In Oklahoma, courts will always strive to place the custody a child with one or both of the parents in a divorce. But what happens when one or both parents are unable to care for the child. One or both parents may be deceased, unable or unfit to properly care for a child. In that case, Oklahoma law sets out a list of other people in order of their priority of preference for child custody.
Other Preference Priorities
After parents, the court will look to:
- A grandparent; then
- A person who was indicated by the wishes of a deceased parent ( a named guardian); then
- A relative of either parent (this could be an aunt, uncle or another relative); then
- The person in whose home the child has been living in a wholesome and stable environment such as a foster parent; then
- Any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. Okla. Stat. tit. 43 § 112.5
The court’s first preference is with the parents unless it is proven by clear and convincing evidence that the parent has willfully failed to support the child for a period of at least 12 months as either set out in a child support order, or according to the financial ability of the parent if no such order exists. Token support or small amounts contributed by a parent do not qualify as meeting a parent’s support obligation.
If there is clear and convincing evidence that the child has been left in the physical custody of a nonparent by a parent or parents of the child for a year or more, and the parent or parents have not maintained regular visitation or communication with the child, a court will award custody to a person other than the parent or parents. This rule does not apply to parents on active duty in the military. Again, token visits do not qualify as meeting a parent’s visitation or communication obligation. Okla. Stat. tit. 43 § 112.5
Problems of Parental Fitness in Custody Determinations
When awarding custody, a court maintains a presumption that both parents are fit unless the parent is:
- a registered sex offender;
- a violent or potentially violent drug or alcohol abuser;
- has been convicted of domestic abuse within the past 5 years;
- is residing with another person who has been convicted of domestic abuse within the past 5 years; or
- or who has been convicted of any of the following: child sexual abuse of any sort or endangerment, kidnapping, incest, any crime involving minors and pornography, procurement of, or keeping a child for prostitution, first-degree rape and the like. Okla. Stat. tit. 43 § 112.5
In any of these cases, custody will be denied.
Custody issues have long-term effects on both parents and children. If you have questions or concerns about a custody matter, bring them to an experienced Tulsa child custody lawyer.
Free Consultation With A Tulsa Family Law Attorney
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