Do Grandparents Have Visitation Rights in Oklahoma?

For many children, their grandparents are an integral part of their lives. When parents separate or divorce, both parents' relationship with their in-laws can become strained. Too often, this strain impacts a child's ability to visit with his or her grandparents.

Grandparents who want to spend time with their grandchildren, even when it's against the parent's wishes, may have legal recourse. Many states recognize grandparents' rights, but it's important to understand the specific criteria for when and how visitation can take place in your state. This article provides an overview of grandparent visitation rights in Oklahoma. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws

Grandparents don't have any constitutionally recognized rights to visitation with their grandchildren. Instead, a grandchild's biological or adoptive parents hold those rights and grandparents can obtain visitation only in limited circumstances.

In the famous U.S. Supreme Court case Troxel v. Granville, the Supreme Court discussed parents' fundamental rights to raise and rear their own children. However, the Troxel case refused to strike down a Washington state law granting substantial grandparent visitation. What Troxel left us with is varying degrees of grandparent visitation throughout the 50 states. Although many individuals have challenged grandparent visitation laws in their state, most of the time these laws are upheld.

Grandparent Visitation Rights in Oklahoma

Although grandparents have visitation privileges in Oklahoma, those privileges are secondary to and can't conflict with a parent's custodial rights. In any custody case, a judge's main focus is to preserve the parent-child relationship.

Oklahoma's Supreme Court struck down an earlier version of the Oklahoma Grandparent Visitation Statute as unconstitutional based on Troxel. The current amended statute has withstood legal challenges and allows grandparent visitation when 3 factors are present, specifically:

• grandparent visitation serves the child's best interests
• the grandchild's parent(s) are unfit or the grandchild would be harmed if grandparent visitation didn't occur, and
• the grandchild's nuclear family unit has been dissolved by circumstances, including:
  • the grandchild's parents have filed a divorce, annulment or maintenance action and the grandparent's relationship with the grandchild predates the divorce, annulment or maintenance action
  • the grandchild's parents are divorced or separated or have had their marriage annulled
  • the grandchild's parent, who is a child of the grandparent, is deceased, and the grandparent's relationship with the grandchild predates the parent's death
  • a person other than a parent was awarded custody of the grandchild, or the grandchild doesn't reside in either parent's home
  • one or both of the grandchild's parents has been convicted of a felony and is incarcerated and the grandparent had a relationship with the grandchild that predates the parent's incarceration
  • the grandparent had custody of the child at some point, whether court-ordered or not
  • the grandchild's parent deserted the other parent for at least 1 year and the grandparent has a strong bond with the grandchild, or
  • the grandchild's parents have never been married, they don't live together, and the grandparent has a strong, continuous relationship with the grandchild.

All three elements must be present for a grandparent to receive court-ordered visitation rights. For example, in one Oklahoma case, the court denied a paternal grandparents' visitation request because only one of the three statutory elements was met. The child's father was designated as the non-custodial parent in a divorce action, and wanted the child's grandparents, his parents, to have additional visitation. The court refused to grant grandparent visitation privileges because neither parent was unfit, the child wasn't in danger, and there was no evidence showing that mandatory grandparent visitation served the child's best interests.

In another Oklahoma case, a court granted a paternal grandmother's request for visitation. Visitation was appropriate in this case because the grandmother had a strong, continuous relationship with the child and the child's parents' never married, so no nuclear family ever existed. Additionally, the grandmother's son (and child's father) had died and the child's mother had only recently cultivated any relationship with the child. Although the exact criteria under the statute weren't met, the court determined that grandparent visitation served the child's best interests and the spirit of the statute.

When Can a Grandparent Obtain Custody of a Grandchild?

In a nutshell, a court can award a grandparent custody of a grandchild when a parent is deemed unfit. Specifically, in one Oklahoma case, a lower court's decision awarding maternal grandparents custody of their grandchild was overturned. In the case, the child's mother was deceased, but the child's natural father sought custody. The higher court awarded the father custody of the grandchild, because although he wasn't previously involved in the child's life, he was a fit and proper parent. A grandparent's custody and visitation rights with a grandchild are always secondary to a parent's rights.

Can a Grandparent Obtain Visitation with an Adopted Grandchild?

Parents who adopt a child have no duty to maintain or allow contact between the child and any biological relative – including grandparents. Some exceptions apply when adoptive couples and biological families enter into their own visitation contracts. In situations where a visitation contract exists, the families should follow its terms.

So what happens when a grandchild has been adopted by a stepparent? Can a grandparent seek visitation? The short answer is yes, as long as visitation is in the child's best interests, the child would be harmed if visitation didn't occur, and the child's nuclear family unit has been dissolved.

However, one Oklahoma case clarified that grandparents can't obtain court-ordered visitation with grandchildren adopted by a stepparent if the grandparents have no biological connection. In other words, a grandparent might be able to seek visitation with grandchildren adopted by the grandparent's own child, but not those adopted by a spouse.

In cases where grandchildren are suffering, a grandparent may feel compelled to intervene. If you're a grandparent seeking visitation with or custody of your grandchildren, it's important to understand your rights. If you have additional questions about grandparent visitation rights in Oklahoma, contact a local family law attorney for advice.