Unfitness Is A Very Powerful Designation
Video Transcribed: What makes a parent unfit in the State of Oklahoma? This is Tulsa Grandparents Rights Lawyer, Justin Mosteller, and I’m going to spend some time discussing this topic with you today.
Now, unfitness in the State of Oklahoma is a very powerful designation. If you could show that a parent is unfit, there are many remedies that become available for a grandparent to seek. Further, in a regular child custody case, a divorce or paternity case, unfitness can often be the deciding factor when determining who should have primary physical custody of a child. So, unfitness is very important.
For grandparents, unfitness is required in a guardianship case, unfitness, unavailability, or consent. You can get consent. If the parent says, “Yes, the guardianship is necessary,” then you don’t have to prove unfitness or unavailability.
In an adoption context, it’s also a necessity to show some unfitness if the parents do not consent. That unfitness can be demonstrated in different ways, but it’s the Best Interest Hearing in the adoption context. And, so, unfitness is going to be a critical factor in a successful adoption.
Also, in a grandparents’ rights case, a lot of people don’t understand that unfitness by the parents is a reason to grant grandparent visitation, specifically so that the grandparent can be a part of the grandchild’s life, and so can see and report back on different things that happened in the home that might be of concern.
In the grandparents’ rights context, It’s probably the least important there, because, in a grandparents’ rights context, you have to show either parental unfitness or a pre-existing relationship with the grandchild that has been interrupted without good cause by the parents.
Now, in terms of what can get a finding of parental unfitness, domestic violence is a regular feature that we see in cases, and domestic violence can create a presumption of unfitness on the part of the abuser. Or if someone has been convicted of domestic violence in the last five years, there’s also a presumption. And I’ll talk a little bit about presumptions in a minute.
Another area that we see many, many cases involving grandparents stepping up and attempting to get custody is drug abuse. When a parent is abusing drugs actively, there will also be a presumption of unfitness. Also, in the context of mental illness, mental illness can be another reason that a parent is unfit in the State of Oklahoma.
Now, when I talk about the presumption of unfitness, demonstrating those different issues creates a presumption. That presumption can be overcome. It’s rebuttable, is the term of art in the law for this.
A presumption can be overcome if the person who has shown to be … to have one of these issues, domestic violence, drug abuse, mental health, if that parent can then make a showing that, “No, in fact, this presumption should not apply to me,” but that’s a pretty high mountain to climb, and in the years that I’ve been in practice, I’ve never seen a parent overcome solid evidence of unfitness in rebutting that presumption.
So, it really is a case winner and can be a very important thing to show. And you should talk to your lawyer if you believe that your case involves parental unfitness. If you’d like to speak with us, please reach out to speak with a grandparents’ rights attorney. We’re happy to talk about these issues and others, and appreciate your time.