G

 GRANDPARENT AND PSYCHOLOGICAL PARENT RIGHTS IN OREGON
AFTER TROXEL© - UPDATE (Rev. September 2010)

The Rise and Fall of the Best Interests Standard

Mark Kramer
Kramer & Associates
520 SW Sixth Avenue, Suite 1010, Portland OR 97204
Telephone (503) 243-2733; Facsimile (503) 274-4774
e-mail mark@kramer-associates.com


INTRODUCTION

Grandparents, foster parents, and other third-parties play an increasing role in the care of children, statewide and nationally. According to the US Census Bureau News, Facts for Features, July 12, 2010, there are 6.4 million households with co-resident grandparents and of this total, 2.6 million (or 41%) were primary caregivers of minor children. Nineteen (19%) Percent of these families (493,000 grandparents) fall below the poverty line. There are on average 7500 children
in foster care on any given day in Oregon. The relationship between these third parties and natural or biological parents has resulted in a significant and evolving body of case law and statutory changes.

In the seminal case of Troxel v. Granville, 530 US 57, 120 S. Ct. 2054,147 L.Ed 2d 49 (2000), the United States Supreme Court held that awarding visitation to a non-parent, over the objections of a parent is subject to constitutional limitations. The court invalidated, as applied, a Washington statute authorizing “any person” to petition for visitation rights “at any time” and providing that the court may order such visitation if it serves the “best interest of the child,” on the
ground that the statute violates a natural parent’s right to substantive due process. The court specifically recognized as a fundamental liberty interest, the “interest of parents in the care, custody and control of their children.” The Troxel case has affected laws in virtually all of the states, and has significantly reduced previously recognized rights of grandparents, step-parents and psychological parents in favor of birth parents.  In 2001, Oregon’s legislature responded to Troxel by radically restructuring Oregon’s psychological parent law (ORS 109.119) and in so doing, eliminated ORS 109.121-123, which gave specific rights to grandparents.

Before discussing the implications of Troxel and amended ORS 109.119, it is important to understand Oregon’s law before Troxel. GRANDPARENT AND THIRD PARTY RIGHTS IN OREGON BEFORE TROXEL.

Before Troxel, Oregon’s jurisprudence evolved from a strict preference in favor of natural parents to a fairly straight-forward application of the best interests test. In Hruby and Hruby, 304 Or 500 (1987), the Oregon Supreme Court held that the best interest standard is not applicable
in custody disputes between natural parents and other persons, and that in custody disputes, a natural parent would not be deprived of custody absent “some compelling threat to their present or future well-being.” That standard remained in place until 1999 when in Sleeper and Sleeper, 328 Or 504 (1999), Hruby was effectively swept aside and the court ordered that the best interest standard be applied to psychological parent cases. In Sleeper, the stepfather, a primary caretaker,  obtained custody over biological mother. (See also Moore and Moore, 328 Or 513 (1999)).  
Significantly, the court limited Sleeper holding, applying the best interests test under the statute, by making it limited by an undefined “supervening right” of a natural parent. Therefore, before Troxel, once a third party had met the test for being psychological parent (de facto custodian), the best interest standard was applied and the psychological parent competed on an equal footing with the natural parent, subject to the natural parent’s “supervening right.” This “supervening right” was defined and applied in the post Troxel cases.


TROXEL APPLIED – THE NEW STANDARD

In O’Donnell-Lamont and Lamont, 337 Or 86 (2004), the Supreme Court reversed the Court of Appeals and restored custody of the children to grandparents. The Supreme Court’s decision brings some much needed clarity to the application of Troxel as well as the post-Troxel version of ORS 109.119. Contrary to several prior Court of Appeals decisions, the Supreme Court held that it is not necessary that a third party overcome the Troxel birth parent presumption by demonstrating that the birth parent would harm the child or is unable to care for the child. Rather, the Supreme Court adhered to the legislative standard that “the presumption could be overcome by a showing, based on a preponderance of the evidence, that the parent does not act in the best interest of the child.” Id. at 107. While a parent’s unfitness or harm to a child can be strong evidence to overcome the Troxel (and ORS 109.119) birth parent presumption, that presumption may be rebutted by evidence of any of the enumerated factors as well as other evidence not specifically encompassed by one of the statutory factors. “The statutory touchstone is whether the evidence at trial overcomes the presumption that a legal parent acts in the best interest of the child, not whether the evidence supports one, two, or all five of the nonexclusive factors identified in ORS 109.119 (4)(b).” Id. at 108.

