This article examines Oklahoma’s evolving jurisprudence of the rights of stepparents and other nonbiological caregivers to seek custody and visitation under the doctrine of in loco parentis. While Oklahoma courts have long recognized that the “best interests of the child” supersede strict parental entitlement, the statutory and constitutional contours of those rights have shifted considerably. The following discussion traces the development of this doctrine from early 20th-century cases to the modern framework, through the 2021 decision in Guzman v. Guzman.

EARLY RECOGNITION OF IN LOCO PARENTIS CUSTODY RIGHTS

An early and important case in Oklahoma that recognizes the right of custody where a nonparent functioned in loco parentis was Taylor v. Taylor.[1] In Taylor, supra, the Oklahoma Supreme Court reviewed the trial court’s decision on a writ of habeas corpus request. The father was requesting custody of his then-six-and-a-half-year-old son. At three days old, the subject child was given by the father to his brother and his brother’s wife. The child’s mother died after the child’s birth. When the child was three years of age, the father’s brother died, leaving his widow in custody of the child. The father had little contact with the child and provided no support for the child prior to his seeking custody of the child.

The trial court in Taylor decided in favor of the widow’s right to retain custody. The trial court also granted the father the right to visit with the child once per week. The father appealed the trial court’s determination of custody. The widow appealed the trial court’s award of visitation rights to the father.

The trial court relied on the moral qualities of the custodial parent and the father, the efforts of the father to establish a relationship and to provide support for the child and the level of care the child was receiving in reaching its decision. The Supreme Court in Taylor based its ruling simply on what was in the best interests of the subject child. The court upheld both decisions of the trial court.

The Supreme Court’s decision is best explained in their own words: “A review of our former decisions which in detail is not necessary here, reveals that the considerations affecting the question in cases of this kind are the welfare of the child, and the natural and legal rights of the parent, and the rights of those who have for years occupied the position of parents. Of these, we said in the Bishop case, Bishop v. Bensar, 132 Okla. 116, 270 P.569, the welfare of the child is the chief consideration.”[2]

The dissent in Taylor makes a good argument for reversal of the trial court’s decision. The dissent reasoned that, like the common law in guardianship proceedings, parents possess a prior right to the care, custody and control of their children unless “the petitioning parent is an unfit person to have such care and custody.”[3]

The dissent, again relying on the same foundation as guardianship law, states, “The unfitness which will deprive a parent of the right to the custody of his minor child must be positive and not comparative, and the mere fact that his minor child might be better cared for by a third person is not sufficient to deprive the parent of this right to its custody.”[4]

In another early case, Ex parte Yahola,[5] the father asked the trial court for the issuance of a writ for the return of his biological child from his maternal grandparents. The mother was living with her parents at the time of the child’s birth, and the father was absent. The mother died shortly after childbirth. The maternal grandparents had custody of the child for five years without any interest or support from the father. The Supreme Court stated in its opinion: “The right of the father to custody of his minor child, when its mother is dead, is well recognized. Usually, the fact of such close relationship is accorded almost exclusive importance in determining who shall have custody of the child. The rule, however, is not without its exceptions. It is not an absolute right, but one which must at all times be qualified by considerations affecting the welfare of the child.”[6]

The father’s right to custody in Yahola, supra, was viewed with skepticism by the court because “his conduct has evidenced a state of indifference to the child, as opposed to the ability, good character and love possessed and manifested by his opponents.”[7]

About 10 years later, in Ex parte Parker,[8] the court considered another case like Taylor, supra, similarly involving a writ filed by a natural parent against a neighbor who had custody of the child for three years. In this case, for factual reasons, the Supreme Court denied the mother’s writ on the basis of the best interests of the child and granted the neighbor legal custody of the child.

The next year, in 1946, the Supreme Court published another opinion based on the right of a person to have the custody of another’s child, grounded on the in loco parentis doctrine. In Osburn v. Roberts,[9] the father sought a writ of habeas corpus from the trial court to obtain custody of his biological child from his sister and her husband. The child’s mother died in childbirth, and the father’s sister raised the child from the time it was two years old. The court in Osburn affirmed the trial court’s decision keeping custody of the child with the father’s sister, based on the best interests of the child “being the paramount question.”[10]

In Osburn, in deciding between a fit parent and a person who has acted in loco parentis, the court stated, “There are three rights of interests that are to be given consideration in the following order of importance: (1) that of the child, (2) that of the parent and (3) that of those who have for years discharged all the obligations of parents.”[11]

The court in Osburn balances the right of a parent to have custody of their child unless proved unfit against the rights of “those who have for a considerable period of time nurtured and cared for the child.” In balancing those rights, “it is proper for the courts to consider the ties of love and confidence that have grown up between the child and its foster parents and whether it is best for the child to disturb that relationship.”[12]

