Overcoming Guardianship: Steps to Prove Parental Fitness
What do I do to get my kids out of a guardianship? I’m Tulsa Attorney James Wirth. That’s the question that we have. So first off, we want to start that parents, under constitutional law, have the right to the care and custody of their children. That’s where we start from. In order for that to be counterbalanced, to do something different, such as to give a guardianship to a third party, the court has to find that the parents are unavailable or unfit. So they’ve got to be demonstrated to be unfit. Because otherwise, unless you’re completely unfit, the parent has the right to care and custody.
And of course, we have custody battles between parents. But if we’re talking between a parent and a non-parent, they are not on equal footing. The parent doesn’t have to prove that they’re the better person to be a custodian of the child. They just have to prove that they are fit. Or to state it more accurately, the burden is on the other party to affirmatively demonstrate that they are unfit. So it’s not enough for the person requesting guardianship to show that the kids would be better with them. They have to show not only would the kids be better with them, but also the parent is unfit.
Challenging a Guardianship
So when the court makes a finding that the parent is unfit, then they can grant that guardianship. As part of that, though, the law requires that the court make notation of what are the issues that cause the parents to be unfit. So that should already be in place. However, frequently we find that that isn’t done. So if you are looking at terminating guardianship, first thing we want to do if we’re representing the party, we want to pull that court file. We want to see what’s in the court file. When there were findings related to unfitness, what were those findings? What are the conditions that need to be corrected?
What needs to be done? And if they’re already in there, that’s your blueprint. You need to demonstrate this has been taken care of. Maybe there’s an unsafe home. Maybe they neglected the child. Maybe there’s domestic violence. Maybe there were drug issues. So you have to be able to demonstrate those things are resolved. So if they are in there, that’s great. If not, then you may need to go to court and ask what are the issues that need to be addressed.
Steps to Terminate Guardianship
In either case, then you file a motion to terminate that guardianship, set it for hearing, and the court may come up with guidelines if they’re not already guidelines in place, and you can demonstrate at that time whether those issues are resolved. So in the first place, the burden is on the guardian to show that you’re unfit. Now the burden is on you to show that you are fit. So get that evidence together to show that those issues are taken care of. If there’s a drug issue, show you know you did treatment or you’ve done drug testing and that’s taken care of.
Contact Us for a Strategy Session
If you’re dealing with this circumstance, though, it can be complicated based on the specifics of your case. You’re going to want to talk to a child custody attorney in Tulsa, OK about that privately and confidentially. To get that scheduled with a Wirth Law Office attorney contact us at MakeLawEasy.com to schedule a low-cost initial strategy session. Call us at 918-879-1681.
