Who Can Get Guardianship of a Minor Child?
By default, parents are the first and default guardians of a child. They are expected to watch over the child and oversee their welfare. As the default legal guardian, parents are also required to make decisions in the best interest of their children. However, certain situations or circumstances can cause the authority or guardianship to change base. Parents may need to appoint someone else to act as guardians for their children based on health changes, financial problems, changes in the family relationship, or others. In situations where parents cannot do this and are unfit to carry out their role, a court of competent jurisdiction may step in to appoint a legal guardian. In Oklahoma, the same judges that handle family law disputes handle the majority of guardianships. In this article, we hope you will gain an understanding of who can get guardianship of a minor child in Oklahoma and that you know we are here to answer your questions, if needed.
By law, a guardian is any person with the authority to make legal decisions for another person. In the instance of a minor or “a ward,” a legal guardian is required because children are incapable of making life choices for themselves. As a parent looking to appoint a legal guardian, many factors should be considered. Read on to find out more about legal guardianship and what it entails.
How Guardians Are Selected for Minors
Parents may be deemed unfit or unable to carry out their duties for many reasons. For example, an addict is regarded as unfit to make serious decisions for their children and maybe deemed unfit to act as a child’s legal guardian. Parents involved in volatile and high-conflict divorces may also be deemed unfit to make clear decisions in the interest of their children. Whether the parents are dead, absent, or unfit, the guardian selection process is a thorough one.
Courts often make decisions in the child’s best interest, which means that they consider all the possibilities before appointing a legal guardian. In most cases, courts choose guardians who already have established ties with the parents or family. Grandparents or other relatives are the first in line.
It is important to note that a legal guardian will only be selected after the parents have been deemed unfit or absent. However, in some states, such as Oklahoma, a parent may be able to transfer guardianship to another temporarily. For a quick recap, guardianship of a minor may be necessary for the following situations in Oklahoma and elsewhere:
- The parents are embarking on an international trip without the child hence necessitating the need to appoint a guardian while they are away.
- The child lives in a different country, away from the parents.
- The child is disabled and requires special care.
- Parents have been deemed unfit to care for the child.
- Both parents are incarcerated or dead.
- The parents have abandoned the child without care.
A child may also be appointed a new legal guardian if one of the parents is incarcerated or dead while the other is absent.
How to Get Legal Guardianship of a Child in Oklahoma
In Oklahoma, an adult may be awarded the legal guardianship of a minor if:
- They file a petition in court
- Get a hearing date and notify the child’s parent of the same
- Attend the hearing and get legal guardianship awarded by the judge.
Anyone who wishes to obtain legal guardianship of a minor has to go through the right process, especially if the child’s parent hasn’t nominated them. Interested persons will be required to obtain and fill out some forms that will then be submitted in court. Interested guardians can also choose to hire a guardianship attorney to represent them in court, or they can represent themselves.
It is, however, highly recommended that you seek legal help from experienced family lawyers familiar with guardianship issues. Irrespective of your decision to hire a lawyer or not, you must pass through the following steps;
How Do I File a Guardianship Petition in Court in Oklahoma?
Filing the guardianship petition in court in Oklahoma can be complicated; however, it is the first of many necessary steps in order to obtain a guardianship over a minor child or any other party, such as a vulnerable adult.
The first step in obtaining legal guardianship of a minor involves filing a guardianship petition in an Oklahoma court. Filing this petition requires a filing fee; however, our office will pay the filing fee out of your retainer, if you decide to work with us.
In order to file a guardianship in Oklahoma, you must follow a strict set of steps and correctly identify the law, parties, and multiple pieces of information, in order for the Court to even grant you a hearing on your petition for guardianship. In Oklahoma to file your guardianship petition correctly, you must locate the county wherein the minor resides or in the country where you reside. If you’ve chosen the latter, you must submit a court affidavit stating the following:
- Where the minor has lived for the past five years. This information must include the names and addresses of all persons with whom the minor has lived within the past five years.
- Your participation in any of the court cases regarding the minor’s custody or visitation. Quote the court and case numbers of your participation, if any.
- The existence of any court case(s) that could influence the decision of the petition being submitted.
- The existence of a person that isn’t party to the guardianship case that may claim custodial rights to the minor.
This information must be provided to the court to fulfill the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) requirements. Per UCCJEA provision, a court that has made a custody determination in the past regarding a child has exclusive continuing jurisdiction over the case. This means that interested guardians have to defer to the court where earlier custody arrangements had been made for their custody petition. The case can only be moved to another court if the initial court or another determines that neither the child nor the parents, nor any person acting as a parent, resides in the state where the original custody determination was made. In Oklahoma, guardianship cases are closed to the public; therefore, it is even more important to work with an experienced Oklahoma guardianship attorney in order to ensure you take your action before the right court.