The court in Osburn aptly observed, “Each such case must be determined on its own peculiar facts and circumstances.”[13] Referring to contests between a fit parent and a party in loco parentis, the court expressed, “There is probably no class of cases that give the courts greater concern than this class.”[14]

INTO THE MODERN ERA

The early Oklahoma in parentis cases – Taylor (1938), Ex parte Yahola (1937), Ex parte Parker (1945) and Osburn v. Roberts (1946) – remain controlling precedents. Although they are decades old, they retain precedential value in our common law and are entitled to consideration. They have been cited recently and precisely for the central holding of the cases in Schnedler v. Lee[15] for the same foundational principle they first articulated: The welfare of the child is the court’s paramount concern, even when doing so limits a biological parent’s claim.

Collectively, these cases stand broadly on the best interests of the child, taking all facts into consideration in weighing the outcome. They stand out for the principle that best interests trump paternity or maternity, and “unfitness” is not the burden of proof in every case to deprive a parent of the custody of their child. Equitable considerations must always be considered when deciding issues of the best interests of children. In short, these decisions confirm that the law’s first duty in custody matters is to equity and the child’s welfare above biology or formal status.

The Oklahoma Statutes reflect a similar philosophy and provide that custody may be awarded to a third party in a divorce action. Title 43 O.S. Section 112.5 (A) provides a list of people who may be awarded custody, including suitable third parties:

A. Custody or guardianship of a child may be awarded to:

1. 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. [Emphasis supplied.]

This statutory hierarchy underscores that the Legislature recognized the practical realities of family life, namely that stability, care and continuity may be found beyond the biological parents. By expressly authorizing custody awards to “any other person deemed ... suitable,” the Legislature codified the equitable principles eventually articulated in Eldredge v. Taylor.[16] 

THE GUARDIANSHIP CASES AND PARENTAL UNFITNESS

Before the Oklahoma Supreme Court’s modern recognition of in loco parentis standing in Eldredge v. Taylor (2014), Ramey v. Sutton (2015) and Schnedler v. Lee (2019), most third-party custody requests were brought in guardianship cases. These cases reflected a more rigid understanding of parental rights, namely one that treated biological parenthood as nearly absolute and subject only to a finding of unfitness. As a result, individuals who had functioned as de facto parents had little to no recourse unless they could overcome a high evidentiary burden.

The Supreme Court has consistently held that a parent’s right to their child is protected by the Oklahoma and United States constitutions.[17] These decisions reflect a deep judicial respect for the natural parent-child relationship, grounding it in a parent’s right to the care, custody and companionship of their children as a fundamental liberty interest.

Yet, this constitutional protection has not been treated as absolute. In guardianship matters, well-established precedent requires that a third party may prove that the parent(s) are affirmatively unfit, by clear and convincing evidence, to obtain custody of a child.[18]

In the Matter of the Guardianship of M.R.S.,[19] the Supreme Court stated:

It follows that there will be circumstances in which a natural parent should not have custody of his or her child, but this Court repeatedly has held that for custody to be taken from the parent there must be a showing, by clear and convincing evidence, of unfitness of the parent, and “unfitness” means that the parent is unable to provide for the child's ordinary comfort or intellectual and moral development, and the fact that the child might be better cared for by a third person does not deprive the parent of the right to custody. Sherrick v. Butler, 175 Okla. 538, 53 P.2d 1097 (1936) (noting that there was no evidence offered that the mother was unable or unfit to care for her child); Marcum v. Marcum, 265 P.2d 723 (Okla. 1954); Roberts v. Biggs, 272 P.2d 438 (Okla. 1953); Hollick v. McDaniel, 401 P.2d 466 (Okla. 1965).

Over time, however, the rigid guardianship approach came into increasing tension with the equitable in loco parentis line of cases, beginning with Taylor v. Taylor and its progeny. For decades, the extant jurisprudence coming from guardianship law and the law of third-party custody remained available to be argued by either side in these disputes, in good faith, until the decisions in Eldredge v. Taylor, Ramey v. Sutton and Schnedler v. Lee.[20] At this point in our jurisprudence, a person who served in loco parentis has standing to seek custody and visitation of a child, and the determination must be guided by the child’s best interests as the controlling standard.

MODERN EXPANSION OF IN LOCO PARENTIS STANDING AND THE PRIMACY OF BEST INTERESTS

The doctrine evolved significantly with the Oklahoma Supreme Court’s decision in Eldredge v. Taylor.[21] In Eldredge, the court held that a nonbiological mother and former partner in a same-sex civil union may seek to enforce a written co-parenting agreement.

