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 preferences 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, an 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.
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 non-parent 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.
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;
- is a violent or potentially violent drug or alcohol abuser;
- has been convicted of domestic abuse within the past five years;
- is residing with another person who has been convicted of domestic abuse within the past five years; 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; the procurement of or the keeping of a child for prostitution, first-degree rape, and the like.
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.
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