Grandparental visitation has been a recognized right in Oklahoma since 1971. Initially, the law allowed visitation upon a parent’s death if it was in the child’s best interest. Over the years, the statute expanded to include situations including divorce and other family disruptions. Despite amendments, the standard for granting visitation remained the child’s best interest.

By 1996, the statute allowed any grandparent visitation based on the child’s best interest, even against both parents’ wishes. However, in 1998, the Oklahoma Supreme Court ruled this unconstitutional without showing harm to the child or family disruption. Similarly, in 2000, the U.S. Supreme Court found a similar Washington statute unconstitutional for violating parents’ rights.

The current statute, Title 43, Section 109.4, requires grandparents to prove a myriad of legal hurdles to receive Court-ordered visitation.

Hurdle #1: Proof of Disruption

First, the Court must decide if the nuclear family (defined as a family consisting of a married mother and father) has been disrupted. Disruption for purposes of the law includes numerous scenarios including the divorce or annulment of the parties’ marriage, the death of a parent, the incarceration of a parent for a felony conviction, desertion of the child by a parent for more than one year, or where legal custody had previously been given to someone other than a parent or the child does not live in the parent’s home. 

In each of these scenarios, the grandparent seeking visitation must have already had a preexisting relationship with the child prior to filing the petition for the grandparent’s visitation.

The disruption component is by far the easiest to overcome, as it is simply an issue of fact.

Hurdle #2: Proof of Parental Unfitness

Second, the Court must make a showing of “parental unfitness,” or alternatively, if the parent is not unfit the grandparent must overcome the presumption that a fit parent is acting in the child’s best interest by showing, by clear and convincing evidence, that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent.

The statute includes numerous examples of what parental unfitness means, which include a (1) chemical or alcohol dependency, for which treatment has not been sought or for which treatment has been unsuccessful; (2) a history of violent behavior or domestic abuse; (3) an emotional or mental illness that demonstrably impairs judgment or capacity to recognize reality or to control behavior; (4) failing to provide the child with proper care, guidance and support to the child’s actual detriment; or (5) conduct or condition which renders the parent unable or unwilling to give a child reasonable parental care. 

This is a high burden for a grandparent to overcome, because proving that a parent is failing to provide a child with proper care, guidance and support to the child’s actual detriment is a nebulous concept. It’s a burden that has a relatively low bar for a parent to overcome.

Hurdle #3: Proof of Emotional, Mental or Physical Harm

If a grandparent cannot prove unfitness, they instead must try to prove that the child will suffer harm or potential harm. Without Court-ordered visitation, the child’s emotional, mental or physical well-being could reasonably or would be jeopardized.

These are high burdens for a grandparent to overcome for numerous reasons. Proving that a parent is failing to provide a child with proper care, guidance and support to the child’s actual detriment is a nebulous concept. It has a relatively low bar for a parent to overcome. It is also difficult to prove that a child’s emotional, mental or physical well-being would be jeopardized unless the Court enters an order granting visitation. This standard certainly requires the grandparent to hire a mental health expert to testify to the harm the child is likely to experience.

Hurdle #4: Proof of the Child’s Best Interest

Even if a grandparent can overcome the burdens above, the grandparent must then prove that a specific physical custody schedule is in the child’s best interests. The statute includes 14 separate factors the Court must consider, and if requested make specific findings of fact related to.

Some of these factors include the needs and importance to the child of continuing the preexisting relationship, the length, quality, and intimacy of the preexisting relationship, the mental and physical health of the grandparents, parents and child, the moral fitness of the parties and the motivation of the grandparents seeking visitation and the parents who are denying visitation.

Importantly, the statute suggests that if a parent is already allowing the child to spend quality time with the grandparent even though it is not Court-ordered, the grandparent will not reach their burden of proof for Court-ordered visitation. One of the “best interest” factors the Court must adhere to is the “motivation of the parent denying visitation.” It indicates that a grandparent will be unsuccessful in presenting the argument of “I can see the child, but it is not as much as I want.” 

Consult with a Knowledgeable Attorney

Grandparental visitation is a complex legal issue that requires scrutiny. Our team of experienced attorneys offers a collaborative approach to help clients and their families. Contact us to find a child custody lawyer today.