WHAT GRANDPARENTS NEED TO KNOW ABOUT THEIR LEGAL RIGHTS AND THE LEGAL SYSTEM- GRANDPARENTS RAISING GRANDCHILDREN

Transcription

1 WHAT GRANDPARENTS NEED TO KNOW ABOUT THEIR LEGAL RIGHTS AND THE LEGAL SYSTEM- GRANDPARENTS RAISING GRANDCHILDREN By Donna J. Jackson Attorney at Law 2812 NW 57th, Ste 104 Oklahoma City, Ok (405) Donna J. Jackson is a CPA and an attorney. She specializes in estate planing, including trusts, special needs trusts, wills, durable power of attorneys, living wills; taxes; probates; and business organizations, including corporations, limited partnerships and limited liability companies. Donna J. Jackson obtained a BS and MS in accounting from Oklahoma State University. She received her juris doctorate degree from Oklahoma City University School of Law in She is a member of the Oklahoma Bar Association, American Bar Association, National Academy of Elder Law Attorneys, Oklahoma State Society of CPAs, Wealth Counsel, Elder Counsel, and Academy of Special Needs Planners. She received a LLM in Elder Law from Stetson College of Law in Florida. Donna J. Jackson has taught estate planning at Oklahoma City University School of Law. She has taught probate, estate planning and tax courses at local colleges. Donna J. Jackson has written numerous programs and articles on probate, estate planning, trusts, and special needs. She speaks at various continuing legal education seminars on estate planning, probate, tax and elder law.

2 Introduction According to the AARP, based on the current U.S. Census, 4.9 million children under the age of 18 live with grandparents. Approximated 20% of those children have no parents in the home and the grandparents are responsible for providing for the needs for the grandchildren. Grandparents have certain legal rights. In addition, grandparents have legal issues that requires compenent legal advise to protect the grandparents, grandchildren and all parties involved. The legal issues include: parent. 1. Visitation with the grandchildren in event of death or divorce of the natural 2. Custody of the grandchildren-temporary or permanent. 3. Guardianship of the grandchildren. 4. Adoption of the grandchildren. 5. Estate planning for the grandparents to protect the grandchildren. Visitation Over 40 years ago, grandparent visitation rights and the visitation rights of other nonparents did not exist. Today, every state has created statutes to govern the visitation rights of grandparents and certain other nonparents, such as foster parents, caregivers or stepparents. These visitation laws grant grandparents and these nonparents the legal right to visit a child. Each state has incorporated statutory guidelines for granting visitation rights to grandparents. The intent of granting grandparent visitation rights is to allow grandparents to maintain contact with grandchildren.

3 In Oklahoma, a court may grant visitation rights if visitation is in the child's best interest. Pursuant to 43 O.S , grandparents may petition for visitation rights of grandchildren under certain circumstances. In Oklahoma, grandparents may be granted visitation if the court deems it in the best interest of the child. In addition, the grandparent must show either parental unfitness, or that the child would suffer harm in the absence of visitation. There must be preexisting relationship between the grandparent and the grandchild is necessary for visitation. In other words, the grandparents and grandchildren have a "strong, continuous grandparental relationship." In order to prove the 'best interest of the child", the grandparents must show: The importance to the child of continuing a preexisting relationship with the grandparent The age and reasonable preference of the child The willingness of the grandparent to encourage a close parent-child relationship The length, quality and intimacy of the preexisting grandparental relationship The emotional ties between the parent and child The motivation and efforts of the grandparent to continue the grandparental relationship The parental motivation for denying visitation The mental and physical health of the grandparent The mental and physical health of the child

4 The mental and physical health of the parent The permanence and stability of the family unit and environment. The moral fitness of the parties The character and behavior of any other person who resides in or frequents the homes of the parties. The quantity of visitation time requested and any adverse impact it would have on the child's customary activities If both parents are dead, the benefit in maintaining the preexisting relationship. Grandparents must prove parental unfitness in a suit for grandparent visitation. These factors include the following: Chemical or alcohol dependency, untreated or unsuccessfully treated A history of violent behavior or domestic abuse An emotional or mental illness that impairs judgment or impairs the capacity to recognize reality or to control behavior A failure to provide the child with proper care, guidance and support Any other condition making the parent unable or unwilling to give a child reasonable parental care.

