The U.S. Supreme Court has held that as long as a grandchild’s parent is fit, a state should not interfere with the ability of the parent to make decisions regarding the best interests of the child or who may have visitation with the child.1

Grandparents do not have a constitutional right to their grandchildren. 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.2 Such rights are limited to those conferred by statute.3 A grandparent may not be awarded court ordered visitation with a grandchild without meeting the statutory requirements laid out in 43 O.S. §109.4.

SITUATIONS IN WHICH A GRANDPARENT CANNOT WIN VISITATION
A step-grandparent cannot win visitation under Oklahoma visitation statutes.4 However, a step-grandparent may win guardianship if they can demonstrate the parent is unfit.

A biological grandparent cannot win visitation to a grandchild if the grandchild’s parents are still married and both agree the grandparents should not have visitation.5 A grandparent will also not win visitation subsequent to the grandchild being adopted or if the grandchild was placed for adoption prior to the age of 6.6 However, a grandparent who already has court-ordered visitation or filed a petition requesting visitation prior to the adoption may be able to continue previously ordered or litigate the petitioned visitation if it was ordered or petitioned prior to the adoption process.7

BOOTSTRAPPING GRANDPARENT VISITATION TO A NORMAL PARENTAL CUSTODY HEARING
It must be pointed out that a grandparent can often avoid having to request a court for visitation if the parent of the child demonstrates during their own parental custody proceedings that the child should have a relationship with the grandparent and the parent is willing to let the grandparent see the child during the parent’s own visitation time.8

In doing this, the parent who wants their own parent to see the child should present evidence in favor of the grandparent visitation in addition to the evidence for their own custody. If setting up this bootstrap method of grandparent visitation, it is beneficial to have the grandparent testify during the parental custody hearing even if they are only testifying regarding their past visitation and relationship with the grandchild and not the merits of a divorce or custody. An attorney trying to take this approach should prepare for objections to portions of the testimony of the grandparent as being relevant to the parent’s custody issue but enough should be admissible to be successful. This type of planning will often result in a successful parent’s custody order to allow the grandparent to visit the child during the custodial parent’s normal visitation. This creates a “backdoor” way for the grandparents to see the grandchild without having to file their own petition to get a separate order.

Even if parents are awarded joint custody of a child, a parent may allow the grandparent to visit the child during the parent’s own visitation time. If a parent chooses to foster a relationship between their own parent and the child by allowing the grandparent to visit with the child, either with or without the parent present, during times when the parent would ordinarily visit with the child exclusively and such visitation is in the grandchild’s best interest, the other parent has no constitutional right to prevent it.9

However, it must be remembered that in taking this approach, a grandparent’s rights to visitation are not co-equal with that of the parent.10 Furthermore, this approach requires the cooperation of their own child to allow visitation as the grandparent is only benefitting from their own child’s custody right to the child. This method will also only work if the parent wins custody of the child.

GRANDPARENT VISITATION UNDER 43 O.S §109.4
To receive grandparental visitation under the multiprong test established in 43 O.S §109.4, a grandparent must demonstrate the following three things:

1. It is the best interest of the child to have visitation with the grandparent;11
2. The grandchild’s parent is unfit, or if the grandchild has a fit parent, the grandchild would still suffer potential harm without visitation with the grandparents;12
3. The intact nuclear family has been disrupted.13

A grandparent’s right to seek visitation vests at the disruption of the intact nuclear family of the grandchild.14 This third prong of the statute is the easiest of the prongs to prove in court. The statute specifically lists when a nuclear family is disrupted but typical cases involve a divorce, separate maintenance action, annulment or death of one of the grandchild’s parents.15 A disruption can also include when a grandchild’s parent deserted the other or is incarcerated.16 Another disruption is when the grandparent had previously taken care of the grandchild, regardless of court order, and there exists a strong, continuous grandparental relationship that is now being limited.17

In determining the first prong of the statute, the best interest of the child, the court will consider, among others, the following factors:

1. Whether or not the grandparent has a pre-existing relationship with the grandchild;
2. Does the grandchild want to have a relationship with the grandparent;
3. Does the grandparent encourage for the grandchild to have a close relationship with the child’s parents;
4. What are the motivations of the grandparent for seeking visitation;
5. What previous efforts has the grandparent taken to visit the grandchild;
6. Why a parent would not allow the grandparent visitation prior to court action;
7. The mental and physical health of the grandparent, the grandchild and parent;
8. Is the child in a stable family unit and environment;
9. What type of character do others have who visit the home that may interact with the grandchild;
10.  How much visitation time is the grandparent requesting and the impact on the grandchild’s activities. 18

