparents the legal right to visit a child.

It should not be surprising that the issue of grandparent visitation rights is increasing in our courts and the laws vary from state to state. In Oklahoma the statute provides for three requirements be met for visitation rights to be awarded against the wishes of the parent.  43 § 109.4.

1.    The District Court must find that it is in the Best Interest of the Child. There are multiple factors included, one of which is the needs of and importance to the child for a continuing relationship with the grandparent and the age and reasonable preference of the child pursuant to the Oklahoma law. There are numerous other factors involved as well.

2.    Parental Unfitness or Harm or Potential Harm to the Child. This requirement must be met before grandparent visitation rights can be granted. There must be a showing of parental unfitness or unsuitability or a showing that the child would suffer harm or potential harm without granting the visitation rights to the grandparent.  The legislature has defined harm or potential harm to mean a showing that without court ordered visitation with the grandparent, the child’s emotional, mental, or physical well-being could reasonably or would be jeopardized.

Unfitness is found in our statutes, which includes drug or alcohol dependency which treatment was not sought, or was sought and unsuccessful.  It also includes domestic violence or abuse, mental illness that has impaired the judgment of the parent or a failure to provide the child with property care and support. There are more factors in this area as well.

3. The Final requirement includes a long list of circumstances from which one situation must exist.  The list includes the parents are divorced, separated or the marriage was annulled. The grandchild’s parent who is the child of the grandparent is deceased. The grandchild’s parent has deserted the other parent for more than one (1) year, and there exists a strong and continuous grandparental relationship between the grandparent and the child.  There are several other factors that may apply as well, these are just a few. 

There are special rules for children born out of wedlock or parents rights that have been terminated.

The Burden of Proof is on the petitioning grandparent and it is very high. This type of matter can be very difficult on all members of a family and should be entered into thoughtfully.  The U.S. Supreme Court held that a parent’s right to raise their children as they see fit as a fundamental right in Troxel v. Granville, 527 U.S. 1069, (1999).  Accordingly, so long as a parent adequately cares for his or her children (i.e. is fit) there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that  parent to make the best decisions concerning the rearing of that parent’s children.
Feel free to contact our office for a free consultation to find out more about Grandparent visitation.