Does a Paternal Grandmother Have Rights?
If you have grandchildren, you may wonder: Do I have visitation rights? What rights do I have? This post will discuss grandparents’ rights in Oklahoma.
Grandparents have visitation rights, but these rights are limited.
To get visitation, a grandparent must either show that the parents are unfit, or rebut the presumption that a fit parent is acting in the best interests of the child.
The grandparent must also show that the family has been disrupted in some way.
In Troxel v. Granville (2000) the U.S. Supreme Court ruled that, in any case where a non-parent requests visitation, the court must give “special weight” to the parents’ decision. The Supreme Court left it up to each state to decide how to give this weight to the parents’ decision.
Oklahoma’s statute on grandparental visitation is found here.
To conform to Troxel, Oklahoma has amended its grandparental visitation statute to say that if the parents are married, and the child lives with the married parents, a count may not grant visitation to a grandparent. The statute also says that there is a presumption that a fit parent is acting in the best interests of the child. If you’re a grandparent seeking visitation, you must show that either the parents are unfit, or you must rebut the presumption that a fit parent is acting in the child’s best interests. You must rebut this presumption by “clear and convincing evidence.” For more on what “clear and convincing” means, click here. You must also show that the child would suffer harm, or potential harm, if the court does not grant you visitation.
You must also show that the “intact nuclear family has been disrupted” because one of the following has occurred:
The parents are going through a divorce, separation or annulment, and you had a preexisting relationship with the child.
The grandchild’s parents are divorced, separated by court order, or a court has granted them an annulment.
Your child, who is the child’s parent, is deceased, and you had a preexisting relationship with the child. You can’t get visitation on this ground if the mother died from childbirth complications.
A non-parent has custody of the child
The grandchild does not live with his/her parents
One of the grandchild’s parents is in prison for a felony conviction, and you had a relationship with the child before the parent went to prison
You had custody of the child (whether by court order or not) and there is a strong, continuous relationship between you and the grandchild
The grandchild’s parent has deserted the other parent for over a year, and you have a “strong, continuous relationship” with your grandchild
Your grandchild’s parents were never married, do not live together, and you have a strong, continuous relationship with your grandchild
Your child’s parental rights have been terminated, and you have a strong, continuous relationship with your grandchild.
A note of caution to any grandparent who seeks visitation with a grandchild: You will have to show either that the parents are unfit, or that a fit parent is not acting in his/her child’s best interests. If there is a court document on record stating that a parent is unfit, or not acting in a child’s best interests, then this document could hurt the parent later on. An allegation of parental unfitness could trigger a DHS investigation. If your child (who is the grandchild’s parent) is still alive, you could potentially harm your child by seeking visitation with your grandchildren.
To grant you grandparental visitation, the court must determine that visitation is in the best interests of the child. In determining the best interests, the court must consider the following factors:
a. Whether the child needs a relationship with you. If the child is mature enough to make a decision, the court must consider the child’s preference. If the child is at least twelve, there is a rebuttable presumption that the child is mature enough to make a decision. (Note that the law says if a child is old enough, the court “must consider” the child’s preference. The law does not say that a court “must follow” the child’s preference. As long as a child is under eighteen, the court does not have to follow the child’s preference. For more information on when a court must consider a child’s preference, read my earlier post here.)
b. Whether you are willing to encourage a close relationship between the child and the parent(s),
c. How long, and how close, your relationship with the child was before you sought visitation,
d. The relationship the child has with his/her parents,
e. Why you want to have a relationship with your grandchild, and what efforts you have made to have a relationship with your grandchild,
f. Why the parents are denying you visitation,
g. Your mental and physical health,
h. The child’s mental and physical health,
i. The parents’ mental and physical health,
j. What kind of environment the child lives in (whether the environment is “permanent, stable, and satisfactory”)
k. Your moral fitness, and the parents’ moral fitness,
l. The character and behavior of any other person who lives in, or frequently comes to, your house or the parents’ house, and the interaction of these person(s) with the child,
m. How much visitation time you have requested and whether this amount of visitation will harm the child’s activities, and
n. if both parents are dead, whether there is a benefit in your continuing a relationship with the child.
The Oklahoma statute treats maternal grandparents in the same way that it treats paternal grandparents. The only exception is that if a child is born out of wedlock and the father’s rights have been terminated, the court may only allow visitation to the paternal grandparents if the father has been judicially determined to be the father.
The Oklahoma statute does not treat grandmothers any differently than it treats grandfathers. The statute also gives the same rights to great-grandparents, as it gives to grandparents.
In this post, I have discussed grandparental visitation. If a grandparent wants custody of his/her grandchild, the grandparent will have to petition for a guardianship. For more information about guardianship, click here and here.
The law on grandparental visitation can be very confusing. The Persaud Law Office may be able to answer any questions you might have. If you are interested in seeking visitation with your grandchildren, contact the Persaud Law Office today.