5 Grandparents Custody of Grandchildren Grandparents can be awarded custody of their grandchild or grandchildren under certain circumstances. However, there will need to be a compelling reason for grandparents to be awarded custody if either parent of the child is alive and capable of or interested in parenting the child. There is a strong presumption in favor of a parent's right to be a parent. Grandparents will have a strong burden of proof to meet if they wish to obtain custody while the child has living parents. Showing that the child is in potential or actual danger of suffering some harm from being with the parents. For example, if a child is in an abusive home or if the child's parent is addicted to drugs or alcohol, the grandparents may be able to show the court that the parent is unfit and that custody should be taken away and awarded to the grandparents instead. In such custody lawsuits, the burden of proof will be placed on the grandparent to show the lack of fitness of the custodial parents. It will be up to the judge to make the decision about your grandchild's best interests. In the event that one parent of the child passes away, custody of the child will normally be awarded to the other parent, even if that parent did not have prior custody, unless that surviving parent doesn't want custody or not capable of providing a home for the child. If both parents are deceased or that the sole living parent doesn't want the child

6 custody is normally awarded to a close blood relative. This doesn't necessarily mean that the grandparents will get the child. In some cases, a sibling or other blood relative may be awarded custody. In order to avoid such custody disputes, parents often make a will dictating who will receive guardianship of the children in the event of an untimely death. When a will is in place naming a guardian, courts will generally respect the parents' custody wishes, again unless there is a compelling reason to not do so in the form of possible harm or danger to the child. 43 O.S governs custody of minor children. Pursuant to the statute, Custody or guardianship of a child may be awarded to: 1. A parent or to both parents jointly; 2. A grandparent; 3. A person who was indicated by the wishes of a deceased parent; 4. A relative of either parent; 5. The person in whose home the child has been living in a wholesome and stable environment including but not limited to a foster parent; or 6. Any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. Guardianship Grandparents raising grandchildren should seek guardianship, either temporary or permanent guardianship. If the natural parent is suffering some short-term problem, the grandparent may want only to seek temporary guardianship. There are issues involving temporary guardianship.

7 If the natural parent consents to the guardianship, the legal process will be smoother than if the parent s contest to the guardianship. Most schools will want the grandparent s to obtain guardianship of the grandchildren in order to enroll them in school. Pursuant to 30 O.S , if there is no parent, the guardian has control of educational decisions. Natural parent is the person who can make medical decisions for his or her child. A grandparent does not have the legal right to make medical decisions for a grandchild. Grandparents should seek guardianship in order to make medical and other decisions for their minor grandchildren. 30 O.S governs guardianship of a minor child. The statute provides for the procedure that must be followed to obtain guardianship. The first step is the filing of a petition requesting the appointment of guardian of person and property of the minor child. In addition, the statute provides that a home study may be ordered. Notice of Hearing of the hearing must be given to the then-living parents of the minor and any other person having custody of the minor, if such parent or person is not one of the petitioners. If the minor has no then-living parent, then to one of the thenliving grandparents who is not one of the petitioners and who is not married to one of the petitioners. If there is no such then-living grandparent or if there is no such thenliving grandparent whose address is known to the petitioner, then notice shall be given to an adult relative, if any, of the minor residing in the county in which the petition was filed. Such notice shall be mailed to each person, entitled to notice pursuant to this section, at that person's address as last-known to the petitioner, at least ten (10) days

8 prior to the date set by the court for hearing on the petition. The court may direct a shorter notice period if the court deems such shorter notice period to be appropriate under the circumstances. If there is no person other than the minor who is entitled to notice, or if the address of any person, other than the minor, who is entitled to notice is not known to the petitioner, the petition shall so allege. The court may direct that notice, other than notice to the minor if the minor has attained the age of fourteen (14), be waived or be given to any person or persons other than the minor in such manner as the court determines and directs. Pursuant to 30 O.S , if the minor is under the age of fourteen (14) years, the court may name and appoint his guardian. If the minor has attained the age of fourteen (14) years, the minor may nominate his own guardian, who, if approved by the court, must be appointed accordingly. In June 2010, a new statute went into effect that provides for the guardianship of abandoned children by qualified relatives. Pursuant to 30 O.S , the court of each county, when it appears necessary or convenient, may grant a qualified relative custody by abandonment of a minor or minors who have been abandoned, in the care of the qualified relative if the minor is residing full-time with the qualified relative and the qualified relative contributes the major degree of support for the minor; and the qualified relative is unable to contact the parent or parents or person or persons having legal custody of the minor, or the parent or parents or other person or persons having legal custody of the minor fail to or refuse to regain physical custody of the minor after a written request to do so by the qualified relative.