The second prong of the statute is usually the most troublesome for grandparents attempting to receive visitation. A grandparent may attempt to try to achieve visitation by demonstrating in court that a parent is unfit.19 “Absent unfitness shown by clear and convincing evidence, the best interests of the child are presumed to be with the parent.”20 This is a high burden on the grandparents and in many situations a guardianship may be a better cause of action if a parent can be shown to be unfit.

Demonstrating unfitness is so difficult that Oklahoma appellate courts have held that a parent who has a strong history of failing to hold employment, has moved the child repeatedly and failed to give the child a steady living environment still does not demonstrate the parent is unfit.21 The court also held that moving a new partner whom a parent had met online a few hours before moving in with the child did not show unfitness.22

If a grandparent cannot demonstrate that a parent is unfit, they may still meet the second prong by demonstrating the child would suffer harm if they did not see the grandparent. Case law on this issue is very limited. To overcome the presumption that a fit parent knows the best interest of the child, a grandparent will likely need an expert witness familiar with the case or other strong evidence to present at trial to win visitation if appealed.

FILING FOR 43 O.S. §109.4 GRANDPARENTAL VISITATION
A grandparent must file a verified petition requesting visitation with a grandchild under 43 O.S. §109.4.23 A common mistake made by attorneys of grandparents wanting visitation is to file a motion to intervene into their own child’s custody case of the grandchild and argue from an equitable standpoint; however, as some attorneys have learned, this method does not invoke proper jurisdiction for grandparental visitation to be ordered therefore is incorrect and reversible for lack of subject matter jurisdiction.24 “A district court has no subject matter jurisdiction to consider a grandparent visitation request unless the terms of the statute have been followed.”25

The petition must be filed in the district court where an ongoing proceeding involving the child is already filed.26 If there is not an existing case involving the child, the petition may be filed in the district where the grandchild or parent resides.27 Notice must be given to the person who has custody of the child.28 Normally, this is a parent, but this also applies to the state or other person if the court has given custody to someone other than a parent through a previous order.

PRESENTING EVIDENCE TO THE COURT
As you can see, the court will consider and weigh many factors in determining whether grandparents should have court order visitation with a grandchild.

When the power of the state is used to compel a parent to give up custody and control of the parent’s child there must be a showing of harm or potential harm to the child to justify such compulsion.29 In presenting evidence, it is important that grandparents show specific facts and instances as to how the above factors should be weighed and considered by the court. 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.30

Prior to trial, a grandparent should plan on how to attack the second prong of the statute by either demonstrating that the parent is unfit, or that even though the parent is fit the child would suffer harm without the visitation.

To be successful in winning visitation, a grandparent should gather hard evidence of an existing relationship between the grandparent and the grandchild. This can consist of home video, photos or witnesses that show the child had a strong relationship with the grandparent before visitation became an issue. If the grandparent ever had custody of the child, proof of doctor visits, school records or other documents that show strong evidence that the grandparent has been present for the child’s life carry large amounts of weight.

A grandparent filing for visitation should note that any transportation costs or other costs arising from any visitations granted by the court are to be paid by the grandparent.31 Because of this statutory cost, it may be good to show the court how the grandparent is proposing to cover the added financial burden along with the proposed visitation schedule.

Since the court focuses on the best interest of the child, it is more important to show that the child needs a relationship with the grandparent than it is to show the grandparent just wants a relationship with the child. A grandparent should also be advised that the court is going to care more about the grandparent looking moral more so than the parent looking bad. Unless a grandparent can show the parent is unfit, evidence of the parent making decisions differently than that of the grandparent in the way the child is being raised are usually irrelevant to this type of hearing.

