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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