March 1, 2009

New Case Law – Taking the kids back from Grandma

As a Portland Oregon divorce law firm, Stephens & Margolin LLP is dedicated to keeping up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.

On February 25, 2009, the Oregon Court of Appeals published an opinion in Nguyen and NguyenThe case is an appeal from a custody award to grandparents.  The child’s mother appealed the trial court’s award of custody of the child to grandparents and the Oregon court of appeals agreed with Mother.   

The grandparents had provided the majority of the child’s care for a number of years.  Mother had a history of abuse from the child’s father and a lack of stability.  She was arrested a few years prior to trial for a drug matter, but the charges were later dropped.  The court held the Mother was not a suitable parent, and that grandparents were a better choice for the child.  Unfortunately, the ruling was not in line with Oregon caselaw.

ORS 109.119 provides the requirements that a non-biological parent, such as a grandparent must meet in order to be awarded custody.  

In order for nonparent petitioners to gain custody, they must overcome “a presumption that the legal parent acts in the best interest of the child.”  ORS 109.119(2)(a).  The court must find “by a preponderance of the evidence,” ORS 109.119(3)(a), that the presumption has been rebutted in order to grant custody to a nonparent over a legal parent’s objection.  Finally, if the nonparent has established a child-parent relationship and overcome the presumption in favor of the legal parent, ORS 109.119(3)(a) provides that the court shall grant custody to the petitioner only “if to do so is in the best interest of the child.” 

Here, the Oregon Court of Appeals held that at the time of trial, the grandparents did not prove that the mother was unable or unwilling to adequately parent T and that, under the totality of the circumstances, grandparents have not rebutted the statutory presumption that mother acts in the best interest of T, and that mother therefore cannot be deprived of custody in favor of grandparents. 

The Court of Appeals remanded the case to the trial court for further evidence as to what a proper transition plan to return the child to mother should be. 

The entire opinion can be found at

The case teaches us that trial courts sometimes rule based upon emotion despite the clear legal requirements needed to award custody to a child’s grandparent.  These cases are often overturned by the court of appeals.  It does not matter whether the grandparents are the better parents, what matters is that the biological parent is adequate as a parent.  It is crucial for both biological parents and grandparents, or other third parties seeking custody, to have competent legal counsel that provides them with objective advice regarding the potential risks of litigation.   

The lawyers, including Daniel Margolin, who focuses part of his pratice on family law appeals, at Stephens & Margolin LLP can assist parties going through a third party or grandparents custody case or an appeal from such a case.  All of the lawyers at the firm have experience with grandparent’s rights cases.  As this case shows, it is crucial to have a competent attorney at both the trial court and appellate level. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens & Margolin LLP