Oklahoma Chapter Parents For Better Family Solutions

Oklahoma Chapter

Parents for Better Family Solutions

About Me

Hi, my name is Susan. My family and I are victims of the Grandparent Visitation Laws in Oklahoma. These laws need to be changed as they violate the rights of fit parents to raise their children and the right of the children to be raised by their fit parents. Please feel free to email me directly at OKLadyBug@aol.com about the problems that you are having with these statutes in OK. If you are not from OK, I may be able to send you to the right area to obtain information for your state as I am a member of the national organization, Parents for Better Family Solutions.

(Jump to More About My Family's Plight, Links)

The Current Statute, HB1725, HB1725 Engrossed and the Troxel Decision Application

Disclaimer: I am not an attorney. So I can not give legal advice. I am including the new law (effective Nov. 1, 2000), HB1725 as introduced, HB1725 Engrossed, and my interpretation of the Troxel Decision applied to these laws.

§10-5 (2001) HB1725 HB1725 Engrossed

Title 10-5 Grandparental Vistation Rights (2001)

A. 1. Pursuant to the provisions of this section, the 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:

a. an action for divorce, separate maintenance or annulment involving the grandchild's parents is pending before the court,

b. the grandchild's parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled,

c. the grandchild's parent who is a child of the grandparent is deceased,

d. except as otherwise provided in subsection B or C 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,

e. 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,

f. 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,

g. except as otherwise provided in subsection C 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,

h. except as otherwise provided by 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

i. at any other time and for such other reason the court deems it to be in the best interests of the child.

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. If one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings shall not terminate any 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.

C. 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 such child shall not have a right of visitation authorized by this section to such child unless:

a. the father of such child has been judicially determined to be the father of the child,

b. the court determines that a previous grandparental relationship existed between the grandparents and the child, and

c. the court determines such visitation rights to be in the best interest of 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 such child shall not have a right of visitation authorized by this section to such child unless:

a. the court determines that a previous grandparental relationship existed between the grandparents and the child, and

b. the court determines such visitation rights to be in the best interest of the child.

3. Except as otherwise provided by this section, the district court shall not grant to the grandparents 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 said 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.

D. 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.

E. 1. The district courts are vested with jurisdiction to issue orders granting grandparental visitation rights and enforce such visitation rights, upon the filing of a verified application for such visitation rights or enforcement thereof. Notice as ordered by the court shall be given to the person or parent having custody of the child and the venue of such action shall be in the county of the residence of such person 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 paragraphs 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,

d. assessment of reasonable attorney fees, mediation costs, and court costs to enforce visitation rights against the parent, or

e. any other remedy the court considers appropriate.

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.

F. 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.

G. 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.

H. In any action for grandparental visitation pursuant to this section, the court may award attorney fees and costs, as the court deems equitable.

I. For the purposes of this section, the term "grandparent" shall include "great-grandparent".

R.L. 1910, § 4368. Amended by Laws 1971, c. 82, § 1, emerg. eff. April 26, 1971; Laws 1975, c. 185, § 1, emerg. eff. May 23, 1975; Laws 1978, c. 71, § 1; Laws 1981, c. 273, § 1; Laws 1984, c. 82, § 1, emerg. eff. April 4, 1984; Laws 1989, c. 211, § 1, eff. Nov. 1, 1989; Laws 1990, c. 206, § 1, emerg. eff. May 14, 1990; Laws 1996, c. 297, § 20, emerg. eff. June 10, 1996.; Amended by Laws 1997, c. 389, § 19, eff. November 01,1997; Amended by Laws 1999, S.B. 264 c. 383. § 1, eff. November 01,1999; Amended by Laws 2000, HB 1983 c. 246. § 1, eff. November 01, 2000.

Application of the Troxel Decision to Title 10-5 (2001)

(To view Troxel Decision, click the link above. Then follow the page through to the Troxel v. Granville Story.)