9 A "qualified relative" means an adult grandparent, great-grandparent, brother, sister, half-brother, half-sister, uncle, aunt, niece or nephew or a spouse of a qualified relative. A qualified relative who is granted custody by abandonment shall have the same rights to arrange for, authorize, and consent to day care services, medical, psychological, dental, and educational assessment and services, and any other services that may be necessary to provide for the care, treatment, education, and welfare of the minor or minors that are given to legal guardians by the Oklahoma Guardianship and Conservatorship Act except that such relative may not consent to an adoption of the minor or minors. Grandparent Adoption Grandparents who have had long-term custody or guardianship of a grandchild should consider adoption. Adoption provides protection from natural parents or other relatives from seeking seeking custody or guardianship away from grandparent. It provides legal rights and potential benefits to adopted grandchild in case of death-social security benefits; coverage under medical insurance of grandparent if insurance provides coverage for minor children and military benefits. Adoption provides emotional benefits for both grandparent and grandchild. Estate Planning by Grandparents Grandparents raising grandchildren should consult an attorney and have their estate planning updated. A complete estate plan should include a living trust, wills, finacial durable power of attorneys, health care power of attorneys and advanced directives.

10 The trust should provide for successor trustees who will manage the trust for the benefit of the grandparents and grandchildren in the event of incapacity or death of the grandparent. Grandparents should consider what benefits the grandchild should receive from the trust. They need to think about at what age will the grandchildren be old enough to handle money and assets. In addition, the durable power of attorney and will should name guardian of the grandchildren in the event of incapacity or death of the grandparent.

11 43 O.S A. 1. Pursuant to the provisions of this section, any 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 of the child if: a. the district court deems it to be in the best interest of the child pursuant to subsection E of this section, and b. there is a showing of parental unfitness, or the grandparent has rebutted, by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child, and c. the intact nuclear family has been disrupted in that one or more of the following conditions has occurred: (1) an action for divorce, separate maintenance or annulment involving the grandchild's parents is pending before the court, and the grandparent had a preexisting relationship with the child that predates the filing of the action for divorce, separate maintenance or annulment, (2) the grandchild's parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled, (3) the grandchild's parent who is a child of the grandparent is deceased, and the grandparent had a preexisting relationship with the child that predates the death of the deceased parent unless the death of the mother was due to complications related to the birth of the child, (4) except as otherwise provided in subsection C or D 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, (5) one of the grandchild s parents has had a felony conviction and been incarcerated in the Department of Corrections and the grandparent had a preexisting relationship with the child that predates the incarceration, (6) 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, (7) 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, (8) except as otherwise provided in subsection D of this section, the grandchild's parents have never been married, are not residing in the same household and there exists a strong, continuous grandparental relationship between the grandparent and the child, or (9) except as otherwise provided by subsection D 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.

