GRANDPARENTS AND PSYCHOLOGICAL PARENTS
RIGHTS AND REMEDIES© (Rev. March 2010)
IMPORTANT LEGAL DEVELOPMENTS
DATE LEGAL CHANGES AFFECTING GRANDPARENT AND THIRD PARTY
VISITATION RIGHTS
June 2000 The United States Supreme Court issues Troxel v. Granville.
January 2001 Oregon Court of Appeals issues Harrington v. Daum.
July 31, 2001 Oregon Laws Regarding Grandparent and Psychological Parent
Rights were
fundamentally modified by the 2001 Legislature. This legislation, amending ORS
109.119, which became law on July 31, 2001, was intended to make Oregon’s
law consistent with the US Supreme Court’s decision in 2000, Troxel v. Granville
and applies to all cases, including those filed or decided before the effective
date
of the new law.
June 10, 2004 TROXEL APPLIED IN OREGON – 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 non-exclusive
factors identified in ORS 109.119 (4)(b).” Id. at 108.
1. The Presumption that a Legal Parent Acts in the Best Interest of the
Child/Rebutting
the Presumption.
Oregon law now establishes a presumption that a legal parent acts in the best
interest of a child
in cases where a third party seeks custody or visitation rights. The presumption
may be rebutted by a
number of factors, including:
i. If the petitioning person is or recently has been the child’s primary
caretaker;
ii. The legal parent is unwilling or unable to care adequately for the child;
iii. If the child would be psychologically, emotionally or physically harmed if
no custody
or visitation relief was ordered;
iv. The legal parent fostered, encouraged or consented to the relationship
between the
child and the third party;
v. Granting the requested relief would not substantially interfere with the
custodial
relationship between the legal parent and the child; and
vi. The legal parent unreasonably denied or limited contact between the child
and the
third party.
Upon the request of the legal parent or the third party, the court may order
that a custody or
visitation study be performed at the expense of either the legal parent, the
third party or both. A attorney
may be appointed for a children at the request of the child (mandatory
appointment) or at the request of
one of the parties (discretionary appointment).
2. Psychological Parents' Rights--Visitation
a. Authority. ORS 109.119.
b. Eligibility.
Any person (not necessarily a blood relative) who has maintained "an ongoing
personal
relationship with substantial continuity for at least one year, through interaction,
companionship, interplay and mutuality." The person must show a substantial
degree of
contact with the child for a period of at least a year. The person does not have
to show that
he or she had physical custody, only a relationship and substantial contact with
the child.
This statute applies to blood relatives and non-blood relatives, including
grandparents, step-grandparents, stepparents and persons whose children have not established
paternity.
There is no longer a separate law that governs rights of grandparents.
Grandparents must
meet the same standards as other third parties. A petition may be filed in a new
legal
proceeding or through an existing guardianship or domestic relations proceeding.
For
interventions in juvenile court proceedings, see section 4B.
c. Relief Available.
The petitioning party must rebut the presumption that the legal parent acts in
the best
interest of the child. If the court finds "from clear and convincing evidence"
that the
presumption has been rebutted, the court may order reasonable visitation or
contact rights
if it is in the best interest of the child. "Clear and convincing evidence" is a
higher legal
standard than is normally required. It means substantially more than a
preponderance of
the evidence (more than 51 percent), but not as high a standard as that used in
a criminal
case--"beyond a reasonable doubt." The presumption may be rebutted by a number
of
factors. Attorney fees are available to the prevailing party.
3. Psychological Parents' Rights--Custody
a. Authority. ORS 109.119.
b. Eligibility.
A person petitioning for custody under this statute must show a "child-parent
relationship."
The statute defines "child-parent relationship" as follows:
"***a relationship that exists or did exist, in whole or in part, within the six
months
preceding the filing of an action under this section, and in which relationship
a
person having physical custody of a child or residing in the same household as
the
child supplied, or otherwise made available to the child, food, clothing,
shelter and
incidental necessaries and provided the child with necessary care, education and
discipline, and which relationship continued on a day-to-day basis, through
interaction, companionship, interplay and mutuality, that fulfilled the child's
psychological needs for a parent as well as the child's physical needs. However,
a relationship between a child and a person who is the foster parent of the
child is
not a child-parent relationship under this section unless the relationship
continued
over a period exceeding 12 months."
In other words, a person requesting custody must show that they had exclusive or
shared
physical custody of the child within six months before the petition. It does not
include foster
parents unless the relationship extended for a period of 12 months or more.
c. Relief Available.