Once again, this law does not follow Troxel at all! In Paragraph A, it still leaves the decision in the hands of the court based solely upon the best interest of the child(ren). There is no presumption given to FIT parents decision on whom their children should visit. In section A, 1, i. "at any other time and for such other reason the court deems it to be in the best interests of the child" makes this breathtakingly broad and puts the decision solely in the hands of the court therefore making it unconstitutional according to the Troxel Decision. In Paragraph D, where they define the best interest standard there is no deference given to FIT parents' decision as is required by Troxel. In Paragraph H, they are allowing the court to grant attorney fees to the grandparents for bringing the suit against FIT parents. In the Troxel decision, this is discussed but no real decision came out of it. The Justices did not seem to think it was fair for the FIT parents to have to pay attorney fees or other subsequent costs the grandparents forced them into having to pay when they, the grandparents, brought the suit.

Other Problems With Title 10-5 (2001)

There are many other things wrong with this law. It singles out single parents, divorced parents, widows, and widowers. It seems to imply that if you are in one of these categories that you are NOT a fit parent and therefore your decisions in regards to your child do not count. How can anyone be less of a fit parent just because they happen to be in one of these categories?

In Paragraph D, 1. "The willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents;" How can this be included in the determination for best interest of the child? If a grandparent sues the parent, isn't this telling the child that they do not have to do anything that their parents say? Afterall, the grandparent is using the court in this case to override the parents' decision in regards to whom their children shall visit.

In Paragraph D, 2." The length and quality of the prior relationship between the child and the grandparent or grandparents;" Do the courts not realize that the grandparents lie about this? As in my case there was never any prior relationship but the court forced a temporary visitation order on us and thereby creating a relationship to grant such visitation.

It also gives way too much power to the grandparents to enforce such orders. Now, who in their right mind has a parent put in jail for not allowing contact between the child and a grandparent? THIS IS NOT RIGHT! Yes, parents have gone to jail for being found in contempt of not following a visitation order. Look at the Mehring Case out of Illinois or the Brown Case in Kentucky.

There is no way for a parent to enforce the order. If the grandparent decides to not show up for the visit, the parent can not file contempt on the grandparent.

How can any of this truly be in the best interest of the child? Admittedly, if it truly is a vindictive parent (which is NOT the case in 99% of these cases), then the grandparent should have some kind of recourse to still be able to maintain contact with the child. Isn't it more in the best interest of the child to NOT have the government interfering with the rights of the child to be in the care and custody of his/her FIT parent(s)?

There is no reciprocal law allowing parents to sue on behalf of their children when a grandparent is not involved.

Top

(Parts being struck are in <>. Parts being added are underlined. I have tried to maintain the original formatting of this bill as it appears on the Oklahoma House of Representatives webpage but unfortunately the webpage designer I am using has not allowed me to keep it exactly as it appears.)

STATE OF OKLAHOMA

1st Session of the 48th Legislature (2001)

HOUSE BILL HB1725 By: Rice

AS INTRODUCED

An Act relating to grandparent visitation rights; amending 10 O.S. 1991, Section 5, as last amended by Section 1, Chapter 246, O.S.L. 2000 (10 O.S. Supp. 2000, Section 5); expanding conditions in determining the best interest of a minor child; requiring a showing of harm or potential harm in certain situations; defining terms; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

SECTION 1. AMENDATORY 10 O.S. 1991, Section 5 , as last amended by Section 1, Chapter 246, O.S.L. 2000 (10 O.S. Supp. 2000, Section 5 ), is amended to read as follows:

Section 5. A. 1. Pursuant to the provisions of this section, the 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:

a. an action for divorce, separate maintenance or annulment involving the grandchild's parents is pending before the court,

b. the grandchild's parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled,

c. the grandchild's parent who is a child of the grandparent is deceased,

d. except as otherwise provided in subsection B or C 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,

e. 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,

f. 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,

g. except as otherwise provided in subsection C 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,

h. except as otherwise provided by 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

i. at any other time and for such other reason the court deems it to be in the best interests of the child.

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. If one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings shall not terminate any 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.

