Guardianship – Grandparent Rights

Guardianship and Adoption Practice Area Image

Guardianship matters are often complex legal matters that become more complex when there are disagreements over who should serve as the guardian. A judge will determine what is in the best interest of the individual who may need a guardianship to protect and take care of them self. Having experienced attorneys who understand the Oklahoma guardianship laws is imperative when establishing the guardianship for a minor child or adult.

At Ritchie, Rock, McBride & Atwood Law Firm we lead you through the complex and emotional decision to establish guardianship over your loved one. If you are considering seeking guardianship over and adult or child, please contact our firm to schedule a free consultation so we can answer any of the questions or concerns you have about this legal process.

What is a Guardianship?

Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.

Who Qualifies for a Guardianship?

Legal Guardianship may be requested by a family member or non-family member to be a Guardian of a minor child or an incapacitated adult.

Duties of Guardian

A good guardian will take into account the wishes and desires of the person under guardianship when making decisions about the residence, medical treatments, and end-of-life decisions. The courts will remove only those rights that the proposed person under guardianship is incapable of handling.

When the courts appoint a guardian, the following rights of the person under guardianship may be removed. These rights may include the right to:

  • Determine residence.
  • Consent to medical treatment.
  • Make end-of-life decisions.
  • Possess a driver’s license.
  • Manage, buy, or sell property.
  • Own or possess a firearm or weapon.
  • Contract or file lawsuits.
  • Marry.
  • Vote.

Process and Procedure

Because establishing guardianship is a legal process that involves the removal of the individual’s rights, considerable due process protection often exists when the guardianship is established. They include:

  • Notice to the individual of all proceedings.
  • Representation of the individual by counsel.
  • Attendance of the individual at all hearings/court proceedings.
  • Ability of the individual to compel, confront and cross examine all witnesses.
  • Allowance of the individual to present evidence.
  • Appeal of the individual to the determination of the court.
  • Presentation of a clear and convincing standard of proof.
  • The right of the individual to a jury trial.

Individual rights removed and due process rights may vary from state to state, the final authority is the state statues where the person with the disability lives. In any type of guardianship, the court may limit the guardian’s authority. The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible. The guardian’s authority is defined by the court and the guardian may not operate outside that authority. A guardian may be a family member or friend or a public or private entity appointed by the court.

Guardianship of the Person

When the court appoints a guardian of the person, the guardian may have the following responsibilities:

  • Determine and monitor residence.
  • Consent to and monitor medical treatment.
  • Consent and monitor non-medical services such as education and counseling.
  • Consent and release of confidential information.
  • Make end-of-life decisions.
  • Act as representative payee.
  • Maximize independence in least restrictive manner.
  • Report to the court about the guardianship status at least annually.

Guardianship of the Estate or Property

“Estate” is defined as real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.
When the court appoints a guardian of the estate, the guardian is assigned the following responsibilities:

  • Marshall and protect assets.
  • Obtain appraisals of property.
  • Protect property and assets from loss.
  • Receive income for the estate.
  • Make appropriate disbursements.
  • Obtain court approval prior to selling any asset.
  • Report to the court or estate status.

Length of a Guardianship

The goal of effective guardianship is to be able to restore the rights of the individual who, for whatever reason, has had some of them removed by a court after due process. It is true that in many instances once a guardianship has been initiated by a court, it is in place until the incapacitated person dies. However, an annual review and assessment will monitor the need for maintaining or terminating a guardianship, and alert the court to a potential restoration of some or all of the incapacitated person’s rights.

Grandparent Rights & Visitation

Grandparents do not have a constitutional right to see their grandchildren. Fortunately, Oklahoma has a statute that may allow for court-ordered visitation.

In order for a grandparent to receive court-ordered visitation in Oklahoma, a grandparent must show three things:

  1. It is the best interest of the child to have visitation with the grandparent.
  2. The grandchild’s parent is unfit, or if the grandchild has a fit parent, the grandchild would still suffer potential harm without visitation with the grandparents.
  3. The intact child’s nuclear family has been disrupted.

Best Interest of Child to Have Visitation with Grandparent

In determining the best interest of the child, the court will look at the following primary factors:

  1. Whether or not the grandparent has a preexisting relationship with the grandchild;
  2. Does the grandchild want to have a relationship with the grandparent;
  3. Does the grandparent encourage for the grandchild to have a close relationship with the child’s parents;
  4. What are the motivations of the grandparent for seeking visitation;
  5. What previous efforts has the grandparent taken to visit the grandchild;
  6. Why a parent would not allow the grandparent visitation prior to court action;
  7. The mental and physical health of the grandparent, the grandchild and parent;
  8. Is the child in a stable family unit and environment;
  9. What type of character do others have who visit the home that may interact with the grandchild;
  10. How much visitation time is the grandparent requesting and the impact on the grandchild’s activities.

The Child’s Parent is Unfit, or the Child will likely Suffer Harm by not Visiting with the Grandparent

This is the most difficult for Grandparents to prove in Court. If a Grandparent believes a parent is unfit, a Guardianship may be a better option to consider.

A Court will often find a parent unfit if the parent:

  1. has a drug abuse problem,
  2. has a history of violent behavior or domestic abuse,
  3. has a mental illness,
  4. has failed to provide the child with proper care, guidance and support to the actual detriment of the child
  5. demonstrates conduct them unable or unwilling to give a child reasonable parental care.

If a parent is not found to be unfit, a grandparent must show that a lack of visitation would be harmful to the child by providing evidence in support. Often this may require an expert witness that can testify to the child’s needs.

Family has been Disrupted

Before filing for visitation a grandparent must show that the child’s family has been disrupted. This often means the parents have divorced but can also mean that a parent has been incarcerated.

Firm’s Primary Geographical Practice Region For Guardianship and Grandparent Rights Matters

Pryor, Oklahoma, Tulsa, Oklahoma, Claremore, Oklahoma, Jay, Oklahoma, Shawnee, Oklahoma, Oklahoma City, Oklahoma, Rogers County, Oklahoma, Wagoner County, Oklahoma, Mayes County, Oklahoma, Delaware County, Oklahoma, Tulsa County, Oklahoma, Pottawatomie County, Oklahoma and Oklahoma County, Oklahoma.