April 10, 2011

Do I Have The Right To Visit My Grandchildren? Oregon’s Third Party Custody Laws Part II

We previously blogged about grandparents and other third parties obtaining custody of children not legally their own.  A third party custody case is the most difficult type to pursue, because of the constitutional protections given legal parents in making decisions regarding their children, including the decision to cut off contact between a child and a grandparent.  What if you were visiting the grandchildren regularly, and for no legitimate reason, the parent decides to cut off all contact?  Oregon allows grandparents and other third parties to request visitation and contact with children. It’s easier to obtain an order granting visitation and contact vs. obtaining custody, because of the lesser intrusion into the legal parent’s rights. These cases come down to (1) establishing an ongoing personal relationship, and (2) rebutting the presumption that the legal parent is acting in the child’s best interests by denying contact.

To establish an “ongoing personal relationship” under ORS 109.119, the third party must show that they have established ” [a] relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.”

The same presumption that the legal parent is acting in the best interests of the child applies, even if the decision is to cut off a wholesome and healthy relationship. If the legal parent makes the decision to cut off contact with a child over the objection of a grandparent or other third party, the court considers the following nonexclusive list of factors in determining if the presumption has been rebutted.

  1. The petitioner or intervenor is or recently has been the child’s primary caretaker;
  2. Circumstances detrimental to the child exist if relief is denied;
  3. The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;
  4. Granting relief would not substantially interfere with the custodial relationship; or
  5. The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

The rebuttal factors to establish visitation and contact rights are easier to prove than the rebuttal factors to establish custody or guardianship.

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 lawsuit requesting visitation and contact with your child by a grandparent or third party, or are interested in getting visitation or contact with a child not legally yours, you should consult with an experienced family law attorney. The lawyers at Stephens & Margolin LLP have extensive experience in third party custody cases.