12 2. 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. B. Under no circumstances shall any judge grant the right of visitation to any grandparent if the child is a member of an intact nuclear family and both parents of the child object to the granting of visitation. C. If one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings shall not terminate any preexisting court-granted grandparental rights belonging to the parents of the deceased natural parent unless the termination of visitation rights is ordered by the court having jurisdiction over the adoption after opportunity to be heard, and the court determines it to be in the best interest of the child. D. 1. If the child has been born out of wedlock and the parental rights of the father of the child have been terminated, the parents of the father of the child shall not have a right of visitation authorized by this section to the child unless: a. the father of the child has been judicially determined to be the father of the child, and b. the court determines that a previous grandparental relationship existed between the grandparent and the child. 2. If the child is born out of wedlock and the parental rights of the mother of the child have been terminated, the parents of the mother of the child shall not have a right of visitation authorized by this section to the child unless the court determines that a previous grandparental relationship existed between the grandparent and the child. 3. Except as otherwise provided by this section, the district court shall not grant to any grandparent of an unmarried minor child, visitation rights to that child: a. subsequent to the final order of adoption of the child; provided however, any subsequent adoption proceedings shall not terminate any prior court-granted grandparental visitation rights unless the termination of visitation rights is ordered by the court after opportunity to be heard and the district court determines it to be in the best interest of the child, or b. if the child had been placed for adoption prior to attaining six (6) months of age. E. 1. In determining the best interest of the minor child, the court shall consider and, if requested, shall make specific findings of fact related to the following factors: a. the needs of and importance to the child for a continuing preexisting relationship with the grandparent and the age and reasonable preference of the child pursuant to Section 113 of Title 43 of the Oklahoma Statutes, b. the willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents, c. the length, quality and intimacy of the preexisting relationship between the child and the grandparent, d. the love, affection and emotional ties existing between the parent and child, e. the motivation and efforts of the grandparent to continue the preexisting relationship with the grandchild,

13 f. the motivation of parent or parents denying visitation, g. the mental and physical health of the grandparent or grandparents, h. the mental and physical health of the child, i. the mental and physical health of the parent or parents, j. whether the child is in a permanent, stable, satisfactory family unit and environment, k. the moral fitness of the parties, l. the character and behavior of any other person who resides in or frequents the homes of the parties and such person s interactions with the child, m. the quantity of visitation time requested and the potential adverse impact the visitation will have on the customary activities of the child, and n. if both parents are dead, the benefit in maintaining the preexisting relationship. 2. For purposes of this subsection: a. "harm or potential harm" means a showing that without court-ordered visitation by the grandparent, the child s emotional, mental or physical well-being could reasonably or would be jeopardized, b. "intact nuclear family" means a family consisting of the married father and mother of the child, c. "parental unfitness" includes, but is not limited to, a showing that a parent of the child or a person residing with the parent: (1) has a chemical or alcohol dependency, for which treatment has not been sought or for which treatment has been unsuccessful, (2) has a history of violent behavior or domestic abuse, (3) has an emotional or mental illness that demonstrably impairs judgment or capacity to recognize reality or to control behavior, (4) has been shown to have failed to provide the child with proper care, guidance and support to the actual detriment of the child. The provisions of this division include, but are not limited to, parental indifference and parental influence on his or her child or lack thereof that exposes such child to unreasonable risk, or (5) demonstrates conduct or condition which renders him or her unable or unwilling to give a child reasonable parental care. Reasonable parental care requires, at a minimum, that the parent provides nurturing and protection adequate to meet the child s physical, emotional and mental health. The determination of parental unfitness pursuant to this subparagraph shall not be that which is equivalent for the termination of parental rights, and d. "preexisting relationship" means occurring or existing prior to the filing of the petition for grandparental visitation.

14 F. 1. The district courts are vested with jurisdiction to issue orders granting grandparental visitation rights and to enforce visitation rights, upon the filing of a verified petition for visitation rights or enforcement thereof. Notice as ordered by the court shall be given to the person or parent having custody of the child. The venue of such action shall be in the court where there is an ongoing proceeding that involves the child, or if there is no ongoing proceeding, in the county of the residence of the child or parent. 2. When a grandparent of a child has been granted visitation rights pursuant to this section and those rights are unreasonably denied or otherwise unreasonably interfered with by any parent of the child, the grandparent may file with the court a motion for enforcement of visitation rights. Upon filing of the motion, the court shall set an initial hearing on the motion. At the initial hearing, the court shall direct mediation and set a hearing on the merits of the motion. 3. After completion of any mediation pursuant to paragraph 2 of this subsection, the mediator shall submit the record of mediation termination and a summary of the parties' agreement, if any, to the court. Upon receipt of the record of mediation termination, the court shall enter an order in accordance with the parties' agreement, if any. 4. Notice of a hearing pursuant to paragraph 2 or 3 of this subsection shall be given to the parties at their last-known address or as otherwise ordered by the court, at least ten (10) days prior to the date set by the court for hearing on the motion. Provided, the court may direct a shorter notice period if the court deems such shorter notice period to be appropriate under the circumstances. 5. Appearance at any court hearing pursuant to this subsection shall be a waiver of the notice requirements prior to such hearing. 6. If the court finds that visitation rights of the grandparent have been unreasonably denied or otherwise unreasonably interfered with by the parent, the court shall enter an order providing for one or more of the following: a. a specific visitation schedule, b. compensating visitation time for the visitation denied or otherwise interfered with, which time may be of the same type as the visitation denied or otherwise interfered with, including but not limited to holiday, weekday, weekend, summer, and may be at the convenience of the grandparent, c. posting of a bond, either cash or with sufficient sureties, conditioned upon compliance with the order granting visitation rights, or d. assessment of reasonable attorney fees, mediation costs, and court costs to enforce visitation rights against the parent. 7. If the court finds that the motion for enforcement of visitation rights has been unreasonably filed or pursued by the grandparent, the court may assess reasonable attorney fees, mediation costs, and court costs against the grandparent. G. In addition to any other remedy authorized by this section or otherwise provided by law, any party violating an order of the court made pursuant to this section, upon conviction thereof, shall be guilty of contempt of court. H. Any transportation costs or other costs arising from any visitation ordered pursuant to this section shall be paid by the grandparent or grandparents requesting such visitation.