C. 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 such child shall not have a right of visitation authorized by this section to such child unless:

a. the father of such child has been judicially determined to be the father of the child,

b. the court determines that a previous grandparental relationship existed between the grandparents and the child, and

c. the court determines such visitation rights to be in the best interest of 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 such child shall not have a right of visitation authorized by this section to such child unless:

a. the court determines that a previous grandparental relationship existed between the grandparents and the child, and

b. the court determines such visitation rights to be in the best interest of the child.

3. Except as otherwise provided by this section, the district court shall not grant to the grandparents 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 said 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.

D. 1. In determining the best interest of the minor child, the court shall consider and make specific findings of fact supporting such action:

<1. The>

a. the willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents<;>,

<2. The>

b. the length and quality of the prior relationship between the child and the grandparent or grandparents<;>,

<3. The>

c. the preference of the child if the child is determined to be of sufficient maturity to express a preference<;>,

<4. The>

d. the mental and physical health of the child<;>,

<5. The>

e. the mental and physical health of the grandparent or grandparents<;>,

f. the love, affection and emotional ties existing between the parent and child,

g. the importance of continuity of the grandparent in the child's life,

h. the stability of the family unit of the parent,

i. the mental and physical health of the parent,

j. the reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children,

k evidence of physical or emotional abuse to the child, of one parent to the other parent or to any other person,

l. the character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child, and

<6. Such>

m. such other factors as are necessary in the particular circumstances.

a. In addition to determining the best interest of the child, in granting visitation rights to grandparents pursuant to this section over the objection of both parents, the court shall find that:

(1) the child would suffer harm or potential harm without the granting of visitation rights to the grandparents of the child,

(2) 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, or

(3) the parents of the child are unfit.

b. For purposes of this paragraph:

(1) "harm or potential harm" means a showing that without court-ordered visitation by the grandparents, the child's emotional or physical well-being would be jeopardized, and

(2) "unfit" includes but is not limited to a showing that a parent has:

(a) a chemical or alcohol dependency,

(b) a habitual and/or excessive use of alcohol or drugs,

(c) a history of violent behavior,

(d) committed domestic abuse,

(e) an emotional or mental illness, or

(f) failed to provide the child with proper care, guidance and support.

The determination of "unfitness" pursuant to this division need not be that which is equivalent for the termination of parental rights.

E. 1. The district courts are vested with jurisdiction to issue orders granting grandparental visitation rights and enforce such visitation rights, upon the filing of a verified application for such visitation rights or enforcement thereof. Notice as ordered by the court shall be given to the person or parent having custody of the child and the venue of such action shall be in the county of the residence of such person 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 <paragraphs> 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,

d. assessment of reasonable attorney fees, mediation costs, and court costs to enforce visitation rights against the parent, or

e. any other remedy the court considers appropriate.

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.

F. 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.

G. 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.

H. In any action for grandparental visitation pursuant to this section, the court may award attorney fees and costs, as the court deems equitable.

I. For the purposes of this section, the term "grandparent" shall include "great-grandparent".

SECTION 2. This act shall become effective November 1, 2001.

48-1-5664 KSM 1/30/01

Application of Troxel Decision to HB1725

(To view Troxel Decision, click the link above. Then follow the page through to the Troxel v. Granville Story.)

Section 5. A. 1. and Section 5. A. 2. is in complete violation of the Troxel decision. The court no longer has the authority to grant visitation rights based on the best interest of the child theory. "Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Troxel, 120 S. Ct. "In an ideal world, parents might always seek to cultivate bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And if a parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." Troxel. "As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a "better" decision could be made." Troxel.

Section 5. A. 1. a-i, according to Troxel, a parent can be one of these descriptions and still be considered a fit parent! In Troxel, they upheld Tommie Granville Wynn's right to decide for her children. Mrs. Wynn was an unwed mother who later married thus creating a step-father in the girls lives. The natural father of the girls committed suicide. The USSC decided that none of this affect Mrs. Wynn's ability to decide what was in the best interest of her girls.

Section 5. D. 1. m, This once again violates the parents' fundamental rights by giving the judge the right to override a FIT parents decision on whatever grounds he/she may so choose. See the above quotes to see why a judge can not do this.

