Grandparent's Rights / Third Party Custody

This can be a confusing area of law. If you are a grandparent, relative, or a non-relative who is concerned about the welfare of a child in your life we can assist you in determining the best course of action.

 

In Oregon, the same standard applies to grandparents seeking custody or visitation that applies to any other relative or non-parent.

 

The relevant code section is found at ORS 109.119

 

Any person, whether a relative of the child or not, can petition the court for custody or court ordered visitation if they can show that they have "established emotional ties creating a child-parent relationship or an ongoing personal relationship" with the child.  The distinction between "child-parent relationship" and "ongoing personal relationship" is important. In order to get custody of a child, a non-parent must prove a "child-parent relationship."  For visitation, only the lower standard of "ongoing personal relationship" is necessary.

 

In addition to the relationship requirement, a non-parent seeking custody or visitation must also prove the natural parent does not act in the child's best interests.  What this means differs slightly depending on whether or not you are seeking custody or just visitation.

 

Child-Parent Relationship

 

As stated above, to get a custody order, a non-parent must show that a "child-parent relationship" exists. That term is defined at ORS 109.119(10)(a) as follows:

 

(a) Child-parent relationship means 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 childs psychological needs for a parent as well as the childs physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.

 

This basically means the child must have resided with the person sometime during the six months before the petition for custody is filed and that person took care of the child as a parent would, meeting all of the child's basic needs.

 

Ongoing Personal Relationship

 

To get court-ordered visitation, a non-parent does not have to show he or she lived and cared for the child, but does have to prove an "ongoing personal relationship," which is defined at ORS 109.119(10)(e) as the following:

 

Ongoing personal relationship means a relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.

 

This definition does not require that the person lived with the child but it does require that the person had a continuing relationship with the child that was continuous for at least one year.

 

The Parent Does Not Act in the Best Interests of the Child

 

In addition to the relationship requirement, a person seeking custody or visitation over a natural parent's objection must rebut the presumption that the natural parent acts in the child's best interests.  This basically means that you must show that the parent's conduct is somehow harming the child.  When a non-parent is only seeking visitation, the statute lists the following factors as relevant to this determination:

 

(A) The petitioner or intervenor is or recently has been the childs primary caretaker;

(B) Circumstances detrimental to the child exist if relief is denied;

(C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;

(D) Granting relief would not substantially interfere with the custodial relationship; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

 

If the non-parent is seeking custody of the child, the statute says that the court should also consider the following factors:

 

(A) The legal parent is unwilling or unable to care adequately for the child;

(B) The petitioner or intervenor is or recently has been the childs primary caretaker;

(C) Circumstances detrimental to the child exist if relief is denied;

(D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

 

 

 

 

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