If the required relationship is shown, and if the presumption that a legal
parent acts in the
best interest of the child is rebutted (see Section 1 above) the court may award
custody to
the third party or appropriate visitation rights if it is in the best interests
of the child. Upon
filing the petition, the court may also award temporary custody, pending a final
hearing.
4. Intervention by Psychological Parents and Grandparents – ORS 109.119; ORS
419B.116; ORS 419B.875
Unless a person is allowed to “intervene” or granted rights of “limited
participation”, they are not
parties, are not given formal notice of legal proceedings, and are not entitled
to formally address the Court.
Both grandparents, psychological parents and third parties may seek to intervene
in family law proceedings
affecting a child. Third parties may also seek to intervene in Juvenile Court
proceedings.
a. Intervention in Circuit Court. ORS 109.119.
To intervene in circuit court, a person must allege that they have either a
child-parent
relationship or an ongoing personal relationship, as well as alleging facts that
the
intervention is in the best interest of the child. If allowed, Intervention will
provide the
intervener with formal notice of legal proceedings and the right to present
evidence to the
court. It does not, however, guarantee any substantiative relief in the form of
custody,
visitation or contact rights. To obtain such rights, the party must overcome the
presumption
of a legal parent (see Sections 1-3 above).
b. Intervention in Juvenile Court Proceedings. ORS 419B.116.
In order to intervene in a juvenile court proceeding, a person must allege and
prove that
he/she has had a “care giver relationship”. The care giver relationship must
have existed
during the year preceding the initiation of the juvenile court proceeding, for
at least 6
months during the juvenile court proceeding, or for at least one-half of the
child’s life if the
child is less than 6 months of age. In order to demonstrate the care giver
relationship, the
person must also show physical custody or shared residence with the child, and
that the
person has provided the child on a daily basis with the love, nurturing and
other necessities
required to meet the child’s psychological and physical needs. An intervener in
a juvenile
court proceeding will be given notice of court proceedings, the opportunity to
present
evidence and the opportunity to be considered as a visitation or placement
resource for the
child.
c. Rights of Limited Participation In Juvenile Court. ORS 419B.875.
Persons who do not meet the care giver standards for full intervention may
nevertheless
qualify for rights of limited participation. The person must file a motion and
affidavit with the
juvenile court at least two weeks before a proceeding in the case in which
participation is
sought. If the petition is granted, the court will determine what rights are
given to the
person, but rights will generally include at least notice of hearings and the
right to present
evidence.
“***Persons seeking intervention or rights of limited participation in juvenile
court must also
prove to the court that the other participants (e.g., parents, child’s attorney,
Department of
Human Services) cannot adequately protect the best interests of the child or
adequately
present the case.”
d. Notice to Grandparents in Juvenile Court Proceedings. ORS 419B.875.
If a legal grandparent of a child requests in writing and provides contact
information to DHS,
the agency must give the legal grandparent notice of a hearing concerning the
child and
give the legal grandparent an opportunity to be heard. This does not make the
legal
grandparent a party to the proceeding.
5. Modification of Psychological Parents/Grandparent Visitation and Custody
Orders
a. Modification of Orders under Amended ORS 109.119.
For cases decided under Amended ORS 109.119 (effective July 31, 2001), once a
visitation
or custody order is issued, although the matter has not been conclusively
decided under
a constitutional analysis, there is no need to re-litigate the issue of the
presumption of the
natural parent. In visitation cases, the modification standard is the “best
interest of the
child.” In custody cases, before the best interest standard is reached, a moving
party will
have to show that there has been a substantial and unanticipated change of
circumstances.
b. Modification of Pre-Troxel Pre-Amended ORS 109.119 Orders.
In custody and visitation cases decided before Troxel and before Amended ORS
109.119,
the modification standard is unclear. It may be necessary to litigate and
demonstrate, in
a modification proceeding, that the psychological parent or grandparent has
overcome the
constitutional presumption in favor of the natural parent.
6. Juvenile Court Proceedings
a. Authority. ORS Chapter 419B (dependency); ORS Chapter 419C (delinquency,
criminal--dispositional stage only).
b. How the State Obtains Custody of A Child.
The State of Oregon may obtain legal custody of a child if the child commits an
act which
would be a crime of they were adult, or if the child is subject to abuse,
neglect, or
abandonment by the parent or custodian. The state may also obtain custody of
runaways.