15 I. In any action for grandparental visitation pursuant to this section, the court may award attorney fees and costs, as the court deems equitable. J. For the purposes of this section, the term "grandparent" shall include "great-grandparent". 43 O.S A. Custody or guardianship of a child may be awarded to: 1. A parent or to both parents jointly; 2. A grandparent; 3. A person who was indicated by the wishes of a deceased parent; 4. A relative of either parent; 5. The person in whose home the child has been living in a wholesome and stable environment including but not limited to a foster parent; or 6. Any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. B. In applying subsection A of this section, a court shall award custody or guardianship of a child to a parent, unless a nonparent proves by clear and convincing evidence that: 1. For a period of at least twelve (12) months out of the last fourteen (14) months immediately preceding the commencement of the custody or guardianship proceeding, the parent has willfully failed, refused, or neglected to contribute to the support of the child: a. in substantial compliance with a support provision or an order entered by a court of competent jurisdiction adjudicating the duty, amount, and manner of support, or b. according to the financial ability of the parent to contribute to the support of the child if no provision for support is entered by a court of competent jurisdiction, or an order of codification subsequent thereto. For purposes of this paragraph, incidental or token financial contributions shall not be considered in establishing whether a parent has satisfied his or her obligation under subparagraphs a and b of this paragraph; or 2. a. the child has been left in the physical custody of a nonparent by a parent or parents of the child for one (1) year or more, excluding parents on active duty in the military, and

16 b. the parent or parents have not maintained regular visitation or communication with the child. For purposes of this paragraph, incidental or token visits or communications shall not be considered in determining whether a parent or parents have regularly maintained visitation or communication. C. In applying subsection A of this section, a court shall award custody or guardianship of a child to a parent, unless the court finds that the parent is affirmatively unfit. There shall be a rebuttable presumption that a parent is affirmatively unfit if the parent: 1. Is or has been subject to the registration requirements of the Oklahoma Sex Offenders Registration Act or any similar act in any other state; 2. Has been convicted of a crime listed in Section 582 of Title 57 of the Oklahoma Statutes; 3. Is an alcohol-dependent person or a drug-dependent person as established by clear and convincing evidence and who can be expected in the near future to inflict or attempt to inflict serious bodily harm to himself or herself or another person as a result of such dependency; 4. Has been convicted of domestic abuse within the past five (5) years; 5. Is residing with a person who is or has been subject to the registration requirements of the Oklahoma Sex Offenders Registration Act or any similar act in any other state; 6. Is residing with a person who has been convicted of a crime listed in the Oklahoma Child Abuse Reporting and Prevention Act or in Section 582 of Title 57 of the Oklahoma Statutes; or 7. Is residing with a person who has been convicted of domestic abuse within the past five (5) years. D. Subject to subsection E of this section, a custody determination made in accordance with subsections B and C of this section shall not be modified unless the person seeking the modification proves that: 1. Since the making of the order sought to be modified, there has been a permanent, material, and substantial change of conditions that directly affects the best interests of the child; and 2. That as a result of such change of circumstances, the child would be substantially better off with regard to its temporal, mental, and moral welfare if custody were modified.