Notwithstanding this broad and encompassing standard, the more-recent case law demonstrates that two factors, parental fitness and harm to the child, are by far the most significant. See also discussion below on “Demonstrating Harm to the Child - What Is Enough?”

DIGEST OF POST-TROXEL CASES IN OREGON

1. Harrington v. Daum, 172 Or App 188 (2001); CA A108024. Visitation awarded to deceased mother’s boyfriend over objection of birth father, reversed. After Troxel v. Granville, application of ORS 109.119 requires that “significant weight” be given to a fit custodial parent’s decision. The parent’s constitutional right is a supervening right that affects the determination of whether visitation is appropriate and prevents the application of solely the best interest of the child standard.

2. Ring v. Jensen, 172 Or App 624 (2001); CA A105865. Award of grandparent visitation, reversed. Grandmother’s difficulty in obtaining the amount of visitation desired does not demonstrate the pattern of denials of reasonable opportunity for contact with the child as required by ORS 109.121.

3. Newton v. Thomas, 177 Or App 670 (2001), CA A109008. Interpreting a prior version of ORS 109.119, the court reversed an award of custody to the grandparents in favor of the mother. Under ORS 109.119, a court may not grant custody to a person instead of a biological parent based solely on the court’s determination of what is in the child’s best interest. The court must give significant weight to the supervening fundamental right of biological parents to the care,
custody and control of their children. In a footnote, the court declined to consider the impact of the amendments to ORS 109.119 enacted by the 2001 Legislature.

4. Williamson v. Hunt, 183 Or App 339 (2002), CA A112192. Award of grandparent visitation reversed. The retroactive provisions of amended ORS 109.119 apply only to cases filed under the 1999 version of that statute and former ORS 109.121. Parental decisions regarding grandparent visitation are entitled to “special weight.” Without evidence to overcome the presumption that a parent’s decision to limit or ban grandparent visitation is not in the best interest of the child, the trial court errs in ordering such visitation (but see Lamont, Case Note 6).

5. Wilson and Wilson, 184 Or App 212 (2002), CA A113524. Custody of stepchild awarded to stepfather, along with parties’ joint child, reversed. Under Troxel, custody of the mother’s natural child must be awarded to fit birth mother and because of the sibling relationship, custody of the parties’ joint child must also be awarded to mother. [See discussion below Case Note 20 for Court of Appeals decision on remand from Supreme Court.]

6. O’Donnell-Lamont and Lamont, 184 Or App 249 (2002), CA A112960. Custody of 2 children to maternal grandparents, reversed in favor of birth father (mother deceased). To overcome the presumption in favor of a biological parent under ORS 109.119(2)(a) (1997), the court must find by a preponderance of the evidence either that the parent cannot or will not provide adequate love and care or that the children will face an undue risk of physical or psychological harm in the parent’s custody. A Petition for Certification of Appeal has been filed by birth father with the US Supreme Court and is pending at this time. [See discussion at Case
Note 12 for en banc decision and discussion above, and Case Note 16 below for Supreme Court decision.]

7. Moran v. Weldon, 184 Or App 269 (2002), CA A116453. Troxel applied to an adoption case. Adoption reversed where father’s consent was waived exclusively based upon the incarceration provisions of ORS 109.322. Troxel requires that birth father’s consent may not be waived without “proof of some additional statutory ground for terminating parental rights***.”