Section 5. D. 2. b., The burden of proof according to Troxel falls upon the grandparents. I do not see where this is mandating the grandparents to prove that "harm or potential harm" will occur without grandparent visitation. Without this clause in the statute mandating that the grandparents must prove this, in the trial court level, it will turn into the parents have to prove that harm will happen if the visitation is ordered.

Application of Other Case Laws and Other Problems with This Bill

Section 5. A. 1. and Section 5. A. 2. are also in violation of Neal v Lee, 2000 OK 90, McGuire v Morrison, No 89,148, OK Court of Civil Appeals, Division I, Aug 14, 1998, In re Herbst, 1998 OK 100. In re Herbst, 1998 OK 100, "This Court and the United States Supreme Court have repeatedly recognized that the relationship between a parent and child is fundamental and constitutionally protected right." ""Although the parents' right to rear children without state interference is largely expressed as a 'liberty' interest, the United State Supreme Court has also noted that that right derives from privacy rights inherent in the constitution." Brooks v. Parkerson, 454 S.E. 2d 769, 772 (Ga. 1995), cert. denied 516 U.S. 942, 116 S.Ct. 377 (1995) (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944) and Hawk v. Hawk, 855 S.W. 3d 573, 578-59 n.3 (Tenn. 1993))", In re Herbst. "Without the requisite harm or unfitness, the state's interest does not rise to a level so compelling as to warrant intrusion upon the fundamental rights of parents. Matter of Sherol A.S., 581 P. 2d at 888", In re Herbst. "It is important to recognize that mandating the introduction of a third party, even a grandparent, into a family unit is state action limiting the parents' liberty.", In re Herbst. "However, a vague generalization about the positive influence many grandparents have upon their grandchildren falls far short of the necessary showing of harm which would warrant the state's interference with this parental decision regarding who may see a child.", In re Herbst. "If operating over the objection of fit parents, grandparental visitation may be imposed only upon a showing that the child would suffer harm without it. Id.", In re Herbst. "Absent a showing of harm, (or threat thereof) it is not for the state to choose which associations a family must maintain and which the family is permitted to abandon.", In re Herbst. "Therefore, equity is subject to the United Statess and Oklahoma constitutions and may not exceed the protections and privacy therein assured to families. Mandating grandparental visitation in this case, whether by statute or equity, would violate the federal and state constitutions.", In re Herbst. "As the court declares today, the relationship between parent and child must indeed be treated as paramount. It warrants judicial protection.", In re Herbst. "Nelson v Nelson, 1998 OK 10, 954 P. 2d 1219 ("liberty interest of the parent must be balanced against the best interests of the child," "child's interest are paramount," and a parent's inconvenience subordinated to the need to protect the child's welfare)", McGuire v. Morrison, No. 89,148, OK Court of Civil Appeals, Division I, August 14, 1998. "That said, however, in the context of weighing parents' rights against those Of their child(ren)'s grandparents to visitation, at least one other state has held that grandparents' rights to visitation are not co-extensive or equal with those of a parent.", McGuire v. Morrison. "Recognizing a grandparent's right to visitation is not co-equal with that of a parent, we want.find the trial court's order for grandparental visitation in the present case, granting Grandparents every other weekend and extended summer visitation akin to that of a non-custodial parent, excessive and affected by an abuse of discretion,", McGuire v. Morrison. "We find under Troxel, grandparent visitation in the present case violated Kristina Nesvold's federal constitutional rights as the mother of Joshua, Whitney, and Hunter and Keehan Nesvold's constitutional rights as the father of Whitney and Hunter.", Neal v. Lee, 2000 OK 90.

Section 5. A. 1. a-i, why is it presumed that a person that is divorced or has lost their spouse is somehow less of a parent? That because of these unfortunate circumstances, they are somehow unfit? "Joshua's father's death does not affect Kristina Nesvold's fitness as a mother nor alter her constitutionally protected rights to rear her child without state interference." Neal v. Lee, 2000 OK 90.