17 E. If the custody determination made in accordance with subsections B and C indicates that custody is temporary, the determination may be modified upon a showing that the conditions which led to the custody or guardianship determination no longer exist. 30 O.S The court of each county, when it appears necessary or convenient, may appoint guardians for the persons and estates, or either, or both of them, of minors. B. Such appointment may be made on the verified petition of a relative or other person in behalf of such minor. C. 1. Before making the appointment, the court may receive an investigation and report regarding the background and home of the prospective guardian. The investigation and report of the prospective guardian and placement restrictions and requirements shall be made pursuant to the requirements of the Oklahoma Adoption Code. In determining whether to require a home study pursuant to the provisions of this paragraph, the court shall balance the need for a home study to protect the best interests of the minor with the ability of the prospective guardian to pay for the home study. 2. a. Costs of the home study shall be assessed against any private child-placing agency having custody of the child, or the person having legal custody of the child or the prospective guardians of the child. b. (1) For any child in the custody of the Department of Human Services or the Department of Juvenile Justice, the applicable Department shall conduct or provide for the home study for such child as required by the Oklahoma Children s Code or the Oklahoma Juvenile Code. (2) The Department of Human Services or the Department of Juvenile Justice shall not be required by any court to conduct or provide for a home study and report to the court on guardianship placements for any child that is not in the custody of either Department. 3. An order appointing a guardian of the minor who has a parent living or other person legally responsible for the child shall comply with the provisions of Section of this title. D. In addition, before making the appointment, the court must cause notice of the hearing on the petition for appointment of a guardian for a minor to be given in the form required by the court to the minor if the minor has attained the age of fourteen (14) as of the date the petition is filed. The court shall also cause notice to be sent to the following persons: 1. The then-living parents of the minor and any other person having custody of the minor, if such parent or person is not one of the petitioners;

18 2. If the minor has no then-living parent, then to one of the then-living grandparents who is not one of the petitioners and who is not married to one of the petitioners; and 3. If there is no such then-living grandparent or if there is no such then-living grandparent whose address is known to the petitioner, then notice shall be given to an adult relative, if any, of the minor residing in the county in which the petition was filed. E. Such notice shall be mailed to each person, entitled to notice pursuant to this section, at that person's address as last-known to the petitioner, at least ten (10) days prior to the date set by the court for hearing on the petition. Provided the court may direct a shorter notice period if the court deems such shorter notice period to be appropriate under the circumstances. If there is no person other than the minor who is entitled to notice, or if the address of any person, other than the minor, who is entitled to notice is not known to the petitioner, the petition shall so allege. The court may direct that notice, other than notice to the minor if the minor has attained the age of fourteen (14), be waived or be given to any person or persons other than the minor in such manner as the court determines and directs. 30 O.S Grant of Custody of Abandoned Minors to Qualified Relative - Rights - Forms - Notice - Reports and Investigations - Accounting - Filing Fees - Letters of Custody by Abandonment - Recovery to Parents - Cessation of Custody - Report to DHS Cite as: 30 O.S A. The court of each county, when it appears necessary or convenient, may grant a qualified relative custody by abandonment of a minor or minors who have been abandoned, as defined by Section of Title 10A of the Oklahoma Statutes, in the care of the qualified relative if: 1. The minor is residing full-time with the qualified relative and the qualified relative contributes the major degree of support for the minor; and 2. The qualified relative is unable to contact the parent or parents or person or persons having legal custody of the minor, or the parent or parents or other person or persons having legal custody of the minor fail to or refuse to regain physical custody of the minor after a written request to do so by the qualified relative. B. For purposes of this section, a "qualified relative" means an adult grandparent, greatgrandparent, brother, sister, half-brother, half-sister, uncle, aunt, niece or nephew or a spouse of a qualified relative.

