Oklahoma

State

Senate

Legislative
Brief

June 2000

Issue Background
A recently released survey by AARP found about one in nine American grandparents above the age of 50 helps care for at least one grandchild. During the last twenty years, the Oklahoma Legislature has increasingly expanded the ability of grandparents (including great grandparents) to seek and be granted grandchild visitation.

In 1997, the Legislature addressed concerns about promoting children's best interests against parental rights in grandparental visitation matters through enactment of provisions that require a court to consider several factors(1) in determining the best interest of the child.

In 1998, the Supreme Court of Oklahoma found that a provision of the grandparent-visitation laws(2) violated the constitutionally protected interest of parents to raise their children without undue state interference in cases that involve intact families whose care for their children has never been questioned or suspect.(3) The Court also asserted that to reach the issue of the child's "best interest" there must be a requisite showing of harm, or threat of harm, to bring the issue before the court or some instance of death or divorce which brings the child's domestic situation within the province of the court. In other contexts such as visitation upon termination of parental rights, divorce, death of a parent, paternity and adoption, the statute has been upheld and grandparental visitation has been allowed if the court finds the visitation to be in the best interest of the child.

The 2000 Legislature responded to constitutional concerns by enacting House Bill 1983. This measure tailored the language of the statute to allow grandparents to seek and be granted visitation rights, independent of a parent's right of visitation, if it is in the best interest of the child and another specified triggering event has occurred or is occurring, for example, a divorce between the child's parents is pending before the court.

On June 5, 2000, the United States Supreme Court rendered a decision in the closely watched grandparental visitation matter of Troxel v. Granville, No. 99-138. In that case, the Washington statute that the Troxels sought to invoke allows "any person" to petition for visitation rights "at any time" and allowed the court to order visitation rights when "visitation may serve the best interest of the child." The Court found the Washington State nonparental visitation statute "breathtakingly broad." However, the Justices did not consider the primary constitution question passed on by the Washington Supreme Court - whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.

It does not appear that the Court's opinion in Troxel will have a significant impact in Oklahoma since the Justices did not consider the Due Process Clause issue. Additionally, Oklahoma grandparental-visitation laws are not as expansive as Washington's.

States are experimenting with a variety of ways to promote children's best interests against parental rights in grandparental visitation matters as the number of skipped-generation caretakers increase.

Summary of Actions

Grandparental Visitation
HB 1983 (Worthen/Snyder) Modifies the circumstances in which a court "may" grant grandparental visitation rights. A grandparent of an unmarried minor child may seek and be granted reasonable visitation rights to the child which visitation rights may be independent of either parent if the district court deems it to be in the best interest of the child and:

• an action for divorce, separate maintenance or annulment involving the grandchild's parents is pending before the court,
• the grandchild's parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled,
• the grandchild's parent who is a child of the grandparent is deceased,
• expect as otherwise provided in subsection B or C(4) of this section, legal custody of the grandchild has been given to a person other than the grandchild's parent, or the grandchild does not reside in the home of a parent of the child,
• the grandparent had custody of the grandchild pursuant to Section 21.3 of this title, whether or not the grandparent had custody under a court order, and there exists a strong, continuous grandparental relationship between the grandparent and the child,
• the grandchild's parent has deserted the other parent for more than one (1) year and there exists a strong continuous grandparental relationship between the grandparent and the child,
• except as otherwise provided in subsection C of this section, the parental rights of one or both parents of the child have been terminated, and the court determines that there is a strong, continuous relationship between the child and the parent of the person whose parental rights have been terminated, or
• at any other time and for such other reason the court deems it to be in the best interests of the child.

This measure also provides for process for cases of denial of or interference with grandparental visitation rights.

1 In determining the best interest of the minor child, the court shall consider: 1. The willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents; 2. The length and quality of the prior relationship between the child and the grandparent or grandparents; 3. The preference of the child if the child is determined to be of sufficient maturity to express a preference; 4. The mental and physical health of the child; 5. The mental and physical health of the grandparent or grandparents; and 6. Such other factors as are necessary in the particular circumstances. See 10 O.S. Supp. §5 (D).
2 Pursuant to the provisions of this section each and every grandparent of an unmarried minor child shall have reasonable rights of visitation to the child if the district court deems it to be in the best interest of the child. The right of visitation to any grandparent of an unmarried minor child shall be granted only so far as that right is authorized and provided by order of the district court. (10 O.S. Supp. 1999, §5(A)(1))
3 In the grandparental visitation matter of In Re Herbst 971 P.2d at 399, the court asserted "there is no interest so compelling which could give the State of Oklahoma license to interfere with the decision of these parents whose care for their child has never been questioned or suspect…Any conflict between the fundamental, constitutional right of parents to care for their children as they see fit and the statutorily created right of grandparental visitation must be reconciled in favor of the parents' constitutional rights. The relationship between parent and child must be held paramount.
4 Subsection B and C address adoption of a child by the spouse of a natural parent after one natural parent is deceased and the surviving natural parent remarries and the case where a child has been born out of wedlock and the parental rights of the father of the child have been terminated or the rights of the mother have been terminated, respectively.