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  • Writer's pictureKyle Persaud

Does Guardianship Override Parental Rights?

The short answer is: A guardianship does override some parental rights, but it does not completely end parental rights.


First, a word about what a guardianship is: A guardianship exists where a person other than a parent has custody of a child. Under Oklahoma law, a court may not grant a guardianship unless both parents are deceased, or found to be “affirmatively” unfit. Affirmatively unfit means that the parents are unfit, not merely that someone else is better able to take care of a child than the child’s parents.


If the court appoints a person as guardian of the child, the guardian will often be able to make many decisions for the child that are typically reserved to parents: the guardian will be able to make decisions about the child’s education, medical care, and property. So, in this way, a guardianship will, to an extent, override parental rights.


However, a guardianship will not completely override parental rights. A guardianship order may still maintain parental rights in the following ways:


1.    The parent may, in some guardianships, be allowed to exercise some decision-making power. An Oklahoma law says that a guardianship order must include “conditions providing for the care, treatment, education and welfare of the minor.” These conditions will vary depending on the precise circumstances of each family. In some cases, a guardianship order will allow a parent to make certain decisions regarding the child.


2.    A guardianship order will often allow each parent to have visitation with the child. Just as a parent in a divorce case has visitation rights, a parent in a guardianship case also will often have visitation rights.


3.    A guardianship is by definition temporary, and a court may terminate a guardianship if the parents have regained their fitness. Oklahoma law also requires that in a guardianship, the Court “shall” require a review every year, and may require the guardian to submit periodic reports to the Court. The law also says that a court may remove a guardian “When it is no longer proper that the ward should be under guardianship.” Because a court may only grant a guardianship if the parent is unfit, it is good cause to terminate a guardianship if a parent regains his/her fitness.


All of the above laws are quite different for adoption cases. After a child is adopted, the biological parent will no longer have any decision-making power or visitation rights. Also, an adoption is permanent.


The U.S. Supreme Court has held that parents have a constitutional right to direct the upbringing of their children. The Oklahoma guardianship statutes recognize this, and this is why the state laws only allow guardianship when both parents are deceased or unfit. This is also why, even after a court grants a guardianship, the parents will still have some limited power in regard to the child, and why a court may terminate a guardianship.


Need Help? Contact the Persaud Law Office


The Persaud Law Office has represented many clients in guardianship cases. If you are a guardian, or a parent, in a guardianship case, and you want to know what rights a parent will still have after a guardianship, we may be able to help you navigate the legal terrain. If you have questions, contact us today.

 






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