When the state obtains custody, it almost always places the child with State
Office for
Services to Children and Families, now known as Department of Human Services
(DHS),
although it does have authority to place the child with a grandparent, blood
relative or other
appropriate person. DHS, by statute, must now take reasonable efforts to give
notice to
relatives and to favor relative placements over stranger placements. However, in
the past
this preference has often been ignored. Sometimes no contact is made with the
extended
family. Other times, DHS has a built-in prejudice against extended family
because they fear
the extended family will take the side of the former custodial parent and
interfere with their
efforts.
c. Rights of Third Parties in Juvenile Court.
Juvenile Court proceedings are usually open to the public, particularly in
non-criminal
matters. See Section 4 above for rights of intervention and limited
participation by third
parties. Apart from those rights, the court is not required to hear from an
extended family
member unless he or she is called as a witness by the state (through DHS) or a
party
(mother, father or the child--through their attorneys). However, if a legal
grandparent of a
child requests in writing and provides contact information to DHS, the agency
must give the
legal grandparent notice of a hearing concerning the child and give the legal
grandparent
an opportunity to be heard. This does not make the legal grandparent a party to
the
proceeding. Persons interested in obtaining or maintaining their relationship
with a child
in the custody of the state should consider hiring an attorney and filing for
intervention or
rights of limited participation (see discussion above) and stay in close contact
with the
following individuals:
i. DHS Caseworker: Consult phonebook for branch office nearest your home.
ii. Juvenile Court Counselor: Multnomah County: 503-988-3460; Washington County:
503-846-4572; Clackamas County: 503-655-8342.
iii. Court Appointed Special Advocate (CASA). Multnomah County: 503-988-5155;
Washington County: 503-846-8307; Clackamas County: 503-723-0521. An
advocate appointed by the court to look after the best interests of the child
and
report information to the court. Check with the Juvenile Court counselor for the
name of the CASA, if one exists.
iv Child's Attorney. A court may, but is not required to appoint an attorney for
the
child. Again, check with the court, through the Juvenile Court counselor, for
the
name of the attorney.
v. Attorneys for Mother and Father. Again, check with the court to get in
contact with
mother or father's attorney.
vi. Citizens Review Boards (CRBs). There are two CRB offices for the Portland
metropolitan area; the first being Multnomah County CRB, 123 NE 3rd Avenue,
Suite
280, Portland OR 97232 (P: 503-731-3007), and the second (and main office) in
Salem, Oregon (1-503-986-5861). CRBs do have field managers at each
courthouse, but calls must go through either Salem or Portland. CRBs are
volunteer panels established under state law assigned to review DHS cases
approximately every six months. CRBs are volunteer citizens. While they do not
participate directly in Juvenile Court proceedings, they prepare reports and
make
recommendations regarding whether DHS is on track in its placement and whether
the child needs or is receiving appropriate representation from the CASA or
attorney.
d. Special Concerns.
i. If you do not believe the child's interests are being adequately represented,
you
may ask the court, through the Juvenile Court counselor, to appoint an attorney
for
the child.
ii. It is important in Juvenile Court that your primary goal be the best
interests of the
child. The court, and particularly DHS, are extremely wary where an extended
family member strongly takes the position of the parent who has lost custody. In
such a case, DHS may feel that the extended family member is interfering with
their
attempts to rehabilitate the parent, and DHS fears that the extended family
member
may not be able to protect the child. In some cases, it may be appropriate to
strongly advocate the position of the parent who has lost custody. In other
cases,
it may be more appropriate to give emotional (and sometimes financial) support
to
the parent, without "taking their side."
iii. The state provides a foster care subsidy to children placed with strangers,
but in
many cases denies that subsidy to children placed with extended family members.
An extended family member who receives physical custody of the child should make
every effort to seek any foster care subsidy which may be available (TANF, Title
IV(E); Non-Needy Relative Grant and/or the Oregon Health Plan).
7. Adoption
a. Authority. ORS 109.305-109.410.
b. Eligibility.
Any person may seek to adopt a child. However, an adoption will not be granted
unless the
consent (or a waiver of the consent) is received from the child's birth parents.
If the child's
birth parents' rights have been terminated, then DHS must give its consent to
the adoption.
A birth parent's consent may be waived if paternity has never been established
or if the
birth parent willfully neglected or abandoned the child for at least one year
prior to the
adoption petition.
c. Relief Available.
If the adoption is granted, the person becomes the legal parent of the child.
The effect of
the adoption is to terminate the birth parents' rights.
d. Special Concern--Adoption and the Termination of Grandparents' Rights.