8. State v. Wooden, 184 Or App 537, 552 (2002), CA A111860. Oregon Court of Appeals, October 30, 2002. Custody of child to maternal grandparents, reversed in favor of father (mother murdered). A legal parent cannot avail himself of the “supervening right to a privileged position” in the decision to grant custody to grandparents merely because he is the child’s biological father. Father may be entitled to assert parental rights if he grasps the opportunity and accepts some measure of responsibility for the child’s future. To overcome presumption in favor of father, caregiver grandparents must establish by a preponderance of the evidence that father cannot or will not provide adequate love and care for the child or that moving child to father’s custody would cause undue physical or psychological harm. Rather than order an immediate transfer, the court ordered that birth father be entitled to custody following a 6-month transition
period. [See also Case Note 20, Dennis, for an example of another transition period ordered.]

9. Strome and Strome, 185 Or App 525 (2003), rev. allowed, 337 Or 555 (2004), CA A11369. Custody of 3 children to paternal grandmother reversed in favor of birth father. The Court of Appeals ruled that where the biological father had physical custody for 10 months before trial, and had not been shown to be unfit during that time, Grandmother failed to prove by a preponderance of the evidence that father cannot or will not provide adequate love and care for the children or that placement in his custody will cause an undue risk of physical or psychological harm, in spite of father’s past unfitness. [See discussion below Case Note 22 for Court of Appeals decision on remand from Supreme Court.]

10. Austin and Austin,185 Or App 720 (2003), CA A113121. In the first case applying revised ORS 109.119 and, in the first case since Troxel, the Court of Appeals awarded custody to a third party (step-parent) over the objection of a birth parent (mother). The constitutionality of the revised statute was not raised before the court. The court found specific evidence to show that mother was unable to adequately care for her son. The case is extremely fact specific.  Father had been awarded custody of three children, two of whom were joint children. The third child at issue in the case, was mother’s son from a previous relationship. Therefore, sibling attachment as well as birth parent fitness were crucial to the court’s decision. Petition for Review was filed in the Supreme Court and review was denied [337 Or 327 (2004)].

11. Burk v. Hall, 186 Or App 113 (2003), CA A112154. Revised ORS 109.119 and Troxel applied in the guardianship context. In reversing a guardianship order the court held that: "“***guardianship actions involving a child who is not subject to court’s juvenile dependency jurisdiction and whose legal parent objects to the appointment of guardian are – in addition to the requirements of ORS 125.305 – subject to the requirements of ORS 109.119.” The constitutionality of amended ORS 109.119 was not challenged and therefore not addressed by this court. 12. O’Donnell-Lamont and Lamont, 187 Or App 14 (2003) (en banc), CA A112960. The en banc court allowed reconsideration and held that the amended psychological parent law [ORS 109.119 (2001)] was retroactively applicable to all petitions filed before the effective date of the statute. The decision reversing the custody award to grandparent and awarding custody to father was affirmed. Although 6 members of the court appeared to agree that the litigants were denied the “***fair opportunity to develop the record because the governing legal standards have changed***,” a remand to the trial court to apply the new standard was denied by a 5 to 5 tie vote.  [See discussion at Case Note 6 and Case Note 16 for Supreme Court decision.]

13. Winczewski and Winczewski, 188 Or App 667 (2003), rev. den. 337 Or 327 (2004), CA A112079. [Please note that the Winczewski case was issued before the Supreme Court’s decision in Lamont.] The en banc Court of Appeals split 5 to 5 and in doing so, affirmed the trial court’s decision, awarding custody of two children to paternal grandparents over the objection of birth mother, and where birth father was deceased. For the first time, ORS 109.119 (2001) was deemed constitutional as applied by a majority of the members of the court, albeit with different rationales. Birth mother’s Petition for Review was denied by the Supreme Court.

14. Sears v. Sears & Boswell, 190 Or App 483 (2003), rev. granted on remand, 337 Or 555 (2004), CA A117631. The court reversed the trial court’s order of custody to paternal grandparents and ordered custody to mother where the grandparents failed to rebut the statutory presumption that mother acted in the best interests of a 4-year old child. Mother prevailed over grandparents, notwithstanding the fact that grandparents were the child’s primary caretakers since the child was 8 months old, and that mother had fostered and encouraged that relationship. Sears makes it clear that the birth parent’s past history and conduct are not controlling. Rather, it is birth parent’s present ability to parent which is the pre-dominate issue. [See Case Note 19 for decision on remand.]