19 C. A qualified relative who is granted custody by abandonment shall have the same rights to arrange for, authorize, and consent to day care services, medical, psychological, dental, and educational assessment and services, and any other services that may be necessary to provide for the care, treatment, education, and welfare of the minor or minors that are given to legal guardians by the Oklahoma Guardianship and Conservatorship Act except that such relative may not consent to an adoption of the minor or minors. D. Custody by abandonment shall be made on the verified petition of a qualified relative and shall be substantially in the following form: PETITION FOR CUSTODY BY ABANDONMENT Comes Now the Petitioner,, and informs the Court as follows: 1. That I am now a resident in good faith of County, and the State of Oklahoma for at least six (6) months prior to the filing of this petition. 2. That my home address is. 3. That my date of birth is. 4. That my Oklahoma driver license or other identification card number is. 5. That is/are minor child(ren) years of age, respectively, having the following date(s) of birth:. 6. That I am related to the child(ren) as his/her/their. 7. That the child(ren) has/have been living in my home since the day of, 20. Prior to this date, the child(ren) resided at the following address and in the following county and state:. 8. That the Court has jurisdiction in this action to make a child custody determination pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, Sections through of Title 43 of the Oklahoma Statutes in that Oklahoma is the home state of the minor child(ren). A Uniform Child Custody Jurisdiction and Enforcement Act Affidavit is attached to this petition. 9. That the minor child(ren) is/are not Indian children within the meaning of the Federal or State Indian Child Welfare Acts.

20 10. That (check one) ( ) I am unable to contact or locate either parent of the child(ren) or other person(s) having legal custody of the child(ren) at this time. ( ) I made a written request to the child(ren) s parent(s) or other person(s) having legal custody of the child(ren) on the day of, 20, to regain physical custody of the child(ren), and said custodian has failed to regain custody or such request has been refused. 11. That, at this time, I do/do not (choose one) intend to seek child support from the child(ren) s parent(s) or legal guardian(s). 12. That granting Petitioner care and custody by abandonment is necessary to provide for the general welfare of the child(ren) and to allow Petitioner to authorize medical, dental, educational, child care and/or other services for the child(ren). 13. That I hereby accept care and custody of the child(ren). I will exercise continuing general supervision of the child(ren). 14. That I am qualified to be granted care and custody by abandonment. I further inform the Court that I am not a minor, incapacitated person or partially incapacitated person. Attached to this petition is a completed Oklahoma Sex Offenders Registration Act Affidavit. There are no conflicts of interest that would preclude or be substantially detrimental to my ability to act in the best interest(s) of the minor child(ren). WHEREFORE, the Petitioner prays the Court to grant Petitioner care and custody by abandonment and issue Letters of Custody by Abandonment upon the taking of the oath. Signature of Attorney or Pro Se Petitioner Printed Name Address Verification State of Oklahoma ) ) SS.

21 County of ) I,, of lawful age, being first duly sworn upon oath depose and state that I am the Petitioner named above; that I have read the foregoing Petition and understand its contents; that I hereby state that the facts set forth in the foregoing Petition are true and correct to the best of my knowledge and belief. Signature of Petitioner Subscribed and sworn to before me this day of, 20. Notary Public My Commission Number is: My Commission Expires: E. Affidavits attesting to the compliance of the guardian with the Uniform Child Custody Jurisdiction and Enforcement Act and the Oklahoma Sex Offenders Registration Act shall be attached to the petition and shall be substantially in the following forms: Uniform Child Custody Jurisdiction And Enforcement Act Affidavit STATE OF OKLAHOMA ) ) SS COUNTY OF )

22 I,, of lawful age, am the Petitioner in the above-styled and numbered guardianship proceeding, being first duly sworn upon oath, depose and state: 1. The minor(s),,, presently live at (city), (state), (zip). 2. The minor(s) has/have lived at the following address during the last five (5) years: Name Address City State Zip Date 3. I have/have not participated as a party, witness or otherwise been involved in a legal proceeding concerning the custody of, or visitation with, said minor(s). If you have, list the Court, the case number(s) and the date(s) of participation: Court Case Number Dates 4. I have knowledge of the following proceeding pertaining to a divorce of the minor s(s ) parents, custody proceeding(s) concerning this/these minor(s) proceedings concerning domestic violence or abuse, protective orders, termination of parental rights, adoptions or Department of Human Services or other proceedings. Court Case Number Dates

