child custody question for research

[blarson01]

What is the name of your state (only U.S. law)? I live in CA but the state that the people who are involved in is Oklahoma. I just got a quick question. Here are the facts that you need to know to answer it, the remarried mother of a fifteen year old has died, the biological father has been absent the whole time the child has been growing up. The step father assumed he would get custody but at the last second the mother decided to give custody to the biological father. The biological father is going along with the mothers dying request. What rights does the step father have in this situation? What would have to be done for him to get full custody of the fifteen year old? Thanks!

Blarson

 

[Antigone*]

What is the name of your state (only U.S. law)? I live in CA but the state that the people who are involved in is Oklahoma. I just got a quick question. Here are the facts that you need to know to answer it, the remarried mother of a fifteen year old has died, the biological father has been absent the whole time the child has been growing up. The step father assumed he would get custody but at the last second the mother decided to give custody to the biological father. The biological father is going along with the mothers dying request. What rights does the step father have in this situation? What would have to be done for him to get full custody of the fifteen year old? Thanks!

Blarson

The step father is a legal stranger. He has no inherent rights to the child. The biological father has every right to his son.

 

[proud_parent]

What is the name of your state (only U.S. law)? I live in CA but the state that the people who are involved in is Oklahoma. I just got a quick question. Here are the facts that you need to know to answer it, the remarried mother of a fifteen year old has died, the biological father has been absent the whole time the child has been growing up. The step father assumed he would get custody but at the last second the mother decided to give custody to the biological father. The biological father is going along with the mothers dying request. What rights does the step father have in this situation? What would have to be done for him to get full custody of the fifteen year old? Thanks!

Blarson

The mother has/had no authority to "give" custody to anyone. Only the Court has the authority to award custody.

Presuming that paternity was established and that his rights were never terminated by the Court, the father is the child's only surviving legal parent. He is therefore first in line to be awarded custody should he wish to have it.

 

[blarson01]

thanks

Thanks for replying. Can she state in her will that her desire if for custody to go to the bio father? The step dad is a great dad. I thinking that the only way he's going to get custody is if the bio father lets him adopt the kid. Is that right? Does the step father have any case if the bio father has been out of the picture all the kids life?

 

[Antigone*]

Thanks for replying. Can she state in her will that her desire if for custody to go to the bio father? The step dad is a great dad. I thinking that the only way he's going to get custody is if the bio father lets him adopt the kid. Is that right? Does the step father have any case if the bio father has been out of the picture all the kids life?

...did we stutter


eta...Children are not property, they are not "willable."

 

[poppabear]

If mom is dead, then she has no say. It is not possible to 'will' a child. Stepdad has no more right to the child than the mailman. Has paternity been legally established? If so, unless the father is unfit or willing to let stepdad adopt, there really is no chance of stepdad gaining custody.

 

[blarson01]

yeah I got it. There's no hope. lol. I meant for the judge to take into consideration. Law has no heart for real, only facts and lots of paperwork. Thanks.

 

[Proserpina]

yeah I got it. There's no hope. lol. I meant for the judge to take into consideration. Law has no heart for real, only facts and lots of paperwork. Thanks.

Actually....step-dad may have a chance at custody.

Oklahoma: Okla. Stat. Ann. tit. 10, 21.1 (West Supp. 1996) (authorizing appointment of nonparent guardian following death of custodial parent if it would be detrimental to child for noncustodial parent to have custody). Looper v. McManus, 581 P.2d 487 (Okla. 1978) (court may grant visitation to stepparent on showing of best interests of child).

Though I do want to see if there is something more recent.

 

[LdiJ]

Actually....step-dad may have a chance at custody.



Though I do want to see if there is something more recent.

But mom did not appoint a non-parent guardian. She acknowledged the child's father.

A parent can set up/nominate/appoint someone as a standby guardian in case of the parent's death. If no one challenges that, a court would likely honor the standby/nomination/appointment. If someone does, then its going to be a combo of the child's relationship to the person, the child's wishes if the child is old enough to legitimately express a wish, and the best interests of the child.

However, the child's other parent is always going to be at the top of the list...because the child's other parent has constitutional rights.

 

[Isis1]

depending on how long the stepfather was in the picture, it might be possible to sue for visitation. are there any half-siblings involved?

 

[Proserpina]

But mom did not appoint a non-parent guardian. She acknowledged the child's father.

A parent can set up/nominate/appoint someone as a standby guardian in case of the parent's death. If no one challenges that, a court would likely honor the standby/nomination/appointment. If someone does, then its going to be a combo of the child's relationship to the person, the child's wishes if the child is old enough to legitimately express a wish, and the best interests of the child.

However, the child's other parent is always going to be at the top of the list...because the child's other parent has constitutional rights.

Ah - gotcha.

So it refers to the parent assigning a guardian beforehand?

And not "Court may authorize and appoint a guardian after the parent has died?"

 

[LdiJ]

Ah - gotcha.

So it refers to the parent assigning a guardian beforehand?

And not "Court may authorize and appoint a guardian after the parent has died?"

I would have to read the entire case to be sure, but that is my guess based on what you posted.

That is one of the tricky things about case law. Case law usually/often contains the arguments from both sides, so you can quote something from case law without it being valid in any way, shape or form, because it was an argument presented by the losing side.

If you want to validly quote case law, you have to quote it in the context of the entire case. Many attorneys quote case law in court that is taken out of context, and therefore the opposing attorney has to counter argue the issue based on context, and it is also often necessary to hope that a judge reviews the entire case for "context" as well.

In addition many people here quote laws that are technically still on a state's books, but have been struck down by the state's higher courts...and lawyers do that in court as well.