The UCCJEA aims to protect the child, parents, and legal guardian from parties who may wish to obtain a favorable hearing and decision from another state. Interested legal guardians can speak to their guardianship attorney if they feel the provisions of the UCCJEA may hinder their chances of giving the minor involved a better chance at life.
Do I have to Notify the Parents of the Guardianship Hearing?
After filing the guardianship petition, the court requires you to notify the minor’s parents of the hearing date. To prevent fraudulent acts, you must send the notice of hearing to relevant parties at least 10 days before the hearing date. The court may act in its capacity to determine when a shorter notification period is appropriate.
The petitioner must notify the following parties in any guardianship action in Oklahoma:
- The minor’s parent,
- The child, if the child is 14 years old or over,
- Any other party involved in the minor’s custody case,
- The minor’s grandparents, in instances where the minor has no living parent,
- Grandparents looking to file guardianship petitions are required to notify the other grandparents,
- Grandparents whose minors have no other living grandparents, or grandparents with no known address must send a notification to other adult relatives living in the county where the petition has been filed.
Notice of guardianship petition must be delivered by one of the following means in order to provider proper service:
- The sheriff of the county where the petition has been filed
- A licensed process server
- Certified mail to the recipient’s last known address
Notice of guardianship petition must be delivered to the following parties:
- The person to whom the notification is addressed to
- Any person aged 15 or above that resides in the designated recipient’s home
If the notice cannot be served to the intended recipient through the stipulated means, the petitioner may request leave to serve the recipient through other means. Some of the common alternatives include a newspaper publication done once a week for three consecutive weeks. You may also speak to a guardianship attorney for more information regarding this.
In case of an emergency, the petitioner may be able to request a special guardianship which comes with less stringent notice requirements. In some emergency cases, judges may allow the petitioner to obtain guardianship without notice or award a 72-hour notice period to expedite the matter.
To obtain a special guardianship, the petitioner must be able to prove that the minor concerned will suffer immense, immediate, and reasonably serious physical harm if adequate and immediate steps are not taken. In instances where the court appoints you as a special guardian without notice, you’ll be required to give notice to the due parties after the award.
A special guardianship often lasts up to thirty days.
Are Background Checks required when seeking a Guardianship in Oklahoma?
Yes, in any case where you are seeking legal guardianship of a minor or legal guardianship of any individual, a background check is necessary in order for the Court to be able to grant any person the role of guardian. The background check process is tedious, if you do not work with these agencies on a regular basis and is one of the primary reasons parties seeking a guardianship work with experienced guardianship attorneys to handle this complicated process for them.
There are three primary forms of background checks, which are required in seeking to obtain guardianship in Oklahoma. The types of background checks necessary in order to obtain a Guardianship in Oklahoma include the following:
- National fingerprint based criminal background check, such as an FBI background check;
- Statewide background check, including the database for the Sex Offender Registration Act, which is typically accomplished by obtaining an Oklahoma Bureau of Investigations (“OSBI”) Background Check; and
- Child Abuse and Child Neglect database (“CANIS”) information, which is typically maintained by the Oklahoma Department of Human Services (“DHS”).
All three background checks must be completed in order to obtain a guardianship in Oklahoma Courts; however, you do not have to do all the work. Our office can complete the applications for your guardianship case. We can submit the background checks for your Oklahoma guardianship case. Most importantly, we can follow-up and make sure the right parties receive the background checks and that they are returned to our office in a timely manner.
Can I download and complete the Oklahoma Guardianship Background Check Forms?
Yes, you can download and complete the three necessary Oklahoma guardianship background check forms yourself. The following are links to the three locations you can obtain the paperwork necessary to request the necessary background checks for a guardianship in Oklahoma, if you want to get the process started now before hiring a guardianship attorney or you want to seek to obtain a guardianship in Oklahoma without an attorney:
- FBI Background Check for your guardianship application;
- OSBI Background Check for your guardianship application; and
- DHS Background Check for your guardianship application.
It is important that you begin the process for all three background checks as soon as you determine you want to seek a guardianship in Oklahoma, either by submitting the forms yourself or retaining an experienced Oklahoma City guardianship attorney. The third background check for seeking a guardianship listed above, DHS background check typically takes the longest; however, Courts are authorized to begin the process of considering and potentially granting you a guardianship prior to receiving the results of this background check.
The comprehensive checks listed above may not be applicable in the case of an emergency or special guardianship petition in Oklahoma; however, it is important to hire an experienced Oklahoma guardianship attorney to seek these records on your behalf.
Does Oklahoma required anything other than a Background Check to obtain a Guardianship?