15. Wurtele v. Blevins, 192 Or App 131 (2004), rev. den., 337 Or 555 (2004), CA A115793. Trial court’s custody order to maternal grandparents over birth father’s objections. A custody evaluation recommended maternal grandparents over birth father. The court found compelling circumstances in that if birth father was granted custody, he would deny contact between the child and grandparents, causing her psychological harm, including threatening to relocate with the child out-of-state.

16. O’Donnell-Lamont and Lamont, 337 Or 86, 91 P3d 721 (2004), cert. den., 199 OR App 90 (2005); 125 S Ct 867 (2005), CA A112960. The Oregon Supreme Court reversed the Court of Appeals and restored custody of the children to grandparents. Contrary to several prior Court of Appeals decisions, the Supreme Court held that it is not necessary that a third party overcome the Troxel birth parent presumption by demonstrating that the birth parent would harm
the child or is unable to care for the child. Rather, the Supreme Court adhered to the legislative standard that “the presumption could be overcome by a showing, based on a preponderance of the evidence, that the parent does not act in the best interest of the child.” Id. at 107. While a parent’s unfitness or harm to a child can be strong evidence to overcome the Troxel (and ORS 109.119) birth parent presumption, that presumption may be rebutted by evidence of any of the enumerated factors as well as other evidence not specifically encompassed by one of the statutory factors. “The statutory touchstone is whether the evidence at trial overcomes the presumption that a legal parent acts in the best interest of the child, not whether the evidence supports one, two, or all five of the nonexclusive factors identified in ORS 109.119(4)(b).”

17. Meader v. Meader, 194 Or App 131 (2004), CA A120628. Grandparents had previously been awarded visitation of two overnight visits per month with three grandchildren and the trial court’s original decision appeared to be primarily based upon the best interests of the children and the original ruling was considered without application of the Troxel birth parent presumption. After the Judgment, birth parents relocated to Wyoming and grandparents sought to hold parents in contempt. Parents then moved to terminate grandparents’ visitation. At the modification hearing, before a different trial court judge, parents modification motion was denied on the basis that birth parents had demonstrated no “substantial change of circumstances.” Id. at 40. The Court of Appeals reversed and terminated grandparents’ visitation rights. The court specifically found that in a modification proceeding no substantial change of circumstances was required. Id. at 45. Rather, the same standard applied a parent versus parent case [see Ortiz and Ortiz, 310 Or 644 (1990)] was applicable, that is the best interest of the child. The evidence
before the modification court included unrebutted expert testimony that the child’s relationship with grandmother was “very toxic; that the child did not feel safe with grandmother; that the child’s visitation with grandmother was a threat to her relationship with Mother and that such dynamic caused the child to develop PTSD.” The court also found “persuasive evidence” that the three children were showing signs of distress related to the visitation.

18. Van Driesche and Van Driesche, 194 Or App 475 (2004), CA A118214. The trial court had awarded substantial parenting time to step-father over birth mother’s objections. The Court of Appeals reversed finding that the step-parent did not overcome the birth parent presumption. This was the first post - Lamont (Supreme Court) case. Although mother had encouraged the relationship with step-father while they were living together, and although such evidence constituted a rebuttal factor under ORS 109.119, this was not enough. The court found that such factor may be given “little weight” when the birth parent’s facilitation of the third-party’s contact was originally in the best interest of the child but was no longer in the best interest of the child after the parties’ separation. Step-father contended that the denial of visitation would harm the children but presented no expert testimony.

19. Sears v. Sears & Boswell, 198 Or App 377 (2005), CA A117631. The Court of Appeals, after remand by the Supreme Court to consider the case in light of Lamont [Case Note 16], adheres to its original decision reversing the trial court’s order of custody to maternal grandparents and ordering custody to birth mother. Looking at each of the five rebuttal factors as well as under the “totality of the circumstances”, birth mother prevailed again. Grandparents’ strongest factor, that they had been the child’s primary caretaker for almost two years before the custody hearing, was insufficient. Specifically, grandparents did not show birth mother to be unfit at the time of trial, or to pose a serious present risk of harm to the child.

