Ailey v. Wyatt
Ailey v. Wyatt
Opinion of the Court
Opinion by
¶ 1 Jenifer Wyatt and Alden Ailey were the unmarried parents of H.E.W. who was born March 4, 2002. After the child’s birth, Alden died while serving in the U.S. Navy. A guardianship proceeding ensued so that H.E.W., his only heir, could receive his per
¶ 2 Title 10 O.S.2001 § 5(A)(1) states:
Pursuant to the provisions of this section, the grandparent of an unmarried minor child may seek and be granted reasonable visitation rights to the child which visitation rights may be independent of either parent if the district court deems it to be in the best interest of the child and:
c. the grandchild’s parent who is a child of the grandparent is deceased.
¶ 3 The law includes “great-grandparent” in the term “grandparent.” 10 O.S.2001 § 51.
. ¶4 Appellees (collectively “grandmother”) did not allege any unfitness on the part of Jenifer and testified that Jenifer was a good mother who kept the baby sweet smelling and clean. Jenifer kept her word about what time she would bring the baby by and what time she would pick the baby up from the babysitting the great-grandmother was providing.
¶ 5 Testimony reveals that Jenifer and Grandmother had differences of opinion with respect to Alden’s estate. Floyd Ailey was the personal representative. In the end, Mother chose a different babysitter and contact between Jenifer and Grandmother ceased. At that time, H.E.W. was about seven months old.
¶ 6 Jenifer contends that the trial court erred in finding that the grandparents had shown that H.E.W. was harmed. We agree.
¶ 7 Grandmother did not allege, and the evidence did not show, that Jenifer was unfit. “If operating over the objection of fit parents, grandparental visitation may be imposed only upon a showing that the child would suffer harm without it.” In re Herbst, 1998 OK 100, ¶ 16, 971 P.2d 395, 399. The grandparent seeking visitation bears the burden of proving harm to the child and harm must be shown before the court considers the child’s best interests.
¶ 9 Jenifer also complains that Grandmother’s witness with respect to harm was not qualified to offer an expert opinion. She argues that the “expert” lacked credentials and was nothing more than a babysitter. The witness stated that she was a non-denominational spiritual counselor with some thirty years of experience. We need not decide whether the testimony was properly admitted, however, because it was not relevant to what Grandmother, needed to prove, i.e., significant harm to the child.
Q: My question was related specifically to [H.E.W.] and what it would — how that would affect her to be cut off completely from her father’s family?
A: I can only say what I’ve observed and I think it would do harm for H.E.W. I have seen it in other families. I have gone through this with other families and I’ve seen it in the children and their — the way they grow up, the way they handle things.
¶ 10 Grandmother counter:appeals that the trial court erred in holding that before it could address the best interest of the child, it must first find mother either unfit or harm to the child. We have addressed that issue in Jenifer’s appeal and find that the trial court correctly stated the law.
¶ 11 Grandmother also argues that the trial court abused its discretion in limiting her visitation periods to every other Sunday for four hours. This allegation of error is moot in light of our holding that the trial court erred in awarding any grandparental visitation.
¶ 12 We are sympathetic to the grandmother’s and great-grandmother’s desires to establish a relationship with H.E.W., as the only child of Alden. However, under the facts and law, their desires can only be met through the decisions of Jenifer, as the fit mother of H.E.W.
¶ 13 For the reasons expressed, we REVERSE the order of the trial court awarding grandparental visitation and REMAND the matter with directions to enter an order consistent with this opinion.
. Floyd R. Ailey was dismissed from the petition for visitation because he is H.E.W.'s step-great-grandfather. Section 5 does not extend to step-grandparents. He does not appeal this ruling.
.10 O.S.2001 § 5(D) provides: In determining the best interest of the minor child, the court shall consider:
1. The willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents;
2. The length and quality of the prior relationship between the child and the grandparent or grandparents;
3. The preference of the child if the child is determined to be of sufficient maturity to express a preference;
4. The mental and physical health of the child;
5. The mental and physical health of the grandparent or grandparents; and
6. Such other factors as are necessary in the particular circumstances.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.