When Parents Can’t Care for Their Child
Child custody matters usually must be decided during a divorce, often between the parents of the child. There are times, however, when one or both parents may not be able to care properly for the child. This can happen for many reasons but, when it does, courts must look elsewhere to determine who will get custody of the child. Oklahoma courts are guided by a priority of preferences list for child custody. If you are interested in receiving custody of a child or learning more about that process, get in touch with the child custody attorneys at Tulsa’s Seventh Street Law Firm.
Court Priority of Preferences After Parents
Courts always look to parents first when determining custody. However, sometimes parents are deceased, unfit, or unable to care for their child for other reasons. If this happens, the court will then look to the following in order (Okla. Stat. tit. 43 § 112.5):
- a grandparent
- a person named by a deceased parent as guardian of the child
- a relative of either parent (the child’s aunt or uncle, most likely)
- a foster parent or other person with whom the child has been living in a wholesome and stable environment
- any other person determined by the court to be able and deemed suitable to provide the proper care and guidance for the child
Clear and Convincing Evidence
The court’s first preference is always to place a child with the parents. For a court to move on to the next priority of preference for child custody, clear and convincing evidence must exist to show that the parent or parents are not fit or are otherwise unable to care for the child.
This can be shown if a parent has, according to an existing child support order, willfully failed to support the child for at least 12 out of the past 14 months. If there is no existing child support order, it can be according to the parent’s financial ability. Courts take the financial obligation to support a child very seriously. Small support payments or irregular token payments will not meet this obligation.
Likewise, if there is clear and convincing evidence that a parent has abandoned the care of the child to another person for the past year or more (excluding parents in active military service), and the parents have not regularly visited or regularly communicated with the child, the court will award custody to a person other than the parents.
Issues of Parental Fitness
Oklahoma law presumes that both parents are fit. Under the law, there is a rebuttable presumption that a parent is unfit when the parent:
- is or has been a registered sex offender
- is a violent or potentially violent drug or alcohol abuser, as proven by clear and convincing evidence
- has been convicted of domestic abuse within the past five years
- is living with another person who has been convicted of domestic abuse within the past five years
- has been convicted of the following: child sexual abuse, child sexual exploitation, child endangerment involving sexual abuse, kidnapping involving sexual abuse, incest, any crime involving minors and pornography, the procurement of or the keeping of a child for prostitution, first-degree rape, and the like.
The list is long, and most of the crimes listed involve sexual abuse or exploitation.
When one parent is found unfit, the court will grant custody to the other parent if possible. If that is not possible, the court will award custody to the next available person on the priority preference list.
Custody issues are some of the most emotionally charged issues handled by family courts. They are often complicated and require the services of an experienced Tulsa family law attorney.
Initial Strategy Session with a Tulsa Child Custody Attorney
These cases require special attention. They can be emotionally complicated and difficult. Contact the Seventh Street Tulsa Law Firm for a initial, confidential consultation. Call today at (918) 932-2777. We’ve also provided a form on the right side of this page where you may send your question or inquiry and receive an email reply.