Oklahoma statutes governing grandparent visitation have been amended 15 times since 1971. The current statutes are extremely long and detailed, though easy to understand on the surface. Generally speaking, they are not hospitable to grandparents' rights.
Provisions of the Law
Oklahoma is one of the few states to prohibit visitation "under any circumstances" if the nuclear family is intact and both parents object to visitation.
In Oklahoma, grandparents may be granted visitation if the court deems it in the best interests of the child, provided that the grandparent can show either parental unfitness or that the child would suffer harm in the absence of visitation.
Family situations in which visitation can be sought include death, divorce, separation, annulment, unmarried parents, incarceration and desertion. In most of these situations, a preexisting relationship between the grandparent and the grandchild is necessary for visitation. Some of the subsections call for a "strong, continuous grandparental relationship."
Great-grandparents have the same right to visitation as grandparents.
Determining Best Interests of the Child
Oklahoma law provides factors for consideration in deciding the best interests of the child. These include the following:
- The importance to the child of continuing a preexisting relationship with the grandparent
- The age and reasonable preference of the child
- the willingness of the grandparent to encourage a close parent-child relationship
- The length, quality and intimacy of the preexisting grandparental relationship
- The emotional ties between the parent and child
- The motivation and efforts of the grandparent to continue the grandparental relationship
- The parental motivation for denying visitation
- The mental and physical health of the grandparent
- The mental and physical health of the child
- The mental and physical health of the parent
- The permanence and stability of the family unit and environment
- The moral fitness of the parties
- The character and behavior of any other person who resides in or frequents the homes of the parties
- The quantity of visitation time requested and any adverse impact it would have on the child's customary activities
- If both parents are dead, the benefit in maintaining the preexisting relationship.
Provisions for Parental Unfitness
Oklahoma also provides guidelines for proving parental unfitness in a suit for grandparent visitation; however, such a finding cannot be used to terminate parental rights. These factors include the following:
- A history of violent behavior or domestic abuse
- Chemical or alcohol dependency, untreated or unsuccessfully treated
- An emotional or mental illness that impairs judgment or impairs the capacity to recognize reality or to control behavior
- A failure to provide the child with proper care, guidance and support
- Any other condition making the parent unable or unwilling to give a child reasonable parental care.
The Harm Standard
An alternative to showing parental unfitness is showing that denial of visitation will cause harm to the child. This "harm standard" was not present in the Oklahoma statutes until the 2007 revision, but it was invoked in cases such as In re Herbst (1998). In Herbst, the court found that "a vague generalization about the positive influence many grandparents have upon their grandchildren falls far short of the necessary showing of harm which would warrant the state's interference ...".
The Herbst decision was reinforced in In the Matter of the Guardianship of H.E.W. The appellate court found that the court could not even consider the best interests of the child unless the parent had been shown unfit or the child had been shown to have suffered harm from the denial of contact with the grandparent.
Because the child in question was only 7 months old when contact ceased, the court found that it was unreasonable to suppose that the child would suffer harm from a lack of contact. This decision was made in spite of the fact that the child's father had died during military service, and the grandmother and great-grandmother wished to provide a link to his dead father's family.
Adoption and Grandparents' Rights
Adoption does not automatically terminate grandparents rights in Oklahoma as it does in some states. In fact, the law states early on that grandparents can request visitation if "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." This law is, however, subject to qualifications that follow, stating that grandparents of a legally adopted child cannot request visitation after the adoption or in a case in which a child was adopted before the age of six months. However, visitation rights that were awarded before the adoption may not be terminated without an action of the court.
The law also states that if one natural parent is deceased and the other parent remarries, any subsequent adoption (presumably by the stepparent) does not end the visitation rights of the parents of the deceased parent. The court can, however, terminate those rights.
Parental Interference With Visitation
Oklahoma is one of the few states that spells out penalties for parents who don't comply with visitation orders. The process begins when the grandparent files a motion to enforce visitation. The court will then either order mediation or set a hearing. If the court finds in favor of the grandparent, it has the power to do the following:
• Set a specific visitation schedule
• Require that the lost visitation time be made up
• Set a bond requirement for parents who fail to follow the court-order visitation
• Require payment of attorney fees, mediation costs, and other court costs by the parent who has denied or interfered with visitation.
On the other hand, if a grandparent files a motion to enforce visitation and the court finds that the motion was "unreasonably filed or pursued" by the grandparent, the court may order the grandparent to pay the associated costs.
Selected Court Cases
Following the U.S. Supreme Court case of Troxel v. Granville, decided in 2000, most states had to take a hard look at their grandparent visitation laws. The Supreme Court justices had decided that a Washington state statute providing for third-party visitation was "breaktakingly broad" and did not give adequate weight to parents' right to the care, custody and control of their children.
Because case law in Oklahoma established that a showing of harm was needed in order to win a grandparent visitation case, the Oklahoma law never faced a serious constitutional challenge. The statutes were, however, modified many times in an effort to make Oklahoma's position more invincible.
See Oklahoma statutes. These statutes are followed by a lengthy list of cases citing the law, many of which make interesting reading. Grandparents should realize, however, that cases decided before the 2000 case of Troxel v. Granville may be of limited use.
A more detailed explanation of grandparents' visitation rights in Oklahoma, funded by Oklahoma Geriatric Education Center, may also be helpful.