Guardianships by Their Nature Are Temporary
Video Transcribed: How to file to terminate a guardianship in Oklahoma. I’m Tulsa Guardianship Attorney James Wirth, and we’re talking about how to terminate a guardianship. First off, guardianships by their nature are temporary. They are never meant to be permanent. Permanent guardianship, that’s called adoption. So if you’re dealing with guardianship, it is supposed to be temporary, however, it’s indefinite, meaning it keeps going on until somebody files to terminate it. So who can file to terminate it? Well, the parent, either parent could file determinate it, or the guardian could file to terminate it.
We had a question that came in and asked, “How do you file to terminate?” And that came from a parent, so I’m going to look at it from that point of view. So it is temporary in nature, but you do have to file in order to get it terminated.
So you would file a motion to terminate the guardianship, you’d file it in the same case that the guardianship is. So that PG case, you’d file it with the court clerk in the same county it was entered and then you would have an order setting hearing along with that motion, give it to the guardianship judge, have it set for hearing, and then you would appear at the hearing in order to give testimony and enter evidence in.
And in order to get it terminated, the burden of proof is going to be on the movent, the person requesting that’d be terminated. So if mom goes to the court requesting the guardian should be terminated, then the burden is going to be on her.
And the burden is to show by clear and convincing evidence that the reasons for the guardianship are no longer in place, meaning that the conditions that led to the guardianship have been corrected.
So the seminal case related to that is going to be in the matter of MRS. And that is a case decided by the Oklahoma Supreme Court in, it looks like, 1998. And that citation is 1998, OK 38. And that’s where we get the official standard for what it takes to terminate a guardianship. And in that case, the court notes, that the trial judge when they enter a guardianship, should make a list of the conditions that led to the guardianship.
And then that can be used as a blueprint for the parent to correct, and then to file with the court to show and prove, by clear and convincing evidence, that these conditions have been corrected. However, in practice, we see a lot of guardianships get entered without any specific conditions being mentioned, in which case the parent just kind of it’s on them to determine what are the conditions and to show that these were the conditions and these conditions need to be corrected. And that burden is on the parent to show those things.
So you go to court, you put on the hearing and you show, if it was a drug issue, you show that that’s been corrected. You show that I’m clean. Maybe I went to rehab. I’ve got these clean drug tests. And you show that that issue with drugs, that’s been corrected. Or maybe they didn’t have housing.
They were living on the streets and then they show, “Look, I’ve got a house I’ve been living here for this period of time. I’ve got a job. I’m making money. I’m taking care of myself. I’m no longer unfit. Those conditions have been corrected.” Once you demonstrate to the court the conditions have been corrected, then the constitutional right to a parent to have care and custody of the child triggers in.
Oklahoma statute says there’s a presumption that’s in the best interest of a child to be with a parent. So once you show the conditions have been corrected, that kicks in. The children need to be given back to the parent at that point that has corrected those conditions. However, judges, a lot of times don’t want to do that immediately. So in practice, you see that there may be a transitionary period. They may be visitation that gets expanded and expanded and expanded.
There may be a step-up provision that after this period of time you go to this new schedule, then this new schedule, and then eventually the kids are all back with the parent. So don’t be too surprised if the court system tries to slow play you on that. They are acting in the best interest of the children, or their belief of what’s in the best interest, although they may be going against a little bit, as far as the constitutional duties to give the child immediately back to the parent.
Once the conditions have been corrected, sometimes they try to transition and over a period of time, and there is an argument that’s in the best interest of all parties involved. But if you have a question about your specific circumstances and how to do a termination of the guardianship, you’re going to want to talk to an attorney confidentially about that. To speak with somebody in my office. You can schedule that by going to makelaweasy.com.