20. Dennis and Dennis, 199 Or App 90 (2005), CA A121938. The trial court had awarded custody of father’s two children to maternal grandmother. Based upon ORS 109.119 (2001) and Lamont, the Court of Appeals reversed, finding that grandmother did not rebut the statutory presumption that birth father acts in the best interest of the children. The case was unusual in that there was apparently no evidentiary hearing. Rather, the parties stipulated that the court would consider only the custody evaluator’s written report (in favor of grandmother) and birth father’s trial memorandum, in making its ruling on custody. Birth father prevailed notwithstanding the fact that he was a felon; committed domestic violence toward birth mother, and used illegal drugs. However, birth father rehabilitated himself and re-established his relationship with his children. Although grandmother had established a psychological parent relationship and had been the long-term primary caretaker of the children, she was not able to demonstrate that birth father’s parenting at the time of trial was deficient or inadequate; nor was grandmother able to demonstrate that a transfer of custody to birth father would pose a present serious risk of harm to the children as grandmother’s concerns focused of birth father’s past behaviors. The case continued the Court of Appeals trend in looking at the present circumstances of the birth parent rather than extenuating the past deficiencies. The case is also significant in that rather than immediately transferring custody of the children to birth father, and because birth father did not request an immediate transfer, the case was remanded to the trial court to develop a transition plan and to determine appropriate parenting time for grandmother. Birth father’s
request for a “go slow” approach apparently made a significant positive impression with the court. [See also Case Note 8, State v. Wooden, for an example of another transition plan.]

21. Wilson and Wilson [see Case Note 5 above]. Birth father’s Petition for Review was granted [337 Or 327 (2004)] and remanded to the Court of Appeals for reconsideration in light of Lamont. On remand [199 Or App 242 (2005)], the court upheld its original decision, which found both parties to be fit. Birth father failed to overcome the presumption that birth mother does not act in the best interest of birth mother’s natural child/father’s stepchild; therefore, for the same
reasons as the original opinion, custody of the party’s joint child must also be awarded to birth mother.

22. Strome and Strome, 201 Or App 625 (2005). On remand from Supreme Court to reconsider earlier decision in light of Lamont, the court affirms its prior decision (reversing the trial court) and awarding custody of the 3 children to birth father, who the trial court had awarded to paternal grandmother. Although birth father had demonstrated a prior interference with the grandparent-child relationship, the rebuttal factors favored birth father. The court particularly focused on the 10 months before trial where birth father’s parenting was “exemplary.” Because the children had remained in the physical custody of grandmother for the many years of litigation, the case was remanded to the trial court to devise a plan to transition custody to father and retain “ample contact” for grandmother. [See Case Note 9 above.]

23. Muhlheim v. Armstrong, 217 Or App 275 (2007). The Court of Appeals reversed the trial court’s award of custody of a child to maternal grandparents. The child had been in an unstable relationship with mother and the child was placed with grandparents by the Department of Human Services (DHS). Although father had only a marginal relationship with the child, the court nevertheless ruled that he was entitled to custody, because the grandparents had not sufficiently rebutted the parental presumption factors set forth in ORS 119.119(4)(b). Grandparents had only been primary caretakers for 5 months proceeding the trial. Father had a
criminal substance abuse history but “not so extensive or egregious to suggest that he is currently unable to be an adequate parent.” While stability with grandparents was important and an expert had testified that removal of the child would “cause significant disruption to her development,” those factors did not amount to “a serious present risk of psychological, emotional, or physical harm to the child.” As in Strome (Case Note 22 above), the court directed the trial court to establish a transition plan to transfer custody to father and preserve ample contact between the child and her relatives.

Practice Note: This case follows the general trend of preferring the birth parent over the third-party, and the downplaying of issues related to a birth parent’s prior
history, lack of contact, and disruption to the stability of the child. It may have been important in this case that grandparents hired a psychologist to evaluate their relationship, but the psychologist never met with father, nor was a parent-child observation performed.

