Who can seek custody?
Most commonly, custody will be given to one parent (sole custody) or both parents (joint custody). However, it is possible for a non-parent to appear before the court to try and prove that both parents are unfit in order for the non-parent to get custody of a child. Grandparents, adult relatives, and any person a child has been living with in a caring and wholesome environment are among the people who can ask that parents be declared unfit so that custody could be granted to the non-parent petitioner. However, this does not mean that a non-parent can get custody just by coming to court and saying, “We can take better care of the child than either parent.” A parent must be declared “unfit.”1
We recommend that you talk to an attorney when you are involved in a divorce or any custody dispute, especially if anyone (a parent or non-parent) is trying to get custody. Go to our Oklahoma Finding a Lawyer page for legal referrals.
Note: In any situation where the court has to decide custody or visitation of a child, the court may decide to appoint an attorney, known as a guardian ad litem, to represent the best interests of the child.2
1 See, for example, Weber v. Linch, 579 P.2d 213 (Okl.App.,1978)
2 43 O.S. § 107.3(A)
Can an abusive parent get visitation or custody? What if s/he is a sex offender or an addict?
If the judge believes that there has been domestic violence, stalking, or harassment, the judge will assume that sole custody, joint custody (legal or physical) or any shared parenting plan is harmful to the child and not in the child’s best interest. It will be assumed that it is in the child’s best interest to live with the non-abusive parent.1 However, the abusive parent can offer evidence to prove that the judge should change his/her mind and still grant the parent custody rights. For the legal definition of domestic violence, stalking, and harassment, please go to our Selected Oklahoma Statutes.
The law also says the judge is supposed to assume it is not in the child’s best interest for a parent to get custody if the parent:
- is a registered sex offender or lives with one;
- has been convicted of a crime involving child abuse or lives with someone who has;
- is dependent on alcohol or drugs and can be expected in the near future to seriously harm or attempt to harm to himself/herself or another person as a result of such dependency; or
- has been convicted of domestic abuse within the past five years or lives with someone who has.2
However, even if a parent meets one of these above criteria, the parent can still try to offer evidence to change the judge’s mind and get custody rights.
If you are looking to get the other parent’s rights terminated, you can file a petition to terminate parental rights if the other parent was convicted in criminal court of any of the following:
- rape by instrumentation;
- permitting a child to participate in pornography;
- lewd molestation of a child under sixteen years of age;
- child abuse or neglect;
- enabling child abuse or neglect;
- causing the death of a child as a result of the physical or sexual abuse or chronic abuse or chronic neglect of the child;
- causing the death of a sibling of the child as a result of the physical or sexual abuse or chronic abuse or chronic neglect of the child’s sibling;
- murder of any child or aiding or abetting, attempting, conspiring, or soliciting to commit murder of any child;
- voluntary manslaughter of any child;
- a felony assault that has resulted in serious bodily injury to the child or another child of the parents; or
- murder or voluntary manslaughter of the child’s parent or aiding or abetting, attempting, conspiring, or soliciting to commit murder of the child’s parent.3
Note: In any case, custody or visitation is not supposed to be granted to a parent if you can prove that it will likely expose the child to a foreseeable (likely) risk of serious harm.4
If an abusive parent is seeking visitation or custody, we strongly suggest that you seek the assistance of an attorney who has experience with domestic violence issues and custody. To find an attorney or shelter in your area, see our Oklahoma Finding a Lawyer page.
1 43 O.S. § 109(I)(1)
2 43 O.S. § 112.2(B)
3 10A O.S. § 1-4-904(8)(b)
4 43 O.S. § 112.2(C)
If my child was conceived from rape, can the offender's rights be terminated?
If your child was conceived as the result of rape, you can file a petition to terminate the offender’s parental rights. If, after a hearing, the judge determines that your child was conceived as a result of rape, the offender’s rights can be terminated.1
In addition, the other parent’s rights can be terminated based on a conviction in criminal court of rape, or rape by instrumentation, regardless of whether or not it resulted in your child being conceived.2
1 10A O.S. § 1-4-904(11)
2 10A O.S. § 1-4-904(8)(b)
I am the child's grandparent. Can I get custody or visitation?
A non-parent, such as a grandparent, can only try to get custody of the child by showing that the parents are unfit. This is a hard thing to do. Another way to get custody is if you have the agreement of the parents and they give up (relinquish) custody to you in writing; and then a judge must approve it award custody to you. You may also be able to get custody if the parents abandon the child. It is highly recommended that you get an attorney to help you out with these types of custody cases. You may be able to find legal help on our Oklahoma Finding a Lawyer page.
If the parents won’t allow you (the grandparent) to visit and you file for visitation in court, you can only get visitation against the wishes of the parents if:
- It is in the child’s best interests to have visitation with you; and
- Either of the following are true:
- The parents are proven to be unfit; or
- You have proven that a fit parent is not acting in the best interest of the child by denying you visits by showing that:
- the child will/can be harmed by the denial of contact with you; and
- the child’s family unit has been disrupted by something like divorce, death of a parent, or the child being deserted, etc.1
Note: There are specific scenarios that your situation would have to fall under to apply for grandparent visitation even if you believe you meet the factors above. To read the specific circumstances you would have to meet, go to our Selected Oklahoma Statutes page, and read paragraph A.1 of section 109.4. To read the factors the judge will consider when deciding if it is in the child’s best interest (mentioned in #1, above), go to our Selected Oklahoma Statutes page, and read section E.1 of section 109.4.
1 43 O.S. § 109.4