How Can I Get Legal Guardianship of a Child?
Updated: Oct 28, 2020
To become a child's guardian in Oklahoma, you must:
File a petition in court
Get a hearing date and give notice of hearing to the child's parents (and possibly other parties)
Attend the hearing. You become the guardian when the judge signs the order appointing you guardian.
This is the second post in a three-part series on guardianships. Last week’s post discussed how a parent may nominate someone else to be their child’s guardian. This post will show how you can obtain guardianship of a child. Next week’s post will explain the rights and duties of a guardian.
There are legal documents you need to file, in court, in order to obtain guardianship of a child. I've posted these forms here; you can fill them out, and take them to court, if you want to represent yourself in a guardianship case. However, I don't recommend that you represent yourself. If you are interested in obtaining guardianship, and can afford an attorney, it's best to hire an attorney.
Filing the petition in court
To obtain guardianship of a minor in Oklahoma, your first step is to file a petition for guardianship, in court. You must pay a filing fee; however, you may ask the court clerk to waive this fee if the fee would create a financial hardship for you.
You must file your petition either in the county where the minor resides. If you are a relative of the minor, you may file this petition in the county where you reside. You must submit an affidavit stating:
· Where the child has lived during the past five years. You must include the names and addresses of all persons with whom the child has lived.
· Whether if you have participated in any other court case concerning the custody or visitation with the child, and, if so, identify the court and case number.
· Whether you know of any court case that could affect the outcome of the guardianship.
· Whether you know of any person, not a party to the guardianship case, who may claim custodial rights to the child.
You must submit this information to the court, because of a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, a court that has made a custody determination, regarding the child, has exclusive, continuing jurisdiction over custody of the child, until that court determines that another court is a more convenient forum, or until that court, or another court, determines that neither the child, nor the child’s parents, nor any person acting as a parent, reside in the state where the custody determination was made. The UCCJEA exists to prevent parties who have received an unfavorable custody ruling, from going to another state to obtain a more favorable ruling.
To read the UCCJEA, click here. If you believe that the UCCJEA may be a barrier to filing your guardianship case in the county where you or the child reside, speak to an attorney. The UCCJEA is quite complicated, and has exceptions which are too intricate to be discussed in a blog post of this length. Your attorney may be able to help you find a way to have your guardianship case in that county where you would like it to be heard.
Giving notice of the guardianship hearing
After you have filed your petition with the court, you must ask the judge to give you a hearing date. When the judge gives you a hearing date, you must send notice of the hearing to:
· The child, if the child is fourteen years old or over;
· The minor’s parents;
· Any other person having custody of the minor
· If the minor has no living parent, you must send notice to one of the grandparents. (If you, or your spouse, is a grandparent of the minor, you must send notice to a grandparent other than you or your spouse).
· If the minor has no living grandparent other than you or your spouse, or if you do not know the address of any such grandparent, you must send notice to one of the minor’s adult relatives, who lives in the county where the petition is filed.
You must send this notice to the above-listed persons, at least ten days before the hearing. If the court finds that a shorter time period is necessary to give notice, the court may direct a shorter time period.
You must deliver this notice by:
· The sheriff delivering the notice to the person, or to a person at least 15 years old who resides in the person’s home;
· A licensed process server delivering the notice to the person, or to a person at least 15 years old who resides in the person’s home;
· By certified mail to the person’s last known address
If you cannot serve notice upon the person by any of these means, you may ask the court to allow you to give service by other means. If all else fails, you may give notice by publishing notice in the local newspaper, once a week for three consecutive weeks. For more information on giving notice by publication, go to my civil law page and click on the FAQ, “I want to sue someone, but I can’t find them. Can I still sue?”
If the child is eligible for membership in an Indian tribe (even if the child does not have a CDIB card) then you must also send notice of the proceeding to the Bureau of Indian Affairs, and to any Indian tribe in which the child may be eligible for membership.
If there is an emergency, you may ask for a “special guardianship,” and the notice requirements are less stringent. In a special guardianship, the judge may allow you to obtain a guardianship without any notice at all, or by giving notice to the child and an adult relative of the child within 72 hours of the hearing. To obtain a special guardianship, you must show that the child will suffer “Immediate or reasonably foreseeable serious physical harm” or “serious impairment of the financial resources”, unless the court grants the guardianship without delay. If the court appoints you special guardian without notice, then, after the court appoints you, you have to give notice to the child and to an adult relative of the child. A special guardianship can only last up to thirty days. To see the law on special guardianships, click here.
At the hearing
At the hearing, the court will determine whether you should be the guardian of the child. The child’s parent, or any other person having custody of the child, will have the right to present their side of the story to the judge. The judge may set the matter for trial. The parent, or other person having custody, may hire attorneys, and may cross-examine you. You may only have guardianship of a minor child if you can prove that both parents are unfit.
The court may require a home study of your home, done in accordance with the Oklahoma Adoption Code. The court must require a background check of you and all persons eighteen years old or older, who live in your home. This background check must consist of:
· A national fingerprint-based criminal background check or an Oklahoma State Bureau of Investigation name-based criminal history background check
· A search of the Department of Corrections' sex offender files, and
· A search of the child abuse and neglect information system (CANIS) of the Oklahoma Department of Human Services
The Court does not need to require such a background check for an emergency special guardianship.
There are certain conditions, which automatically disqualify a person from acting as guardian. There are also conditions, which, if a prospective guardian possesses, a judge must make inquiry to ensure that the conditions will not impede the person’s ability to act as guardian. In last week’s post I list those conditions; click on the post to see if any of those conditions apply to you.
If the judge finds that you are a suitable guardian, the judge will sign an order granting guardianship, and letters of guardianship. File these documents with the court clerk, and ask the court to certify the documents. (When the court clerk certified a document, the court clerk stamps the document to show that the document is authentic.) These documents will serve as legal evidence that you are the child’s guardian.
After the judge appoints you as guardian, the judge should set a review date for you to return to court, so that the judge may determine whether the guardianship should continue. In next week’s post, where I discuss the rights and duties of a guardian, I’ll talk about what you should do at this review.
Petition for Custody by Abandonment
If the child’s parents have abandoned the child, and, the child lives with you full-time, and you are a “qualified relative” of the child, you may obtain “custody by abandonment.”
a. the willful intent by words, actions, or omissions not to return for a child, or
b. the failure to maintain a significant parental relationship with a child through visitation or communication in which incidental or token visits or communication are not considered significant, or
c. the failure to respond to notice of deprived proceedings;
“Qualified Relative” means an adult grandparent, great-grandparent, brother, sister, half-brother, half-sister, uncle, aunt, niece or nephew or a spouse of a qualified relative.
When you file a petition for custody by abandonment, the rules for giving notice are the same as for any other guardianship; see above.
If a child is without a fit parent, obtaining guardianship can be one of the most loving acts you can do for the child. If you believe that a child needs a guardian, don’t put off filing for guardianship. Contact the Persaud Law Office today for a free consultation.