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Tuesday, November 28, 2017

Update to Third Party Custody

LEGAL UPDATE --- THIRD PARTY CUSTODY





Guardianship of Meldrum, 2017 OK CIV APP 61, ___P.3d ___

          This is a custody contest between the child’s grandmother and the step-mother.  The biological mother was never been a part of the child’s life.  The father is now in jail for domestic violence committed against the step-mother when he tried to strangle her.  The father and step-mother have divorced and the step-mother has custody of the two children born to her and the father.  The trial court found that it was in the best interest of the child that the step-mother be appointed as the guardian and the grandmother appealed.

          The grandmother argued on appeal that the list of persons 43 O.S. §112.5 to whom a trial court could grant custody or guardianship in are listed in order of preference.  The step-mother disagreed arguing that when the statute was amended in 2009 the phrase “order of preference” was stricken from the text of the statute, although not taken out of the title of the statute.

          The appellate panel affirmed.  It noted that even when the phrase “order of preference” was in the statute, the statue was still interpreted to make that phrase subordinate to the best interests of the child.  See In re Adoption of D.D.B., 2004 OK CIV APP 31, 87 P.3d 1112, 1118 (statutory preference is subordinate to the best interests of the child); Matter of Application of Smith, 1992 OK CIV APP 97, 837 P.2d 929  (preference order is not absolute and trial court has discretion in determining best interests of the child).  The legislature when it amended the statute not only took out the phrase, but specifically provided that the court “may” award custody and guardianship to the listed people in the statute.

          In determining the best interest of the child in this case the court had conflicting testimony concerning whether the child would be better off with the grandmother or step-mother.  The panel found that there was ample evidence in the record to support the trial court’s determination and therefore, as usual in cases concerning the original custody or guardianship determination, the trial court was upheld.



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