Guardianships Are Very Common
Video Transcribed: What Is Guardianship? Hi, I’m Oklahoma Grandparents Rights Attorney, Justin Mosteller, Guardianships are very, very common. It’s probably the most common type of grandparents’ rights case that I handle, and I would think that would be true for most family law attorneys.
A guardianship is necessary when a parent is either unfit or unavailable to take care of the basic needs of a child. You have to show that there, by substantial evidence, you have to show that the parents are unfit. And I think, you know, in other videos, we talk about what unfitness means.
The big three are domestic violence and exposure to domestic violence for the kids, substance abuse issues, and mental health issues. There are other issues as well. Obviously, anything that involves abuse or neglect of the child is going to be proof of unfitness.
When a grandparent finds out that their grandchildren are in that type of situation, then the only thing you really can do at that point to get emergency relief is to seek guardianship. The most common type of guardianship that we do will start as an emergency.
So you file a petition for emergency guardianship, and you go to an ex parte hearing where the judge just hears you and your attorney on the issue of whether a guardianship is necessary. It’s very common for guardianships that may not even succeed ultimately to succeed at this phase.
Following the court’s decision on the petition that’s filed, the court will grant a special guardianship and set the matter for a show cause hearing. At that point, once you have that special guardianship and the letters and oath of guardian, at that point, you can go and get custody of the children right then and there.
In the event that there are difficulties obtaining custody from the parents, then you can go back to the judge and ask for what’s called a writ of assistance, which authorizes law enforcement to act, and to use reasonable force if necessary, to acquire custody of the child and deliver them to the guardian.
The next phase in guardianship is the hearing, the show cause hearing. The show cause hearing requires that the parents be given notice and an opportunity to object to the guardianship. If the parent’s consent, then really, that’s that.
But if the parents object, then you have a hearing on the merits where evidence must be provided to show that that the parents are either unfit or unavailable and that the children are in need of guardians.
Typically in Tulsa County, a public defender under will be appointed for the minor children prior to the show cause hearing. Once the public defender is appointed, the children… let’s assume the children are in your custody.
So you filed emergency guardianship. You need to make the children available to that public defender so that the public defender can interview those children and represent their wishes in court, whether that be for or against the guardianship.
For younger kids, typically it’s more of the best interest analysis that the public defender does, but it costs nothing to the guardian or to the parents and that public defender can be a very valuable resource for the court to have a better understanding of what’s really going on.
Also, it is very common for guardianships to be based on substance abuse by the parents, and so before the show cause hearing, in my practice, we usually will file a motion for drug exam, assuming that there is evidence that shows that parents are abusing substances.
When you file a motion for a drug exam in a guardianship case, you need to be prepared to bear the costs. And unfortunately, a urine test for drug tests is not that effective. And actually only shows about five days.
If drugs have been used in the most… in the recent five days, it might show up. Marijuana tends to show up the longest in a urine test, but generally speaking, the harder drugs that are commonly abused, need to be detected through a hair follicle or a nail bed test.
Their basic rule of thumb on those tests, urine tests could cover a month at most if we’re talking about marijuana. The hair follicle test can cover four to six months, and a nail bed test can cover six to nine months of time. So usually, it’s best to go for a nail bed test in that scenario. It does cost more, but it is worth it.
Hopefully, this answers some of your guardianship questions. One thing I can say that I failed to mention is that guardianships require a ton of paperwork, more than any other case with the exception of maybe an adoption, guardianships require the most paperwork.
And there’s a lot of complex laws that must be abided by, including the Indian Child Welfare Act and other statutes. So it’s important to retain an attorney if you’ve got a complicated guardianship case, and we’d be happy to help. If you have any more questions, feel free to seek counsel from our office to speak with a Grandparents Rights Attorney in Oklahoma.