Oklahoma Child Custody Can Now Be Delegated Without a Court Order
A new Oklahoma law adopted in 2014 now allows parents to sign voluntary agreements that transfer custody of a child to another person. The non-judicial delegation of parental custody by power of attorney can last as little as 24 hours or as long as one year.
HB 2536 sponsor Rep. Jason Nelson of Oklahoma City told legislators the bill is aimed at parents in crisis who become homeless or who have medical problems. “These are families that are vetted through churches, through non-profits that will take your children, you give them power of attorney,” Nelson said told legislators who voted unanimously to adopt the new law.
In the model programs Rep. Nelson mentioned to the legislature, churches or nonprofit groups verify host families will provide safe environments. The new law, however, does not require delegated parents to be vetted.
Child Custody Delegation Law Raises New Questions
In some cases – especially where parents are divorced – the new law raises question about who will have custody. Consider a circumstance where a court has awarded custody to one parent, contrary to the preference of another qualified parent, then the custodial parent delegates custody to someone else.
What happens when the custodial parent dies after delegating custody to someone else? Or what if a parent delegates custody to someone else before they are declared unfit as a parent? Oklahoma law at Okla. Stat. tit. 43 § 112.5 requires custody in most cases to be awarded to a parent – the non-custodial parent.
Under the new delegation of custody law, does the power-of-attorney or the earlier Oklahoma statute determine whether the non-custodial parent or the delegated custodial parent gets custody?
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More directly, does the new law allow a custodial parent in a contested divorce to delegate custody to any third party they choose when a qualified non-custodial parent is otherwise eager to regain custody?
As with many new laws, it may take judicial review to sort out loose ends. Unless and until a test case arises, the answers may be open to speculation.
If you are a non-custodial parent whose child was given to someone else’s custody through a non-judicial power of attorney, contact a Tulsa child custody attorney at Wirth Law Office to find out what remedies might be available.
Likewise, before you use an out-of-court agreement to delegate custody of your child to someone else, consider contacting an Oklahoma family attorney. To schedule your initial strategy session with a Tulsa child custody attorney, call (918) 932-1861.
Delegation of Child Custody Limited to One Year
In situations where a custodial parent dies or is adjudged unfit after delegating parental custody, custodial conflicts with a non-custodial parent are unlikely to last past a year. The new law only allows delegation of parental custody of periods of up to one year.
Disputes over delegated custody where parents must follow court-ordered custody arrangements could drag out for more than a year. After a year, the custodial parent may delegate parental authority for another year.
Besides the one-year limit, other limits to the delegated authority prohibit delegated custodians from terminating parental rights, consenting to marriage or “the performance or inducement of an abortion.” The parent who delegates custody maintains full parental authority under the law and may revoke the delegated authority at any time.
Delegated custodians are exempted from the Oklahoma Child Care Facilities Licensing Act. Parents who delegate custody “shall not constitute abandonment, abuse or neglect” under Okla. Stat. tit. 1-1-105.
The exemption from abuse and neglect laws raises more questions. The exemption lapses only if the parent “fails to make contact or execute a new power of attorney” after a year. Is any limited contact with a child after a year sufficient to excuse the parent from allegations of abandonment or neglect?
What if the parent delegates parental custody to a known abuser, such as someone they suspect may encourage a teenage child to engage in prostitution? Is the parent excused from giving custody of their child to a know pimp?
Oklahoma Child Custody Transfer May Benefit Some
Regardless of the questions that arise around the new law, some matters may be more easily answered. A non-custodial parent with child support obligations is still obligated to pay child support to the custodial parent, even when the custodial parent delegates parental authority to someone else.
One would presume court orders involving visitation would remain in effect regardless who assumes custody of a child, but delegated custody could complicate enforcement. Would the custodial parent or the delegated custodian be liable if they failed to allow the non-custodial parent access to the child?
While the new law raises questions, there are cases where it could be helpful. As Rep. Nelson told legislators, homeless or ill parents could temporarily delegate custody of a child without fearing allegations of child abandonment.
A custodial parent could even delegate custody to a non-custodial parent on a short-term basis, such as while they are deployed with the military, traveling for work or away for education. Although a court would consider that delegation of custody in future child custody hearings the parent could not be accused of abandoning their child by giving the non-custodial parent temporary custody.
Strategy Session: Tulsa Child Custody Attorney
For more information about how the delegation of custody law could affect your family, or about any Oklahoma child custody matter, contact a Wirth Law Office child custody lawyer in Tulsa at (918) 879-1681, or send your question using the form on this page.
