JANUARY 2026 | 41 THE OKLAHOMA BAR JOURNAL 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. 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 thirdparty 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. 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.
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