24. Jensen v. Bevard and Jones, 215 Or App 215 (2007). The trial court granted grandmother custody of a minor child based upon a “child-parent relationship” in which grandmother cared for the child on many, but not all, weekends when mother was working. The Court of Appeals reversed, finding that grandmother’s relationship did not amount to a “child-parent” relationship under ORS 109.119 and therefore, was not entitled to custody of the child. Mother and grandmother did not reside in the same home.

Practice Note: It is unclear in this case whether grandmother also sought visitation based upon an “ongoing personal relationship.” [ORS 109.119(10)(e)]. If she had, she may have been entitled to visitation but would have had to prove her case by a clear and convincing standard. Where a third-party’s “child-parent”
relationship is not absolutely clear, it is best to alternatively plead for relief under the “ongoing personal relationship,” which is limited to visitation and contact only.

25. Middleton v. Department of Human Services, 219 Or App 458 (2008). This case arose out of a dispute over the placement of a child between his long-term foster family and his great aunt from North Dakota, who sought to adopt him. DHS recommended that the child be adopted by his foster parents. The relatives challenged the decision administratively and then to the trial court under the Oregon Administrative Procedures Act (APA)(ORS 183.484). The trial court set aside the DHS decision, preferring adoption by the relatives. On appeal, the case was reversed and DHS’s original decision in favor of the foster parent adoption was upheld. The court emphasized that its ruling was based upon the limited authority granted to it under the Oregon APA, and this was not a “best interest” determination. Rather, DHS had followed its rules, the rules were not unconstitutional, and substantial evidence in the record supported the agency decision. Since substantial evidence supported placement with either party, under the Oregon APA the court was not authorized to substitute its judgment and set aside the DHS determination.

26. Nguyen and Nguyen, 226 Or App 183 (2009). Following the trend in recent cases, an award of custody to maternal grandparents was reversed and custody was awarded to birth mother. Mother had been the primary caretaker of the minor child (age 7 at the time of trial) but became involved in a cycle of domestic violence between herself, the child’s father, and others; residential instability, and drug use. Mother also had some mental health issues in the past. At trial, the custody evaluator testified that mother was not fit to be awarded custody at the time of trial, but could be fit if she could make “necessary changes and provide stability and consistency ***.” As to parental fitness, the most important issue according to the Court, was that mother’s history did not make her presently unable to care adequately for the child. As to the harm to the child element, the Court repeated its past admonition that the evidence must show a “serious present risk” of harm. It is insufficient to show “***that living with a legal parent may cause such harm.” As in Strome (Case Note 22), the Court directed the trial court to establish an appropriate transition plan because of the child’s long-term history with grandparents.

27. Hanson-Parmer, aka West and Parmer, 233 Or App 187 (2010). The trial court determined that husband was the psychological parent of her younger son, and is therefore entitled to visitation with him pursuant to ORS 109.119(3)(a). Husband is not biological father.  On appeal, the dispositive legal issue was whether husband had a "child-parent relationship." ORS 109.119(10)(a) is a necessary statutory prerequisite to husband's right to visitation in this case. Held: Husband's two days of "parenting time" each week is insufficient to establish that husband "resid[ed] in the same household" with child "on a day-to-day basis" pursuant to ORS 109.119(10)(a). Reversed and remanded with instructions to enter judgment including a finding that husband is not the psychological parent of child and is not entitled to parenting time or visitation with child; otherwise affirmed. See Jensen v. Bevard (Case No. 24).


DEMONSTRATING HARM TO THE CHILD - WHAT IS ENOUGH?

Query: Is the court expecting empirical or objective evidence that a transfer to a birth parent’s full custody from a psychological parent would cause psychological harm to a child?
How does one establish such evidence? Perhaps, some children may have to actually suffer psychological harm to form an empirical base. If a child is psychologically harmed as a result of the transition, does this constitute grounds for a modification? How long does one have to wait to assess whether psychological harm is being done - 6 months? One year? Some guidance is offered from the following cases.

