The New Standby Guardianship Law in Oklahoma

Last year, the Oklahoma state legislature passed the “Oklahoma Standby Guardianship Act.” This law allows a parent to designate another person as guardian for a minor child if the parent becomes unable to care for the child for certain specified reasons. A parent may sign a written document naming a standby guardian, and if a “triggering event” occurs, the guardian may go to court and obtain custody of the child.

How does a parent appoint a standby guardian?

The parent must sign a written document designating a standby guardian. The document must state:

·         The name, address, and date of birth of the child

·         The name and address of the designated standby guardian. Also, the parent may designate and alternate standby guardian who may act if the standby guardian is unavailable. However, a parent does not have to designate an alternate.

When does a standby guardianship go into effect?

A standby guardianship take effect when a “triggering event” occurs. “Triggering event” may include a parent’s:

·         Military deployment

·         Court proceeding

·         Incapacity

·         “Other matter”

The law does not specifically say what constitutes an “other matter” that will cause a standby guardianship to go into effect. The legislature probably intended for the law to be broad, so that parents may specify a broad range of events under which a standby guardianship may be necessary. For example, some lawyers recommend that a parent name a standby guardian in the event that a parent is incarcerated. Immigration lawyers are advocating that non-citizen parents designate a standby guardian in the event that the parent is placed in immigration detention, or is deported. These lawyers note that the standby guardianship laws may reduce the problem of child homelessness, by ensuring that children do not become homeless simply because a parent is unavailable.

Thus, a parent may effectively name any event that may trigger a standby guardianship. If you write a standby guardianship designation, it may be wise for you to specifically state what “triggering events” might cause a standby guardianship to go into effect.

How does a standby guardian claim his/her authority?

The standby guardian does not automatically become guardian when the triggering event occurs. The standby guardian (or alternate) must file a petition in court for approval of the standby guardianship. The standby guardian must file the petition “as soon as practicable” after the triggering event, and must file the petition less than thirty days after the triggering event. If the standby guardian does not file a petition in court, the standby guardian’s authority ceases, although the standby guardian’s authority begins again if the guardian files the petition and the judge approves the guardianship. The standby guardian must send notice of the court proceeding to:

·         Both parents of the child

·         The child (if the child is 12 or older)

·         The proposed standby guardian and alternate

·         “Such other persons as appear to the court to be necessary parties.” These may include stepparents, grandparents, adult siblings, legal guardians, and any adult with whom the child lives.

The court must approve the standby guardianship if:

·         The parent properly designated the standby guardian or alternate

·         The triggering event occurred

·         The parent consents to the standby guardian’s authority (If the parent is mentally incapacitated, this may not be necessary), and

·         The guardianship is in the best interests of the child

If an alternate standby guardian filed the petition, the court may only grant guardianship if the court finds that the standby guardian is unable or unwilling to act as guardian.

Generally, the court may approve a standby guardian without a hearing. However, the court must hold a hearing if the child’s parent, stepparent, adult sibling, or any other adult related to the child by blood marriage, or adoption requests a hearing within ten days after notice was sent. The court must also hold a hearing if there is any other litigation pending regarding the child’s custody (for example, if the parents are involved in a pending divorce case.)

Appointing a standby guardian if a parent did not designate a standby guardian

If a parent did not designate a standby guardian, then “any person” may petition for standby guardianship. The petition must state what “triggering event” made the guardianship necessary. The petition must also state why the child’s other parent is not taking responsibility, or should not take responsibility, for the child.

Revoking a standby guardianship

If the standby guardian is currently serving, the parent may, at any time, file a notice of revocation with the court. The parent must also deliver this notice of revocation to the standby guardian or alternate standby guardian. If the “triggering event” that triggered the guardianship ceases (for example, if the parent is relieved from military deployment) then the standby guardianship does not automatically cease; the parent must still file the revocation with the court.

If the standby guardian does not want to continue serving as guardian, the standby guardian may also file a statement of refusal to serve. The standby guardian must serve this refusal on the parent, and on any alternate standby guardian.

If the standby guardianship has not yet gone into effect because the triggering event has not occurred, then the parent may revoke the standby guardianship by notifying the standby guardian – no filing in court is necessary. Also, if the triggering event has not occurred, the standby guardian may refuse to act simply by notifying the other parent. Also, if a parent has designated a standby guardian, and the triggering event has not occurred, and the parent designates another person as standby guardian, this new designation automatically revokes the original designation.

When a person is acting as standby guardian, any adult related to the child by blood, marriage, or adoption may petition the court for “review” of whether the guardianship is in the best interests of the child. The person petitioning for review must notify the standby guardian, both parents, and the child if the child is twelve or older. If the court finds that the standby guardianship is no longer in the best interests of the child, the court may terminate the standby guardianship.

The advantages of the new law

Before the Oklahoma legislature passed the standby guardianship law last year, a person could only become a child’s legal guardian if both of the child’s parents were “unfit.” The new law allows a person to act as guardian in other instances where a child needs a guardian. This helps prevent instances where a child is unable to receive the care he/she needs.

Have a question about standby guardianship? Contact the Persaud Law Office

If you would like to designate a standby guardian, we can help you fill out the form. Or perhaps a parent has designated you as a standby guardian, and you need to file a petition for court approval because the triggering event has occurred. Or maybe a standby guardianship is in effect, and you would like to terminate it.

The Persaud Law Office is ready to help you navigate this new area of law. If you would like assistance with a standby guardianship issue, contact us today. We’re happy to help.