How Can I Get Custody of My Sister's Child in Oklahoma?

In Oklahoma, there are procedures that allow adults to gain custody of a relative’s child. However, because parents’ rights are fundamental, a non-parent may not obtain custody unless both parents are unfit or unavailable. If you do need to seek custody of a relative’s child, you may apply to the court to become the child’s legal guardian. This post will explain how.

The U.S. Supreme Court has held that parents have a “fundamental liberty interest … in the care, custody, and management of their child.” Thus, if a non-parent seeks custody of a child, the non-parent has a high hurdle to overcome.

Therefore, in Oklahoma, the standard for awarding custody in a dispute between a parent and a non-parent, is different from the standard applied in divorce cases, where parents are challenging each other. In divorce cases, a court is to award custody based on whatever is in the “best interests of the child.” But, in disputes between a parent and a non-parent, the court is to award custody to a parent unless the parent is “affirmatively unfit.” This means that, even if a court may believe that it is in the best interests of a child for a non-parent to have custody, the court should give custody to a parent unless both parents are “affirmatively unfit.”

There is a “rebuttable presumption” that a parent is affirmatively unfit if the parent:

·       Has been convicted of a crime listed in the Oklahoma Sex Offenders Registration Act or is living with a person convicted of such a crime

·       Is, or ever has been required to register as a sex offender, or is living with someone who is, or has been required to register as a sex offender

·       Has been convicted of domestic abuse within the past five years, or is living with a person who has been convicted of domestic abuse within the past five years

·       Is alcohol- or drug-dependent, and can be “expected in the near future” to harm himself or another person because of such dependency (Note: a parent is not considered affirmatively unfit if the parent is living with an alcohol- or drug dependent person who can be expected in the near future to harm himself or others as a result of such dependency.)

In addition, there is an absolute prohibition on court awarding custody to people who have been convicted of certain listed sexual offenses. The list of sexual offenses which disqualify a person from having custody of a child is found in subsection D of this law here.

Do you think you need to gain custody of your sister’s child?

If you believe that your sister is an unfit parent, there is a law that will allow you to have custody. This law is called the “order of preference.” This order, found at Okla. Stat. 12 § 112.5, says that a court should award custody to the following persons, in this order:

1.     A parent

2.     A grandparent

3.     A person that a deceased parent desired to have custody

4.     A relative of a parent – this would include obtaining custody of your sister’s child

5.     A person in whose home the child has been living, if the child was living “in a wholesome and stable environment.”

6.     Any other person that a court has deemed suitable.

How you can get custody of your sister’s child

If you want to gain custody of a relative’s child, you may go to court and apply for a “kinship guardianship.” Elsewhere on this site, and on my YouTube channel, I describe how you can obtain a kinship guardianship. I will not repeat all the details in this post, but to summarize how you can obtain a kinship guardianship:

File a petition in court. Ask the judge to set the petition for hearing. Notify the parents, and notify the child if the child is fourteen or older. You may also have to notify other relatives. At the hearing, explain to the judge why you need a guardianship. If the parent or anyone else objects to the guardianship, the judge will set the matter for trial, where each party has the right to have an attorney, present evidence, and call witnesses. If the judge decides that a guardianship is necessary, the judge should appoint you as the child’s legal guardian. Guardianship allows you to act in loco parentis – that is, guardianship gives you the same power over the child that a parent has. (However, in some cases, the judge may limit your power to less than what a parent has, and the judge will likely grant the parent visitation rights, and the judge may allow the parent some decision-making power in the child’s life.)

There are no Oklahoma laws which specifically address obtaining guardianship of your sister’s child. However, as noted above, the law does give preference to the relatives of a child. Also, if you have been living in the home with your sister’s child, or if you have a prior relationship with the child, a court will be more likely to grant you guardianship than if you are a stranger to the child.

Standby guardianship

The Oklahoma legislature recently passed a law allowing “standby guardianship.” This new law allows a non-parent to gain custody if the parents are unavailable (for example, if the parents are on military duty.) In a standby guardianship, the guardian does not need to prove that the parent is unfit – only that the parent is unavailable. To find out more about standby guardianship, read my post here.

Do you have questions about a guardianship? Contact the Persaud Law Office

At the Persaud Law Office, we’ve helped many clients obtain guardianship over children. We’ve also helped parents terminate guardianship and get their children back. If you need help with a guardianship, we’d be happy to assist. Give us a call today.