When the circumstances that led to the granting of a guardianship no longer exist, the parents may wish to end the guardianship and get their children back. Fortunately, it is possible to end a guardianship to which you previously consented. The attorneys at the Law Offices of Craig L. Cook can help you learn how to terminate guardianship in Arkansas or Oklahoma so that you can care for your children again.
How to Terminate Guardianship
Both Arkansas and Oklahoma have processes through which a consensual guardianship can be terminated. Under Ark. Code § 28-65-401(b)(3), a court may terminate a guardianship when it is no longer needed and fails to serve the ward’s best interests. Oklahoma has a similar statute: 30 OK Stat. § 30-4-804. Under this law, the court may terminate a guardianship when it appears that the guardianship is no longer necessary.
While both states have a system in place for how to terminate guardianship, issues often arise when parents seek to terminate guardianships that they once granted.
For example, in the past, issues would sometimes arise regarding the standard that should be used in cases where a parent (or parents) sought to end a consensual guardianship. Some states weighed the best interests of the child against the parents’ best interests. However, the Supreme Court held in Troxel v. Granville, 530 U.S. 57 (2000), that parents have a fundamental and constitutional right to the care, control, and custody of their children. The Supreme Court found that a Washington state statute that allowed anyone to petition to have visitation with a child at any time was unconstitutionally broad because it infringed on the parent’s right to decide who her children should be in the custody of and how they should be cared for.
The cases described below illustrate how parents who have previously consented to guardianships may terminate the legal agreement and get their children back.
Troesken v. Herrington (Arkansas)
In the Arkansas case of Troesken v. Herrington (In re S.H.), 455 S.W.3d 313 (Ark. 2015), the Arkansas Supreme Court held that relying on the best interests of the child standard was not correct when deciding whether to grant a parent’s request to end a consensual guardianship. Instead, the court held that when a parent is fit and is able to show that the guardianship is no longer necessary, the guardianship should be terminated.
In that case, Troesken was a young mother who lived with her child at her child’s paternal grandparents’ home. She consented to give guardianship of her daughter to the grandparents. Two weeks after she did, the grandparents evicted her and refused to allow her to take her daughter with her. Her situation improved, and the guardianship was no longer needed. The lower court applied the best interests of the child standard when it denied her petition to end the guardianship. The Arkansas Supreme Court reversed that decision and ordered the trial court to enter an order returning the child to her mother.
In Re Guardianship of CDA (Oklahoma)
In the Oklahoma case of In Re Guardianship of CDA, 212 P.3d 1207 (Okla. 2009), the Oklahoma Supreme Court held that parents who are fit have the burden of proving through clear and convincing evidence that the reasons that led to the granting of guardianship no longer exist. So if parents had previously been deemed unfit to care for their children, they must show that they are now capable.
In Oklahoma, there is a presumption that placing a child with a fit parent is in the best interests of the child. Since contests about terminating guardianships are frequently between a natural parent and a party that is not the child’s natural parent (such as a grandparent), the guardians who are contesting the end of the guardianship must prove that the parent is unfit to care for their child.
Ending a Consensual Guardianship
In both Oklahoma and Arkansas, a parent who wants to end a consensual guardianship will need to notify the court that he or she is withdrawing his or her consent to the guardianship. Then, the parent will need to file a petition with the court to end the guardianship and serve the petition on the guardian of the child.
To successfully regain guardianship, the parent will need to show that the circumstances that led to the guardianship have changed and the guardianship is no longer necessary. If the child’s current guardian objects, he or she will need to prove that the parent is not fit to care for the child.
_____
If you granted guardianship of your child to someone else, it is possible for you to end the guardianship and get your child back. To learn more and to get help from a knowledgeable attorney with experience in family law, schedule a consultation today with the Law Offices of Craig L. Cook by calling us at 479-783-8000 or contacting us online.