Section 5. B. Why is step-parent adoption somehow different than a complete stranger adoption? When the papers are finished, the natural parent no longer has any rights to the child. There is no inheritance from that natural parent's parents or the natural parent that the child can inherit. All ties to that side of the family are cut off once the termination of the parental rights are complete. By creating a grandparent visitation statute that allows the grandparent to maintain ties with this child violates the Adoption Codes on step-parent adoptions. This grandparent is no longer legally related to this child. The step-parent that has adopted is granted in that order ALL the rights afforded a natural parent.

Section 5. D. 1. a., Just by suing a child's parent should be evidence enough that this grandparent is not going to do anything but intervene in the parent-child relationship. How encouraging to that relationship does it appear to the child when the child knows mom or dad or both are being drug through court by the grandparent? Just by suing the parent, the grandparent creates additional unwarranted stress in the home.

Section 5. D. 1. f., Can this really be measured?

Section 5. D. 1. g, What is the criteria for this? Is it really important that a child have this? Afterall, there have been many more generations of people that did not have influence from grandparents than those that have had.

Section 5. D. 1. i. Just what does this have to do with whether or not a court should grant grandparental visitation? If a parent is receiving help for depression this some how makes them less of a parent?

Section 5. D. 1. l. Once again, what is the criteria for this? Why is it important to the court what other people a custodial parent may have in their home as long as the parent is fit? Is this not a violation to the rights of privacy in one's home?

Section 5. D. 1. m. This is entirely too vague. It leaves it open for the judge to just decide he/she thinks they have a better decision and violate a parent's fundamental rights to that parent's child(ren). See the above quotes for Sections 5. A. 1. and A. 2. for the reasons why a judge can not do this.

Section 5. D. 2. a. (2), If the grandparent had custody of the child, why does the grandparent no longer have custody? If the grandparent lost custody, would it be a good thing to force a child to spend time with this grandparent? There is definitely a very good reason why this grandparent no longer has custody and therefore it can NOT possibly be in the best interest of the child to be forced into still spending time with this child.

Section 5. D. 2. b. (1), And how is a grandparent going to prove that harm or potential harm will occur without violating the rights to privacy in one's own home? That is provided that a clause is added here that mandates the grandparents have the burden of proof. How do you show emotional harm?

Section 5. D. 2. b. (2), This definition of "unfit" is absolutely APPALLING! It leaves the door wide open for abuse of this statute. Any grandparent that disagrees in any way with the way a "FIT" parent is raising their child(ren) can us this to sue the "FIT" parent. Why shouldn't the requirement be the same as it is for the State to remove children from the home? The way this is written a grandparent could take a parent to court claiming that the parent is not providing proper care, guidance and support solely because the grandparent believes that the child should not play a sport and the parent is allowing the child to play a sport. Why do they presume that if a parent has an emotional or mental illness that this makes the parent unfit? I think if they have these and are NOT receiving treatment, there may be a basis for unfitness here. But the way this is worded is that even if you are receiving treatment you are unfit! What exactly is meant by "committed domestic abuse?" Does this mean if a woman marries a man that his former wife filed all kinds of false allegations against him but he was never convicted and everything was dropped but there are still police records of such, that the grandparents get visitation based solely on that?

Section 5. E. 2. This is ridiculous as well. These grandparents that use these laws are notorious for filing contempt charges on the parents. I had contempt filed on me twice after the grandmother started the conflict! Currently, there are 3 families in the US that I know of that are serving jail time because of standing up for their constitutional rights! What about the parent being able to file contempt on the grandparent for violating the court order? There is no protection for the parent to make sure the grandparent follows the order. The grandparent takes you to court and gets the visitation but then doesn't show up for all the scheduled visits. The parent has no recourse of taking the grandparent back to court on contempt. The only thing a parent can do is ask that the order be modified or vacated. Then the order will just go to whatever time the grandparent has been using. But the grandparent can disobey the court order and not be held in contempt!

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(Parts being struck are in <>. Parts being added are underlined. I have tried maintain the original formatting of this bill as it appears on the Oklahoma House of Representatives webpage but unfortunately the webpage designer I am using has not allowed me to keep it exactly as it appears.)