Although Amended ORS 109.119 provides that the natural parent presumption may be rebutted if “circumstances detrimental to the child exists if relief is denied,” summary evidence that a child would be harmed through a transition to the custodial parent will not be adequate. In State v. Wooden, the testimony of noted child psychologist Tom Moran, that moving the child now “would be devastating and traumatic” was not sufficient. The court was critical as to the narrow scope of Dr. Moran’s analysis - he did not perform a traditional custody evaluation “instead, he offered an opinion - - based solely on his limited contact with the child - - on the narrow issue of the probable effect of awarding custody ‘right now’.” Moran was also rebutted by Dr. Jean Furchner, who recommended that custody be awarded to father after a transition period of between 6 to 12 months.

In the Strome case [Case Note 9], the court majority discounted the testimony of Dr. Bolstad (who, in contrast to Dr. Moran in Wooden, did a comprehensive evaluation including mental health testing) that found the children to be “significantly at risk.” The majority preferred the testimony of evaluator Mazza who evaluated Father and the children only, albeit in a more intensive fashion. Strome reversed the trial court and awarded custody to father drawing a dissent of 4 members of the court.

Five members of the Winczewski court [Case Note 16], agreed that the facts demonstrated that birth mother was unable to care adequately for the children and that the children would be harmed if grandparent’s were denied custody. That decision relied in part on the opinion of custody evaluator Dr. Charlene Sabin, whose report contained extensive references to mother’s inability to understand the needs of the children; her unwillingness to accept responsibility for the children’s difficulties and her very limited ability to distinguish between helpful and harmful conduct for the children. Viewing the same evidence through a different prism, Judge Edmonds and 4 members of the court determined that such evidence was inadequate to meet the constitutional standard. Judge Schuman and Judge Armstrong would have required evidence “far, far more serious” than presented to deny mother custody.

In the Supreme Court’s Lamont decision [Case Note 16], the Court specifically interpreted the “harm to child” rebuttal factor, ORS 109.119(4)(b)(C). Although the statutory language appeared to include a “may cause harm” standard, the Supreme Court adopted a limiting construction finding that “circumstances detrimental to the child” (ORS 109.119(4)(b)(c)) “***refers to circumstances that pose a serious present risk of psychological, emotional, or physical harm to the child.” The use of the reference to “serious present risk” is significant. The court specifically rejected an interpretation that the birth parent presumption could be overcome merely by showing that custody to the legal parent “may” cause harm. Id. at 112-113. While helpful, this does not end the analysis. Although the harm may occur in the future, arguably an expert can testify that a transfer of custody to a birth parent presents a serious present risk of harm even though the actual harm may occur in the future. Regardless of how one articulates the standard, it is clear from Lamont and Van Driesche [Case Note 18] that expert testimony will be required to
demonstrate harm to the child and likely be necessary in order to demonstrate deficits or incapacity of a parent.

The trend in recent cases is to focus on the current, not past, parenting strengths and weaknesses of the birth parent, particularly where the birth parent has made a substantial effort at rehabilitation or recovery. Recent cases also suggest that the importance of preserving the stability achieved with a third-party and avoiding the trauma due to a change of custody may not be sufficient to meet the “serious present risk of harm” standard. This is particularly so where the third-party and birth parent are cooperating [Dennis, Case Note 20] and a reasonable transition plan can be developed.


DO CHILDREN HAVE CONSTITUTIONAL RIGHTS?

In the ongoing battles between birth parents and third parties, it seems that the rights of children have been largely ignored, except to the extent that the best interests standard is still considered on a secondary level. In Troxel, Justice Stevens in dissent found that children may have a constitutional liberty interest in preserving family or family-like bonds. In a challenge that does not appear to have been taken root in post-Troxel jurisprudence, Justice Stevens warned:

“It seems clear to me that the due process clause of the 14th Amendment leaves room for states to consider the impact on a child of possibly arbitrary parental decisions that neither serve nor are motivated by the best interests of the child.” 120 S. Ct. at 2074.

Contrast Justice Stevens’ opinion with the recent case of Herbst v. Swan (Case No. B152450, October 3, 2002, Court of Appeals for the State of California, Second Appellate District), applying Troxel and reversing a decision awarding visitation to an adult sister with her half-brother (after their common father died). The statute was determined to be an unconstitutional infringement upon the mother’s right to determine with whom the child could associate.