The shifting of the shape of the law continued with the Supreme Court’s decision in Ramey v. Sutton.[22] Ramey holds that a person who was previously in a same-sex relationship and not related to a child by blood may seek custodial rights with a child. In Ramey, the court stated:

This case is intended to recognize those unmarried same sex couples who prior to Bishop and Obergefell, entered into committed relationships, engaged in family planning with the intent to parent jointly and then shared in those responsibilities after the child was born. Public policy dictates that the district court consider the best interests of the child and extend standing to the nonbiological parent to pursue hearings on custody and visitation. This decision does not extend any additional rights to step-parents, grandparents or others.[23]

The court’s refusal to apply the extension of standing and a right to a best interests hearing to “stepparents” only shows deference by the court to issues not presented by the appeal. It does not foreclose what has already been legally established, i.e., that all third parties may seek custody and visitation rights against a biological parent when it is in the best interests of the minor child, by stating:

We have consistently given compelling consideration to the best interests of the minor child in custody matters. Daniel v. Daniel, 2001 OK 117, 42 P3d 863, Taylor, supra.[24]

We have held that when persons assume the status and obligations of a parent without formal adoption they stand in loco parentis to the child and, as such, may be awarded custody even against the biological parent.[25]

...

This couple and more importantly, their child, is entitled to the love, protection and support from the only parents the child has known. Sutton’s argument must fail in light of the equities before this Court. Ramey is recognized as being in loco parentis to their child and is entitled to a best interests of the child hearing.[26]

Later, in Schnedler v. Lee,[27] the Supreme Court held:

Just as we broadened Eldredge’s holding in Ramey to remove the barrier of an express, written co-parenting agreement between same-sex partners, we hold that a non-biological same-sex co-parent has the right to seek custody, visitation and support of his or her child on the same equal terms as the biological parent.[28]

The fundamental guiding principle of our family-law jurisprudence is the pursuit of the best interests of the child. Rowe v. Rowe, 2009 OK 66 ¶ 3, 281P.3d 887, 889 (the “best interests of the child must be a paramount consideration” in determining custody and visitation).[29]

Our jurisprudence has been consistent in considering issues of parental rights to be equitable in nature, as this approach has allowed us to most adaptively serve the best interests of the child. E.g., Bomgardner, 1985 OK 59, ¶ 17, 711 P.2d at 97 (“Court supervision over the welfare of children is equitable in character.”); Ex parte Yahola, 1937 OK 306, ¶ 14,71 P. 2d 968, 972 (explaining that “the supervision of the courts over the custody and welfare of children is of itself equitable, and not strictly legal in nature”).

We have also long recognized that the right of custody and visitation is not bound to the strict confines of biological relation. Ex parte Yahola, 1937 OK 306, ¶ 14,71 P. 2d 968 @ 970 (the right of a biological parent to custody “is not an absolute right, but one which must at all times be qualified by considerations affecting the welfare of the child”).[30]

Schnedler cites, “A person standing in loco parentis is one who acts in place of a parent.”[31]

If you fairly review all the law of this state, it becomes clear that a stepparent who has 1) engaged in family planning with the intent to parent jointly, 2) established a meaningful emotional relationship with the child and 3) resided with the child for a significant period while holding out the child as their own child[32] is entitled to have standing, just like a same-sex parent, to seek custody and visitation rights. Best interests resolve all issues. If, for some reason, a stepparent is not allowed to meet this test, then they are denied due process and the equal protection of the law. A parent is a parent, regardless of biology. Equity will not allow any other conclusion. Recall that the statute in Oklahoma allows “any other person deemed by the Court to be suitable and able to provide adequate and proper care and guidance for the child.”

RESTRICTIONS ADDED IN GUZMAN

In 2021, the Oklahoma Supreme Court ruled in Guzman v. Guzman[33] that a stepparent has no standing to seek rights of her spouse’s child. The court reasoned, at ¶8:

Step-parents have no rights under the doctrine of in loco parentis and no statutory rights to custody or visitation with a former spouse's child. Because Oklahoma has no statutory provision specifically allowing step-parents to seek custody and/or visitation, step-parents have no right to seek custody or visitation with the child of a former spouse. The fact that a step-parent chooses to lovingly take another's child into his or her home during marriage has never been grounds to either clothe that party with parental rights (custody/visitation) or burden the party with parental obligations (child support). See 43 O.S.2011 § 112.4 ("A stepparent is not required to maintain his or her spouse's children from a prior marriage.”).

However, this conclusion cannot be reconciled with either the statutory language of §112.5 or the state’s long-standing precedent extending custodial standing to third parties, such as grandparents, neighbors and same-sex co-parents.