ENGROSSED HOUSE BILL NO. 1725 By: Rice of the House and Easley of the Senate

( grandparent visitation rights - amending 10 O.S., Section 5 - best interest of a minor child - effective date )

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

SECTION 1. AMENDATORY 10 O.S. 1991, Section 5, as last amended by Section 1, Chapter 246, O.S.L. 2000 (10 O.S. Supp. 2000, Section 5), is amended to read as follows:

a. an action for divorce, separate maintenance or annulment involving the grandchild's parents is pending before the court,

b. the grandchild's parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled,

c. the grandchild's parent who is a child of the grandparent is deceased,

d.except as otherwise provided in subsection B or C 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,

e. 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,

f. 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,

g. except as otherwise provided in subsection C 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,

h. except as otherwise provided by 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

i. at any other time and for such other reason the court deems it to be in the best interests of the child pursuant to subsection D of this section and after a showing that the parent is unfit or that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child.

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.

a. the father of such child has been judicially determined to be the father of the child,

b. the court determines that a previous grandparental relationship existed between the grandparents and the child, and

c. the court determines such visitation rights to be in the best interest of the child.

a. the court determines that a previous grandparental relationship existed between the grandparents and the child, and

b. the court determines such visitation rights to be in the best interest of the child.

3. Except as otherwise provided by this section, the district court shall not grant to the grandparents 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 said 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.

D. 1. In determining the best interest of the minor child, the court shall consider and make specific findings of fact supporting such action:

<1. The>

a. the willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents <;>,

<2. The>

b. the length and quality of the prior relationship between the child and the grandparent or grandparents <;>,

<3. The>

c. <preference of the child if the child is determined tobe of sufficient maturity to express a preference;> evidence of domestic abuse or child abuse by the grandparent. If a grandparent has been convicted of or has had a substantiated report of domestic abuse or child abuse issued by a peace officer or child welfare agency, such grandparent shall not be granted the right of visitation to a grandchild,

<4. The>

d. the mental and physical health of the child <;>,

<5. The>

e.the mental and physical health of the grandparent or grandparents <;>,

f. the love, affection and emotional ties existing between the parent and child,

g. the importance of continuity of the grandparent in the child's life,

h. the mental and physical health of the parent,

i. the reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children,

j. evidence of physical or emotional abuse to the child, of one parent to the other parent or to any other person,

k. the character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child, and

<6. Such>

l. such other factors as are necessary in the particular circumstances.

2. a. In addition to determining the best interest of the child, in granting visitation rights to grandparents pursuant to this section over the objection of both parents, the court shall find that:

(1) the child would suffer harm or potential harm without the granting of visitation rights to the grandparents of the child,

(2) 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, or

(3) the parents of the child are unfit.

b. For purposes of this paragraph:

(1) "harm or potential harm" means a showing that without court-ordered visitation by the grandparents, the child's emotional or physical well-being would be jeopardized, and

(2) "unfit" includes but is not limited to a showing that a parent has:

(a) a chemical or alcohol dependency,

(b) a habitual and/or excessive use of alcohol or drugs,

(c) a history of violent behavior,

(d) committed domestic abuse, or

(e) an emotional or mental illness.

5. Appearance at any court hearing pursuant to this subsection shall be a waiver of the notice requirements prior to such hearing.

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,

d. assessment of reasonable attorney fees, mediation costs, and court costs to enforce visitation rights against the parent, or

e. any other remedy the court considers appropriate.

G. 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.

H. In any action for grandparental visitation pursuant to this section, the court may award attorney fees and costs, as the court deems equitable.

I. For the purposes of this section, the term "grandparent" shall include "great-grandparent".

SECTION 2. This act shall become effective November 1, 2001.

Passed the House of Representatives the 26th day of February, 2001.

_____________________________________

Presiding Officer of the House of Representatives

Passed the Senate the ____ day of __________, 2001.

_____________________________

Presiding Officer of the Senate

Application of Troxel Decision to HB1725 Engrossed

(To view Troxel Decision, click the link above. Then follow the page through to the Troxel v. Granville Story.)

