Parents Must Show They Are Fit to Take Care of Their Child
Video Transcribed: How hard is it to terminate a guardianship in Oklahoma? I’m Oklahoma attorney James Wirth, and that’s the question that we have. Once a guardianship has been entered where somebody other than the parents have been given custody, how difficult is it for the parent to terminate that guardianship?
Well, first off, once a guardianship is entered, generally you see that there is a plan in place. There’s terms that need to be decided for the parent to complete, in order to show that they’ve kind of corrected those concerns that led to the guardianship in the first place.
The law likes that to be done at the time guardianship is entered. It’s part of case law, but it’s not always the case. So, if you’re a parent and the guardianship has been entered and there hasn’t been findings on what the parent needs to do to kind of resolve these issues, you can file a motion to terminate and request at least that you get those findings put in place, so you can start working that in order to start the progress towards getting the termination of the guardianship because many times the court don’t like to terminate all at once.
They find it’s not necessarily in the best interest to go from a hundred percent with guardians to a hundred percent with parents, so a lot of times, we see step-up provisions where we start with supervised visitation, and then expanded supervision. And then, maybe it goes unsupervised, and then more visitation, then overnight, we show that the concerns that led to the guardianship have been corrected, and then the court completely terminates the guardianship.
In any respect, the burden is on the parent to show that it’s appropriate to terminate the guardianship once it’s been granted. We get that information from a seminal case regarding guardianships in Oklahoma. It’s the guardianship of M.R.S. and it provides as follows. The person seeking termination of guardianship must show clear and convincing evidence that the conditions that led to the creation of the guardianship have been corrected.
If that parent is a parent who has been found unfit, then fitness must be established. So, the burden is on the parent, not just by a preponderance of the evidence, but a higher level of clear and convincing evidence to show that the fitness has been repaired, that they are a fit parent.
So, it’s not a super complicated process. It’s not a super difficult process because parents have a constitutional right to the care and custody of their kids. However, if the court finds that the guardianship was necessary, that overcame that presumption there, we just need to show that those conditions have been corrected, the hoops have been jumped through to get the parents in the position where they are fit now, and then it’s incumbent on the court to make those findings. And if they can meet their burden of clear and convincing evidence, they terminate that guardianship.
There’s some general information on it, but if you’re dealing with this type of issue, you’re going to want to talk to an attorney privately and confidentially to get legal advice just for your circumstances. To get that scheduled with a Tulsa guardianship lawyer at my office, you can go online to makelaweasy.com.
