Authored By: The Senior Law Resource Center, Inc.
The visitation law discussed in this section only applies to grandchildren who are under 18 years of age and are not married. The term grandparent also includes great-grandparent. However, this section on visitation does not apply to other relatives.
Do Grandparents Have Visitation Rights?
The law favors parents’ rights to make decisions about how to raise their children. This includes controlling with whom children spend time. Therefore, grandparents do not automatically have the right to visit their grandchildren.
Oklahoma law allows the court to grant grandparents visitation rights under certain circumstances. The court must find that all of the following criteria are met:
- the child does not live in an intact nuclear family,
- ordering visitation would be in the best interest of the child, and,
- the parents are unfit OR the child would suffer harm or potential harm if the visitation rights are not granted.
Each of these criteria is discussed in more detail below. The relevant Oklahoma statute can be found in section 109.4 of Title 43.
An Intact Nuclear Family
An intact nuclear family is one in which a child is being raised by a mother and a father who are married to each other. If both parents refuse to allow the grandparent to visit the child, a court cannot order visitation rights unless the intact nuclear family has been disrupted.
An intact nuclear family can be disrupted in the following ways:
Divorce, Separate Maintenance, or Annulment
The intact nuclear family is disrupted if there is a pending action between the parents for divorce, separate maintenance, or annulment of their marriage. However, the grandparent must also show that the relationship between the child and grandparent predates the filing of the action for divorce, separation, or annulment as well as the filing of the petition for visitation rights.
If the parents are already divorced, separated under a separate maintenance judgment, or have had their marriage annulled, the family is no longer intact, even if there is a new step-parent. Unlike when the action is still pending, the grandparent is not required to show that a relationship existed with the grandchild prior to the divorce, separation, or annulment.
Death of a Parent
The intact nuclear family is disrupted when a parent dies, but only if the deceased parent was the grandparent’s child. For example, a maternal grandparent can assert that the intact nuclear family has been disrupted if the mother passes away, but not if the father dies.
The grandparent must also show that there was a preexisting relationship between the grandparent and the child prior to the death of the parent and the filing of the petition for visitation rights. The only exception to this is if the mother died in childbirth when the grandchild was born.
The Child Does Not Live with the Parents or Is in the Legal Custody of Someone Else
If the child does not live with either parent, or if someone other than a parent has been granted legal custody of the child, the intact
nuclear family has been disrupted.
A Parent Is Convicted of a Felony and Is Incarcerated
If a parent is incarcerated on a felony conviction, the intact nuclear family is disrupted.However, a grandparent must also show that there was a preexisting relationship between the child and the grandparent prior to the incarceration and the filing of the petition for visitation rights.
Desertion of One Parent by the Other
If one parent has deserted the other parent for more than one year, the intact nuclear family is disrupted. In addition, the grandparent must show a strong, continuous relationship between the child and grandparent.
The Parents Were Never Married and Do Not Live Together
There is no intact nuclear family if the parents have never been married to each other and are not currently living in the same household. However, the grandparent must also show a strong, continuous relationship between the child and grandparent.
Parental Rights Have Been Terminated
If the parental rights of one or both parents have been terminated, the intact nuclear family is disrupted. Only the parents of the parent whose rights have been terminated may seek visitation. For example, if the mother’s parental rights are terminated, the maternal grandparents may seek court-ordered visitation based on this termination. The paternal grandparents cannot, although they may fit into another category of disrupted families.
In addition, the grandparent must show a strong, continuous relationship with the child.
How the Judge Determines the Best Interest of the Child
Grandparent visitation rights will not be granted unless the judge determines that it would be in the best interest of the child to do so. Oklahoma statute lists the factors that a judge is required to consider when deciding whether it is in the best interest of the child to grant grandparental visitation.
These factors include:
How Important To the Child Is It To Continue the Relationship and What Does the Child Prefer
The judge will consider how important it is to the child to continue the preexisting relationship with the grandparent. For example, if the child lived with the grandparents for a significant length of time and developed a strong bond, the court may find that it would be important to the child to continue that relationship.
Depending on the child’s age, the court will consider the child’s reasonable preferences about continuing the relationship with the
grandparent. Children who are old enough to develop an intelligent preference can express this preference to the judge. This testimony may be given privately in the judge’s chambers without the parents or other parties present.
The judge is not required to agree with the child’s preference and can consider other factors. If requested, the judge must indicate in the order why he or she did not comply with the child’s preference. Remember, only the child’s preferences and interests are considered. While it may not seem fair, the judge will not consider the grandparents’ preferences or interests.
The law does not specify a minimum age requirement for a child to be capable of expressing an intelligent preference. A child who is at least 12 years old is presumed to be able to express a preference unless there is evidence that the child lacks capacity.
How Willing Is the Grandparent to Encourage a Close Relationship Between the Child and the Parent(s)
The judge will consider whether and to what extent the grandparent is willing to encourage a close relationship between the child and the parent(s). It is, therefore, important not to try to interfere with the child’s relationship with the parent(s) or to turn the child against the parent(s).
What Is the Nature of the Relationship between the Child and the Grandparent(s)?
The judge will look at what kind of relationship the child and the grandparent had prior to the grandparent filing the petition for visitation rights. This includes how intimate the relationship is or was as well as the quality and duration of the relationship. The judge will also consider the love, affection and emotional ties between the child and grandparent.
What Are the Motivations of the Grandparent and the Parent(s)
The judge will consider the reasons the grandparent is trying to continue the relationship with the child and the steps taken to try to maintain this relationship.
On the flip side, the judge also considers the parents’ reasons for not wanting to allow visitation between the child and grandparent.