Section 5. A. 1. a-h, according to Troxel, a parent can be one of these descriptions and still be considered a fit parent! In Troxel, they upheld Tommie Granville Wynn's right to decide for her children. Mrs. Wynn was an unwed mother who later married thus creating a step-father in the girls lives. The natural father of the girls committed suicide. The USSC decided that none of this affect Mrs. Wynn's ability to decide what was in the best interest of her girls.

Section 5. D. 1. l, This once again violates the parents' fundamental rights by giving the judge the right to override a FIT parents decision on whatever grounds he/she may so choose. See the above quotes to see why a judge can not do this.

Application of Other Case Laws and Other Problems with This Bill

Even with the addition in 5. A. 1. i., Section 5. A. 1. and Section 5. A. 2. are still in violation of Neal v Lee, 2000 OK 90, McGuire v Morrison, No 89,148, OK Court of Civil Appeals, Division I, Aug 14, 1998, In re Herbst, 1998 OK 100. The placement of the addition does not make it clear that it is the thing that must be considered first before any of the rest of it can be applied. In re Herbst, 1998 OK 100, "This Court and the United States Supreme Court have repeatedly recognized that the relationship between a parent and child is fundamental and constitutionally protected right." ""Although the parents' right to rear children without state interference is largely expressed as a 'liberty' interest, the United State Supreme Court has also noted that that right derives from privacy rights inherent in the constitution." Brooks v. Parkerson, 454 S.E. 2d 769, 772 (Ga. 1995), cert. denied 516 U.S. 942, 116 S.Ct. 377 (1995) (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944) and Hawk v. Hawk, 855 S.W. 3d 573, 578-59 n.3 (Tenn. 1993))", In re Herbst. "Without the requisite harm or unfitness, the state's interest does not rise to a level so compelling as to warrant intrusion upon the fundamental rights of parents. Matter of Sherol A.S., 581 P. 2d at 888", In re Herbst. "It is important to recognize that mandating the introduction of a third party, even a grandparent, into a family unit is state action limiting the parents' liberty.", In re Herbst. "However, a vague generalization about the positive influence many grandparents have upon their grandchildren falls far short of the necessary showing of harm which would warrant the state's interference with this parental decision regarding who may see a child.", In re Herbst. "If operating over the objection of fit parents, grandparental visitation may be imposed only upon a showing that the child would suffer harm without it. Id.", In re Herbst. "Absent a showing of harm, (or threat thereof) it is not for the state to choose which associations a family must maintain and which the family is permitted to abandon.", In re Herbst. "Therefore, equity is subject to the United Statess and Oklahoma constitutions and may not exceed the protections and privacy therein assured to families. Mandating grandparental visitation in this case, whether by statute or equity, would violate the federal and state constitutions.", In re Herbst. "As the court declares today, the relationship between parent and child must indeed be treated as paramount. It warrants judicial protection.", In re Herbst. "Nelson v Nelson, 1998 OK 10, 954 P. 2d 1219 ("liberty interest of the parent must be balanced against the best interests of the child," "child's interest are paramount," and a parent's inconvenience subordinated to the need to protect the child's welfare)", McGuire v. Morrison, No. 89,148, OK Court of Civil Appeals, Division I, August 14, 1998. "That said, however, in the context of weighing parents' rights against those Of their child(ren)'s grandparents to visitation, at least one other state has held that grandparents' rights to visitation are not co-extensive or equal with those of a parent.", McGuire v. Morrison. "Recognizing a grandparent's right to visitation is not co-equal with that of a parent, we want.find the trial court's order for grandparental visitation in the present case, granting Grandparents every other weekend and extended summer visitation akin to that of a non-custodial parent, excessive and affected by an abuse of discretion,", McGuire v. Morrison. "We find under Troxel, grandparent visitation in the present case violated Kristina Nesvold's federal constitutional rights as the mother of Joshua, Whitney, and Hunter and Keehan Nesvold's constitutional rights as the father of Whitney and Hunter.", Neal v. Lee, 2000 OK 90.