ONGOING GRANDPARENT VISITATION AND ENFORCEMENT
If a grandparent wins visitation through the court, the visitation will remain in place until the visitation is modified or until the child is no longer a minor. If, after being granted visitation, a grandparent is still denied visitation, the grandparent may file a motion for enforcement of visitation rights, which the court shall set for an initial hearing.32 Notice of the initial hearing shall be sent to the last-known address of the custodian(s) of the grandchild at least 10 days prior to the date set by the court, unless ordered differently.33

Unlike most hearings on motions, at the initial hearing, the court shall direct mediation and set a hearing date for the merits of the motion in the event mediation is unsuccessful.34 After mediation, the mediator shall submit to the court the outcome of the mediation. Upon receipt of the record of mediation termination, the court shall enter an order in accordance with the parties’ agreement, if any.35 If a mediation agreement is not reached, the court will conduct its hearing on the merits on the previously scheduled date.

After the hearing, if the court finds that the grandparent visitation rights have been unreasonably denied or otherwise unreasonably interfered with, the court may do the following:

1. Enter a specific visitation schedule;
2. Allow the grandparent make up visitation time for the time missed;
3. Force the parent to post a bond conditioned upon compliance of the visitation order;
4. Force the parent to pay legal fees incurred by the grandparent.36

If the court finds the motion was unreasonably filed by the grandparent, the court may assess legal costs against the grandparent.37

CONCLUSION
If a grandparent can demonstrate a parent is unfit, a guardianship may also be an option that a grandparent should consider before filing for visitation rights. If a parent cannot be shown to be unfit to the court, the most important factors in obtaining grandparental visitation is to show that it is in the child’s best interest and that the child may be harmed if a pre-existing relationship between the grandparent and grandchild does not continue.

ABOUT THE AUTHOR
Chase McBride is a partner at Ritchie, Rock & McBride Law Firm located in Pryor. Mr. McBride has a J.D. and MBA along with a Certificate in Law and Entrepreneurship from the OU College of Law. He is currently serving as president of the Mayes County Bar Association.

1. Troxel v. Granville, 527 U.S. 1069.
2. 43 O.S. §109.4(A)(2).
3. Murrell v. Cox, 2009 OK 93, ¶25, 226 P.3d 692, 698.
4. In the Matter of the Guardianship of H.E.W., 2004 OK CIV APP 19.
5. 43 O.S. §109.4(B).
6. 43 O.S. §109.4(D)(3).
7. Birtciel v. Jones, 2016 OK 103.
8. Sicking v. Sicking, 2000 OK CIV App 32.
9. Sicking v. Sicking, 2000 OK CIV App 32 at ¶14.
10. Murrell v. Cox, 2009 OK 93, ¶25, 226 P.3d 692, 698 (citing McGuire v. Morrison, 1998 OK CIV APP 128, ¶9, 964 P.2d 966, 969).
11. 43 O.S. §109.4(A)(1)(a).
12. 43 O.S. §109.4(A)(1)(b).
13. 43 O.S. §109.4(A)(1)(c).
14. Birtciel v. Jones, 2016 OK 103 at 17.
15. 43 O.S. §109.4(A)(1)(c)((1)-(9)).
16. 43 O.S. §109.4(A)(1)(c)((5)).
17. 43 O.S. §109.4(A)(1)(c)((6)).
18. 43 O.S. §109.4(E).
19. 43 O.S. §109.4(B).
20. In the Matter of Guardianship of M.R.S., 1998 OK 38, ¶21.
21. In re the Matter of E.G.B., Oklahoma State Court of Civil Appeals, Unpublished Opinion, 2016.
22. In re the Matter of E.G.B., Oklahoma State Court of Civil Appeals, Unpublished Opinion, 2016.
23. 43 O.S. §109.4(F)(1).
24. Hillhouse v. Fitzpatrick, 2013 OK CIV APP 36.
25. Hillhouse v. Fitzpatrick, 2013 OK CIV APP 36 at ¶12.
26. 43 O.S. §109.4(F)(1).
27. 43 O.S. §109.4(F)(1).
28. 43 O.S. §109.4(F)(1).
29. Craig v. Craig, 2011 OK 27 at ¶25.
30. In the Matter of the Application of Herbst, 1998 OK 100 at ¶16.
31. 43 O.S. §109.4(H).
32. 43 O.S. §109.4(F)(2).
33. 43 O.S. §109.4(F)(4).
34. 43 O.S. §109.4(F)(2).
35. 43 O.S. §109.4(F)(3).
36. 43 O.S. §109.4(F)(6)(a-d).
37. 43 O.S. §109.4(F)(7).

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 18 (March 2018)