Yes, before perfecting the terms of the guardianship, the court may require a study of the prospective guardian’s home in accordance with the Oklahoma Adoption Code. The court may also require a background check to be done on the legal guardian and anybody over the age of 18 around them.
What Happens at the Guardianship Hearing?
The third stage in obtaining legal guardianship of a minor is the guardianship hearing. The court will determine who should be the minor’s guardian at the hearing. The hearing allows the child’s parent or any subsisting custodian to present their case. After hearing the sides of the case, the judge will decide on whether to set the matter for trial or award guardianship. An uncontested guardianship is possible if the petitioner can prove that both parents of the minor are unfit to carry out their duty.
What disqualifies Someone from seeking a Guardianship?
Before getting into the specific disqualifications for seeking a guardianship in Oklahoma, it is important to remember the purpose of disqualifying factors is to protect the child, children, or vulnerable adult that is to be cared for as part of the guardianship. A guardianship petition may be disqualified from obtaining emergency guardianship of a minor or otherwise in the following specific instances:
- The petition is submitted by another minor, i.e., a minor cannot be appointed as the legal guardian of another minor,
- The petitioner is incapacitated and/or requires special care,
- The petitioner has been appointed guardian over five persons,
- The petitioner has not proven to be financially capable of carrying out their duties as a legal guardian,
- The petitioner has not been a resident of Oklahoma for at least one year.
Can Criminals obtain Guardianship of a Minor Child?
The simply answer is “yes, but it is it complicated.” Many individuals with a criminal record can become guardians in Oklahoma; however, there are several specific criminal criteria, which may deny a petitioner from becoming a legal guardianship of a minor include conviction for any of the following offenses; however, when you work with an experienced guardianship attorney you will be able to present a strong argument to the court why you should be appointed guardian, in lieu of another party or the child or children become wards of the State:
- Possession, purchase, and/or distribution of child pornography
- Forcible sodomy of a child
- Sexual abuse or sexual exploitation of a child
- Kidnapping, with associated sexual abuse or sexual exploitation of a child
- Aggravated possession of child pornography
- Child stealing, involving sexual exploitation or abuse
- Facilitation, solicitation, encouragement, or offering sexual conduct with a minor by use of technology
- Procuring minors (under the age of 18) for prostitution
- Indecent exposures, proposals, or lewd acts to a child under 16 years
- Solicitation of a minor in child pornography or indecent exposure
Are there Financial Reasons why Someone cannot obtain a Guardianship?
Yes; however, as stated above in relation to criminal history, which may deny a petitioner the ability to become a guardian for a minor or obtain another form of guardianship; these are factors, not hard rules. When you work with an experienced Oklahoma guardianship attorney you will be able to present a strong argument to the court in response to the following financial concerns, which may be a basis to deny legal guardianship of a minor:
- Petitioner that has been declared bankrupt within five years of filing the petition
- Petitioner under financial obligation to the minor
- Petitioner who is insolvent or unable to pay their debts when due
- Petitioners with conflict of interest to the minor
- Petitioners with a criminal record, pending criminal charge, protective order, or other civil or criminal matter.
It is important to note that a court cannot grant legal guardianship of a minor to any person that does not legally resident within the United States. This means that illegal residents or overseas guardians are disqualified from their interest in the minor child.
What are a Legal Guardian’s Duties, Rights, and Powers as Legal Guardian?
The duties, rights, and power of a Legal Guardian are numerous and basically give a person legal power of attorney or a parent to act on behalf of the ward or person protected under the guardianship. The granting of position of legal guardianship comes with huge responsibilities that should be taken seriously. In many cases, the guardianship court may call you back after some weeks to re-evaluate the decision to entrust the minor in your care.
The review meeting will determine whether you continue as the minor’s guardian or not. Our team of Fierce Advocates will work with you to help you understand the process and all your requirements before obtaining a guardianship, in seeking to obtain a guardianship, and your responsibilities after obtaining a guardianship in Oklahoma.
Duties of a Legal Guardian
The person or parties granted guardianship of a minor are assigned specific duties to provide for the health, safety, and general welfare of the minor child or ward of the guardianship. Legal guardians are entrusted with the right and authority to control the following affairs of the ward or minor:
- Education of the Ward
- Health of the Ward
- Property of the Ward
The legal guardian has the duty to act in the best interest of the children and to ensure they are properly cared for during the period of the guardianship. Legal guardians have the following duties to the Court over the guardianship and to the Ward:
- To take care of the minor
- File guardianship reports with the court
- Do everything in the interest of the child while refraining from exploiting the minor or their property.
The Rights and Powers of a Guardian
A guardian may be appointed over a minor’s person, property, or both. In most cases, guardians have authority to change the minor’s residence, dictate medical care preferences, make education-related decisions, as well as faith-based decisions.