Section 5. A. 1. a-i "Joshua's father's death does not affect Kristina Nesvold's fitness as a mother nor alter her constitutionally protected rights to rear her child without state interference." Neal v. Lee, 2000 OK 90.

Section 5. D. 1. f., Can this really be measured?

Section 5. D. 1. h. Just what does this have to do with whether or not a court should grant grandparental visitation? If a parent is receiving help for depression this some how makes them less of a parent?

Section 5. D. 1. k. Once again, what is the criteria for this? Why is it important to the court what other people a custodial parent may have in their home as long as the parent is fit? Is this not a violation to the rights of privacy in one's home?

Section 5. D. 2. b. (2) d., What exactly is meant by "committed domestic abuse?" Does this mean if a woman marries a man that his former wife filed all kinds of false allegations against him but he was never convicted and everything was dropped but there are still police records of such, that the grandparents get visitation based solely on that?

Section 5. D. 2. b. (2) e., Does it not stand to reason that if a parent is suffering from an emotional or mental illness, that they do not need the added burden of a lawsuit? Admittedly if the parent is not seeking treatment, then the parent could very well be deemed unfit. But if they are, they should not be punished for their illness.

Section 5. E. 2. These grandparents that use these laws are notorious for filing contempt charges on the parents. I had contempt filed on me twice after the grandmother started the conflict! Currently, there are 3 families in the US that I know of that are serving jail time because of standing up for their constitutional rights! How can the "any" person be tightened up so the judge understands that if the grandparent violates the order the parent can file contempt?

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GOOD NEWS!

As of the first part of April, HB1725 Engrossed died in the Senate Judiciary Committee. So there is no need to write letters the rest of this session. Although, the bill's author has the right to attempt to try and get this reentered into next year's session that begins in February of 2002. I will be keeping a close eye on this to see if they attempt to revive this bill or another one like it.

More about my family's plight

I was very close to spending time in jail. After the litigating grandparent picked a fight with me at the police station during a scheduled pickup and I refused to allow my son to go with her, she filed contempt charges on me (second contempt charge after she had picked a fight). If I had not agreed to pay the ransom (oops! I mean her attorney fees) and allow one last visit (which I hired a PI to make sure she did not take off with my son or give him to his deadbeat father), I would currently be sitting behind bars in OK for not forcing my son to spend time with a grandmother that chose for the first five years of his life to have no contact! She even called the judge the night before the final hearing in the divorce case to state that she nor her son believed I was pregnant with his child! And this woman received visitation! Is this who this law was created for? She had no bond with my son but yet she was still allowed to sue me. She asked one time (right before his 5th birthday) to see my son. It took her two months to call back to see if I would agree to it. Of course, I refused as I basically no longer knew this woman. I also did not feel that this was in my son's best interest to have his entire life upheaved because suddenly this woman wanted to play at being a grandmother. I had remarried and we were planning an adoption but just had not been married long enough according to the laws even though we had been together since my son was 1 year old. My husband and his parents were my son's dad and paternal grandparents. They took my son in at an early age and have cared for him as if he was theirs. Now, the adoption has gone through and he is legally theirs!

The psychological impact of all of this was overwhelming for my son. He regressed drastically in many areas. He became more like a 2 year old instead of a 5 year old. He became extremely hard to control. He acted out everywhere. For my son's privacy, I will not go into full details of what happened to him.

The stress of the litigation caused many other problems in our family. My other children suffered as well. It placed unnecessary problems in my marriage that if we had not worked out we would have divorced. My children for almost 3 years had a mother that was completely consumed by stress caused by a grandmother that suddenly decided that she had rights. Was this fair to my children? I suffered through anxiety attacks and paranoia. I will never feel safe again from someone just waltzing in and suing me for visitation rights to my children!

My son will never feel safe again either. All of this has taught him that if someone disagrees with your FIT parents' decisions that someone can take them to court and force them into doing what that someone wants! It has taught him that he can not believe any longer that his FIT parents can protect him from the evils of the outside world. My son is now only 8 and this is how he has to spend the rest of his childhood! How is that in his best interest?

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