THE OKLAHOMA BAR JOURNAL 40 | JANUARY 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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. Lee15 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:
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