Since an adoption terminates the rights of the birth parents, it also has the
effect of
terminating the blood relationship of the grandparents. Therefore, it may be
important to
intervene in an adoption proceeding to protect your rights. Intervention has its
own
problems.
Notice to grandparents is required only in stepparent adoptions and then a
motion for
visitation rights must be filed within 30 days (see Section 6(e) below).
In non-stepparent adoptions. you may never find out about a pending adoption,
because
the law does not require notice to be given to extended family members--only to
birth
parents. Even if you do intervene, the court may permit the adoption to proceed
and not
award you any visitation with the child. Although it has not been conclusively
determined,
when a conflict exists between an extended family member and the new adoptive
family,
the court will give preference to the rights and concerns of the new adoptive
family over the
extended family member.
A grandparent who requests but is denied a request to be the adoptive parent may
a limited
right to appeal to the Circuit Court for a review of the agency (DHS) decision.
See also Section 6(d) above and Section 8 below regarding guardianship options
as
alternatives to adoption.
e. Notice/Visitation Rights in Stepparent Adoptions. ORS 109.309; ORS 109.332.
In stepparent adoptions only, grandparents must be given notice of the proposed
stepparent adoption by receiving a true copy of the adoption petition. Within 30
days of
service of the petition, a grandparent may file a motion with the court seeking
visitation
rights after the adoption. Visitation rights will only be awarded if it can be
established, by
clear and convincing evidence, that visitation with the grandparent(s) is in the
best interests
of the child; that a substantial relationship existed prior to the adoption; and
that
establishing visitation rights will not interfere with the relationship between
the child and the
adoptive family. This law does not apply to independent or Department of Human
Resources (DHS)-sponsored adoptions.
f. Open Adoption Agreements. ORS 109.305.
In both stepparent adoptions and non-stepparent adoptions (including independent
and
DHS cases), birth parents and adoptive parents may sign an "open adoption"
agreement,
allowing visitation with grandparents. This agreement is enforceable by the
courts but
does not otherwise affect the adoption.
8. Guardianship
a. Authority. ORS 109.056; 125.055; ORS 419B.366.
b. Types of Guardianship.
i. Juvenile Court Permanent Guardianship. The Juvenile Court may appoint a
permanent guardian for a child as an alternative to a formal termination of
parental rights. Although parental rights are not terminated, the parent could
never have physical custody restored. The terms of contact between the child
and the parent is determined by the Court and the guardian.
ii. Juvenile Court Non-Permanent Guardianship. The Juvenile Court may now also
terminate DHS involvement and, maintain wardship but award a more traditional
guardianship to a foster parent, relative or third-party. Unlike a permanent
guardianship, this guardianship option provides for modification and a potential
future termination and restoration of a natural parent’s rights (ORS 419B.366).
iii. Civil Court Guardianship. Any person may apply to the court to become a
guardian of a minor under ORS 125.055. A person petitioning for a guardianship
to the court must give appropriate notice to the child, the child's recent
custodians, and the child's birth parents. In addition, the person must show a
need for the guardianship, because the child's essential needs for physical
health
and safety are not being met. The court must find by clear and convincing
evidence that the guardianship is necessary. The Court of Appeals has recently
applied Troxel v. Granville to the guardianship context and therefore, to
establish
a guardianship, over the objection of a birth parent, it will be necessary to
overcome the constitutional presumption in favor of the birth parent (see
Section
1 above).
iv. Delegation of Parental Powers. Under another statute, ORS 109.056, a parent,
through a "power of attorney," can delegate their parental powers to another for
a period not exceeding six months. This does not need to be filed with a court,
but the power of attorney should be properly drafted and signed before a notary.
c. Relief Available.
A guardian has the powers and responsibilities of a parent, except that the
guardian is
not responsible to provide his or her personal funds to support the child. A
guardian may
petition for appropriate public assistance or child support from one or both of
the child's
parents.
CAUTION: This information is a general guide to your rights. Specific rights and
remedies will vary with each case. This guide is not a substitute for legal
advice. You should consult with an attorney in any matter concerning your rights
or the rights of your children or grandchildren. You may contact the
Oregon State Bar Lawyer Referral Service for the name and number of an attorney
who may be able to assist you. Telephone: 503-684-3763 or toll-free
in Oregon 1-800-452-7636
Prepared by Mark Kramer
KRAMER & ASSOCIATES
520 SW Sixth Street, Suite 1010
Portland, Oregon 97204-1595
Phone (503) 243-2733
Facsimile (503) 274-4774
Email: mark@kramer-associates.com
Copyright © 2008 by Mark Kramer