How Are the Mental and Physical Health of the Grandparent(s), the Parent(s), and the Child
The judge will take into consideration the mental and physical health of the grandparent, the parent(s), and the child.
Is the Child in a Permanent, Stable, and Satisfactory Family and Environment
The judge will take into consideration the stability and nature of the home and family of the child. If the child’s family and home environment are stable and satisfactory, the judge is less likely to order visitation and possibly disturb the positive situation.
What Is the “Moral Fitness” of the Grandparent(s) and the Parent(s)
The judge will look at the “moral fitness” of the grandparent and the parent(s). This may include the character and behavior of the grandparent and parent(s).
Who Lives with or Frequents the Homes of the Grandparent and Parent(s)
In addition to considering the parties’ moral fitness, the judge will consider the character and behavior of other people who are frequently present in the parties’ houses. The judge will consider how these people interact with the child.
What Visitation Arrangements Are Requested and How Disruptive Might They Be
The judge will consider the terms of the visitation being requested by the grandparent and determine whether granting the request would have a negative impact on the child’s routine. For example, a request to have the child visit the grandparent every weekend may be disruptive to the child’s extracurricular activities or the child’s relationships with parents, siblings, or friends.
What Makes a Parent Unfit
The standard of parental unfitness for purposes of getting court-ordered visitation is not the same as the standard used to terminate parental rights. A parent may be considered unfit if there is evidence of any the following:
Chemical or Alcohol Dependency
A parent may be determined to be unfit if the parent suffers from a dependency on drugs or alcohol. Treatment must either not have been sought or have been unsuccessful.
History of Violent Behavior
A parent may be unfit if the parent has a history of violent behavior or domestic abuse.
Emotional or Mental Illness
A parent may be unfit if the parent suffers from an emotional or mental illness. However, the illness must demonstrably impair judgment, the ability to recognize reality, or the capacity to control behavior.
Failure to Adequately Care for the Child
A parent may be unfit if the parent has failed to provide the child proper care, guidance, and support. The failure must actually cause harm to the child. This can include parental indifference that puts the child at unreasonable risk. Parental unfitness may also be shown by the parent’s inability or unwillingness to provide reasonable care to the child. At a minimum, reasonable care includes meeting the child’s physical, emotional, and mental health needs by providing adequate nurturing and protection.
How To Show the Child Would Suffer Actual or Potential Harm
If a parent is not determined to be unfit, there is a strong presumption that the parent is acting in the best interest of the child. A grandparent challenging a parent’s decision not to allow the child to visit with the grandparent must show by clear and convincing evidence that the parent is not acting in the
best interest of the child. Clear and convincing evidence is a high standard of proof.
The grandparent must show that the child would suffer harm or potential harm unless the grandparent is granted visitation rights. In other words, the child’s emotional, mental, or physical well-being could likely be or would be put in jeopardy if the court does not issue a visitation order.
How To File a Petition for Visitation
A grandparent seeking court-ordered visitation rights must file a petition in state district court. If there is already a court case that involves the child, the petition should be filed with the same court that is handling that proceeding. For example, if the parents are getting a divorce and the court is ruling on custody issues, the petition for grandparent visitation should be filed in the same court that is handling the divorce. If there is no pending case involving the child, the petition should be filed in the district court located in the same county where the child lives or where the custodial parent lives.
The petition must be verified. Notice of the petition must be given to the parent(s) or other person who has custody of the child. The judge will schedule a hearing to consider the petition. At the hearing, the grandparent has the burden of proof to show that all three criteria are met.
Grandparents wishing to petition for court-ordered visitation are strongly encouraged to consult with an attorney prior to filing.
If grandparents are granted court-ordered visitation rights, they may be required to pay the transportation costs to and from the visitation location.
How To Enforce Visitation Rights
Once a grandparent is granted visitation rights, the grandparent can ask the court to help enforce those rights if the parent is unreasonably uncooperative.
The grandparent can file a motion with the court asking the court to enforce the visitation order. The court will set a date to hear the motion. Notice of the hearing must be given to the parent(s) or other person who has custody of the child at least 10 days before the hearing.
The grandparent can ask the judge to approve a detailed visitation schedule. Parents who refuse to comply with visitation orders can be found guilty of contempt of court.
If a grandparent is wrongfully prevented from visiting the child, the grandparent can ask the judge to grant extra time to make up for lost visits. The grandparent can also ask the judge to make the parent(s) post a bond and/or pay attorney fees and costs.
What Happens If a Grandchild Is Adopted
Generally, a judge will not grant biological grandparents visitation rights after the child has been adopted. In fact, a judge is not allowed to grant visitation rights if the child was six months old or younger when the adoption took place.
However, if the grandparent had court-ordered visitation rights before the child was adopted, the adoption will not automatically terminate these rights. Before terminating the visitation rights, a judge must hold a hearing at which the grandparent can argue against cancelling the visitation order. The judge will only terminate the visitation rights if he or she finds it would be in the best interest of the child to do so.
How To Avoid Going To Court
It is always preferable to work out a voluntary visitation arrangement with the parents or guardians. Going to court should be a last resort.
Try to set up a voluntary schedule. Be as flexible as you can regarding the times and location of visitation. Document in writing this visitation schedule and any other agreements.
To the extent possible, grandparents should continue to keep in touch with their grandchildren through letters and phone calls. They should document these contacts in case it becomes necessary to show a judge or mediator that the grandparents have maintained a strong interest in and relationship with the grandchildren.
No matter what happens, a child should never be involved in disagreements between grandparent and parent. Avoid speaking negatively about the parent in front of the child.