Guardians with full authority over the minor’s person and property may also control the minor’s finances, income, and may make decisions regarding the purchase and sale of the minor’s property. A court can, however, define the extent of the guardian’s powers based on the specific facts of a minor’s case. Our team of Oklahoma guardianship attorneys will work with you to develop a plan that fits your specific needs. We will draft the petition for guardianship in a way that requests the powers and rights of a guardian that are necessary for your situation and then fight for your interests and goals at the guardianship hearing.
According to the Oklahoma guardianship statutes, a guardian’s powers are only limited to what was ordered by the court. Therefore, it is important to work with an experienced Oklahoma City guardianship attorney to ensure that you request all the powers you will need from the court in your guardianship case. It is possible to return to court to request additional powers as guardian; however, this can cost you both time and money. Therefore, it is best to work with a guardianship attorney to identify everything you need up front in your specific case. With this in mind, the court can order one of three types of guardianships:
- General guardian
- Limited guardian
- Special guardian
General Guardianship: the general guardianship has the broadest power as provided by the OKLA. STAT. tit. 30 §1-109. A general guardian has control over the minor’s person, property, or both. “A general guardian is a guardian of the person or of all the property of the ward within this state or of both such person and property.”
Limited Guardianship: the limited guardianship has limited authority over the minor’s person, property, or both. The court will define the limits within which this guardian can operate. Limited guardianships are “authorized by the court to exercise limited powers over the person of the ward, or over the property of the ward within this state, or over both such person and property” pursuant to OKLA. STAT. tit. 30 §1-109. Limited guardianships are the most specifically tailored and are best to suit circumstances with specific needs for a guardianship. They are easier to obtain than a general guardianship, as well.
Special Guardianship: A special guardianship is appointed only in emergency situations where the minor is in danger or faced with significant imminent danger. Special or emergency guardianships are often for a limited time, and the minor’s parents retain their constitutional right to custody over the minor. A special guardianship arrangement may only be extended if both parents are deemed unfit to carry out their duties over the child. These are the most common guardianships put into place in urgent or emergency situations.
It is crucial to work with an experienced Oklahoma guardianship attorney to understand the benefits and limitations of each type of guardianship that exists in Oklahoma.
Are there any Limitations to the Guardianship Powers?
Yes, there are limitations to the guardianship powers in Oklahoma. Although guardians are entrusted with the power to make certain decisions regarding the minor’s person, property, or both, there are limitations to their powers. These limitations include a guardian’s inability to withhold life-sustaining treatment from the minor.
However, there are certain exceptions to this limitation. Guardians may be able to consent to withdrawal of life-sustaining treatments from a minor if;
- A court of competent jurisdiction awards such authority;
- The minor has authorized the guardian to make such decisions under the Oklahoma Do-Not-Resuscitate Act or Oklahoma Advance Directive Act; or
- The guardian agrees for the minor to receive hospice services as directed by a licensed physician who has classified the minor as terminally ill. The diagnosis must comply with Oklahoma Hospice Licensing Act.
Other limitations to the guardianship powers in Oklahoma include:
- A guardian may also not consent to the termination of the ward’s parental rights if they have children,
- A guardian may not consent to medical procedures like psychosurgery, abortion, bodily organ removal, the performance of experimental behavioral or biomedical procedures, and participate in such experiments. The guardian may be exempted in the event of emergency healthcare procedures necessary to save the ward’s life.
- A guardian may not stand in the way of the ward’s divorce or marriage, unless a court grants the specific authority.
- Guardians are also required to undergo a trial before committing the ward to an institution. The ward is required to have legal representation at this trial.
When Does a Guardianship End in Oklahoma?
Guardianship may be removed or a guardianship may be terminated by the court when the guardian is failing to perform their duties or the need for the guardianship has ended. The guardian may request the guardianship be terminated or in some cases another party can contest a guardianship or even the state can move to terminate a guardianship.
Who can act as Legal Guardian, if I cannot care for my Child?
Any competent party over the age of eighteen of sound mind and not under duress or acting fraudulently may seek to obtain guardianship over a minor child. When you as a parent nominate a party to be guardian of your child they are given preferential treatment by the Court; however, it is not automatic that the party you nominate as guardian will be appointed guardian. When you work with an experienced Oklahoma guardianship attorney you increase your chances of achieving the outcome you are seeking and also understanding every step of the process.
Contact: Cannon & Associates – Fierce Advocates™ for Families needing Guardianship
A n experienced Oklahoma City guardianship attorney is a vital resource when you are seeking guardianship. Speak to an experienced Oklahoma guardianship attorney at Cannon & Associates for legal guidance. Complete the CONTACT FORM ON THIS PAGE NOW or CALL (405) 657-2323 for a free and confidential case strategy session. We look forward to meeting you and answering your questions.
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