April 9, 2011

Can I Get Custody Of My Grandchildren? Oregon’s Third Party Custody Statute

As part of our Oregon Divorce practice, we talk to a lot of people interested in obtaining custody of children that are not legally their own.  Frequently it is grandparents seeking custody of their grandchildren. A common scenario is where a son or daughter with social or chemical problems leaves a child with a grandparent for an extended period of time, and then suddenly wants to cut off all contact between the grandparents and grandchild. While grandparents seeking custody rights are a common scenario, Oregon’s third party custody statute does not restrict petitioners to just grandparents. Rather, anyone that has established a “child-parent relationship” with the child may ask for custody.  Legal parents have constitutional rights in authority over their legal children, and are presumed to be acting in a child’s best interests, even if the “act” is to cut of contact between the child and a loving relative. These cases come down to two parts, (1) establishing a child parent relationship, and (2) rebutting the presumption that the legal parent’s decision to deny contact is in the child’s best interests.

To establish a “child-parent relationship” under ORS 109.119, the third party must show that they have established:

“[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 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 non related 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 order to obtain custody over the objection of a legal parent, the third party must rebut the presumption that the legal parent is acting in the child’s best interest.  The court considers the following nonexclusive list of factors in determining if the presumption has been rebutted.

  1. The legal parent is unwilling or unable to care adequately for the child;
  2. The petitioner or intervenor is or recently has been the child’s primary
  3. caretaker;
  4. Circumstances detrimental to the child exist if relief is denied;
  5. The legal parent has fostered, encouraged or consented to the relationship
  6. between the child and the petitioner or intervenor; or
  7. The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

Third party cases can be complex, and counter-intuitive, because the court’s initial consideration is not what is in a child’s best interests, but the legal rights of the legal parent. If you are faced with a third party custody lawsuit, or interested in obtaining custody of a child, you should consult with an experienced family law attorney.  The lawyers at Stephens & Margolin LLP have extensive experience in third party custody cases.