Despite the constitutional preference for parental custody, the Supreme Court has been willing to find facts that justify depriving a fit parent of custodial rights and giving those rights to a third party, even when the parent is not unfit. These decisions reflect a consistent willingness to depart from any rigid doctrine when the best interests of the child so require it. That right of standing to seek custody or to retain custody against the wishes of a fit parent has been accorded in the following cases:

• A widow, who was the wife of the father’s deceased brother (Taylor v. Taylor, 182 Okla. 11, 75 P.2d 1132, 1938 OK 77)
• Grandparents (Ex parte Yahola, 1937 OK 306, 71 P.2d 968; and Long v. McIninch, 1953 OK 372, 264 P.2d 767)
• A neighbor (Ex parte Parker, 1945 OK 61, 156 P.2d 584)
• An aunt and uncle (Osburn v. Roberts, 1946 OK 129, 169 P.2d 293)
• Same-sex partners and spouses (Eldredge v. Taylor, 2014 OK 92, 339 P.3d 888; Ramey v. Sutton, 2015 OK 79, 362 P.3d 217; and Schnedler v. Lee, 2019 OK 52, 445 P.3d 238)

The scope and breadth of the rights conferred on third parties by the law (precedent) and by equitable and moral principles require that when an appropriate case involving a stepparent serving in loco parentis is presented to the courts, they must extend such rights to a stepparent when justified by the facts. Nothing less will serve the law or conscience.

CONCLUSION

Oklahoma law has long acknowledged that the welfare of the child must prevail over rigid definitions of parenthood. From Taylor to Schnedler, courts have consistently applied equitable principles to protect children’s established familial relationships. A consistent and principled application of those doctrines requires that stepparents, when acting in loco parentis, be afforded standing to seek custody or visitation when it is in the child’s best interests. Equity demands no less.

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ABOUT THE AUTHOR

A Tulsa native, Todd Alexander is an experienced family law attorney. He has served as a guardian ad litem for over 20 years and as a parent coordinator in over 100 cases. His practice focuses solely on family law matters, including divorce, paternity, modifications, guardianships and probate. He is an award-winning mediator, frequent CLE presenter and adjunct professor at TU. He and his wife have two grown children, and he is also an amateur musician.

 

 

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ENDNOTES

[1] Taylor v. Taylor, 182 Okla. 11, 75 P.2d 1132, 1938 OK 77.

[2] See Taylor, supra, at ¶6.

[3] Taylor at ¶28.

[4] Taylor at ¶31. [Emphasis supplied].

[5] Parte Yahola, 1937 OK 306, 71 P.2d 968.

[6] [Emphases supplied]. See Ex parte Yahola at ¶5.

[7] See Ex parte Yahola at ¶7.

[8] Ex parte Parker, 1945 OK 61, 156 P.2d 584.

[9] Osburn v. Roberts, 1946 OK 129, 169 P.2d 293.

[10] Osburn at ¶5.

[11] Osburn at ¶3.

[12] Id.

[13] Id.

[14] Osburn at ¶4.

[15] Schnedler v. Lee, 2019 OK 52, 445 P.3d 238, at ¶¶17, 18, 19.

[16] Eldredge v. Taylor, 2014 OK 92, 339 P.3d 888.

[17] See, e.g., Application of Grover, 1984 OK 20, 681 P.2d 81; Ingles v. Hodges, 1977 OK 18, 562 P.2d 845; Hood v. Adams, 1964 OK 217, 396 P.2d 483; Gibson v. Dorris, 1963 OK 235, 386 P.2d 186.

[18] See, e.g., Application of Grover, 1984 OK 20, 681 P.2d 81; Gibson v. Dorris, 1963 OK 235, 386 P.2d 186; Marshall v. Marshall, 1976 OK 127, 555 P.2d 598; McVey v. Chester, 1955 OK 275; and McDonald v. Wrigley, 1994 OK 25, 870 P.2d 777, at ¶¶4, 5 and 7.

[19] Matter of the Guardianship of M.R.S., 1998 OK 38, 960 P.2d 357 at ¶16.

[20] Eldredge v. Taylor, 2014 OK 92, 339 P.3d 888; Ramey v. Sutton, 2015 OK 79, 362 P.3d 217; and Schnedler v. Lee, 2019 OK 52, 445 P.3d 238.

[21] Eldredge v. Taylor, 2014 OK 91, 339 P.3d 888.

[22] Ramey v. Sutton, 2015 OK 79, 362 P.2d 217.

[23] Ramey, supra, at ¶19. [Emphasis supplied].

[24] Ramey, supra, at ¶14.

[25] Ramey, supra, at ¶15. [Emphasis supplied].

[26] Ramey, supra, at ¶17.

[27] Schnedler v. Lee, 2019 OK 52, 445 P.3d 238.

[28] See Schnedler at ¶16.

[29] See Schnedler at ¶17.

[30] See Schnedler at ¶18.

[31] United States v. Floyd, 81 F.3d 1517, 1524 (10th Cir. 1996).

[32] See Schnedler at ¶22.

[33] Guzman v. Guzman, 2021 OK 26, 507 P.3d 630.