23 5. I have knowledge that the following named persons claim a right to custody or a right to visitation with said minor. Name Address City State Zip Date 6. I acknowledge that I have a continuing duty under the law to inform the Court, in writing, of any additional information acquired by me after executing this "Affidavit". Signature: Print Name: Petitioner Subscribed and sworn to before me this day of,. Court Clerk / Notary Public My Commission Number: My Commission Expires: Oklahoma Sex Offenders Registration Act Affidavit I am not a person subject to registration under the Oklahoma Sex Offenders Registration Act. I am not married to or living with such a person, or a person who has been convicted of, or has charges pending for, a felony or any relevant misdemeanor, nor has anyone living with me or

24 frequently present in my home previously been convicted of, or has charges pending for, a relevant felony or misdemeanor. That as guardian of the above minor child(ren) under no circumstances shall I permit the child to be left in the custody of a person who is known to me to be subject to registration under the Oklahoma Sex Offenders Registration Act. Nor shall I permit the children to be left in the custody of a person married or living with such a person, or with any individual who has been convicted of any crime involving domestic abuse. Nor shall these children be placed in the custody of a person who has previously been convicted of, or has charges pending for, a relevant felony or misdemeanor. Petitioner Subscribed and sworn to before me on this day of. Court Clerk or Notary Public My Commission Number: My Commission Expires: F. The provisions for satisfying notice requirements and receiving reports and investigations shall be identical to those provided for under subsection C of Section of Title 30 of the Oklahoma Statutes. G. The annual accounting requirements for custody by abandonment shall be identical to the accounting requirements provided in Section of Title 30 of the Oklahoma Statutes. H. The filing fees in matters pertaining to custody by abandonment shall not exceed the fees for matters pertaining to relative guardianship under Section of Title 30 of the Oklahoma Statutes. I. If after consideration, the court finds that granting custody by abandonment to a qualified relative is in the best interest of the child, the court shall issue an order granting said relative custody by abandonment. A qualified relative who is granted custody by abandonment shall be issued Letters of Custody by Abandonment. Letters of Custody by Abandonment shall specify that the guardian shall have the authority to consent to medical services and shall be

25 indemnified from personal liability for medical services provided to the child or children. Custody by abandonment shall take effect upon taking of an oath by the qualified relative. J. 1. A minor who is in the permanent care of the qualified relative granted care and custody by abandonment and who is either: a. twenty-four (24) months of age or less and who has been abandoned for at least six (6) months in the physical care of the qualified relative, or b. over twenty-four (24) months of age and who has been abandoned for a period of twelve (12) months out of the last fourteen (14) months in the physical care of the qualified relative, may not be reclaimed or recovered to the parent or parents or other person or persons having legal custody of the minor who abandoned the minor except through order of a court of competent jurisdiction or by voluntary release of the minor by the qualified relative. 2. Upon any action to determine the custody of the minor pursuant to the provisions of this subsection, the court shall base its findings and determination of custody on the best interests of the minor and: a. the duration of the abandonment and integration of the minor into the home of the relative, b. the preference of the minor if the minor is determined to be of sufficient maturity to express a preference, c. the mental and physical health of the minor, and d. such other factors as are deemed necessary in the particular circumstances. 3. During the pendency of any action to determine the custody of a minor pursuant to this subsection, unless it is determined not to be in the best interests of the minor, the minor shall remain in the custody of the qualified relative who has accepted custody by abandonment. 4. If the court orders the minor be returned to the minor s parent or parents or other legal guardian, the court may provide for a transitional period for the return in the best interest of the minor.

26 K. The provisions of this section shall not apply to the acceptance of care and custody by one parent of the minor from the other parent of the minor. L. 1. Custody by abandonment for a minor ceases upon: a. the minor attaining majority, or attaining the age of nineteen (19) years if the minor is a fulltime student in high school, b. the solemnized marriage of the minor, c. the voluntary relinquishment by the qualified relative granted custody by abandonment, or d. by order of the court. 2. If the minor stops residing with the relative, or if custody by abandonment has been terminated for any reason, the relative shall notify the court issuing the Letters of Custody by Abandonment and any school, health care provider, health care service plan, or other provider that has been given a copy of the Letters of Custody by Abandonment. M. Actions establishing abandonment pursuant to this section shall not be required to be reported to the Department of Human Services under subsection B of Section of Title 10A of the Oklahoma Statutes.