In Winczewski [Case Note 13], Judge Brewer, citing a number of cases from other states and literature from journals, noted: “In the wake of Troxel, courts are beginning to recognize that ‘a child has an independent, constitutional guaranteed right to maintain contact with whom the child has developed a parent-like relationship.’” 188 Or App at 754. Judge Brewer recognized that “***it is now firmly established that children are persons within the meaning of the constitution
and accordingly possess constitutional rights.” 188 Or App at 752. But such rights are not absolute: “When the compelling rights of child and parent are pitted against each other, a balancing of interest is appropriate.” 188 Or App at 750. In the final analysis, however, Judge Brewer did not articulate the parameters of a child’s constitutional right and how that is to be applied, concluding only that a child’s constitutional right “to the preservation and enjoyment of child-parent relationship with a non-biological parent is both evolving and complex.” 188 Or App at 756. It would appear that Judge Brewer would be content to consider a child’s constitutional right as part of the best interest analysis, but only if the Troxel presumption has been rebutted.  188 Or App at 756. Commenting upon Judge Brewer’s analysis, Judge Schuman and Judge Armstrong were sympathetic to “a more sensitive evaluation of the child’s interest than Troxel appears to acknowledge,” but refused to accord to a child a free-standing fundamental substantive due process right. Rather, Judge Schuman and Judge Armstrong would accord a child “an interest protected by the state as parens patriae” rather than as a right. 188 Or App at 761.

In the 2003 and 2005 legislative sessions, this author proposed legislation (SB 804 [2003], SB 966 [2005]) which would mandate the appointment of counsel for children in contested custody third party v. parent proceedings, unless good cause was shown. Counsel would be appointed at the expense of the litigants, but each court would be required to develop a panel list of attorneys willing to represent children at either modest means rates or pro bono. The legislation stalled in committee in 2003 and 2005 with opponents citing cost considerations to litigants and that the court’s discretionary power was adequate.
 

For an excellent review of the implications of Troxel on children and families, see: Family Court Review, An Interdisciplinary Journal, Volume 41, Number 1, January 2003, Special Issue:
Troxel v. Granville and Its Implications for Families and Practice: A Multidisciplinary Symposium and Barbara Bennett Woodhouse, Talking about Children’s Rights in Judicial Custody and Visitation Decision-Making, 33 Fam. L.Q. 105 (Spring 2002).


TIPS AND WARNINGS

• ORS 109.121-123 (former grandparent visitation statutes) have been abolished. Grandparents are treated as any other third parties seeking visitation or custody.
Therefore grandparent-child relationship which has languished for more than a year may result in the loss of any right to make a claim.

• Although Amended ORS 109.119 does not require the specific pleading of facts to support the rebuttal of the parental parent presumption, come trial court’s have required this and have dismissed petitions without such allegations.

• Amended ORS 109.119 requires findings of fact supporting the rebuttal of the parental parent presumption. Be prepared to offer written fact findings to the court.

• It may be appropriate to seek appointment of counsel for the children involved. ORS 107.425 applies to psychological parent cases. It mandates the appointment of counsel if requested by the child and permits the appointment of counsel at the request of one of the parties. Expense for the appointment is charged to the parties.

• Custody and visitation evaluations are provided for at the parties’ expense. This evidence is critical to the issue of the presumption as well as best interests of the child. An evaluator should be prepared to speak to issues of attachment (both to the birth parent and the third party); potential short and long term emotional harm if the child is placed with the birth parent or third party.

• The application of third party rights in the juvenile court has been substantially restructured.  See ORS 419B.116; 419B.192; 419B.875. In 2003, the legislature created a new form of guardianship that would permit third parties to have custody of children under a Court’s wardship, but without the involvement of the Department of Human Services (DHS). (ORS 419B.366)

• Request findings of fact pursuant to ORCP 62 at the outset of your case and be prepared to draft the findings for the court. This will reduce the likelihood of remand if an appeal is successful.

• Whether representing a birth parent or a third-party, counsel should consider and present to the court a detailed transition plan to guide the court’s decision in the event that a change of custody is ordered.



Copyright © 2010 by Mark Kramer