New Case Law – Third Party Visitation
On February 23, 2011, the Oregon Court of Appeals issued an opinion regarding third party visitation claims. In Digby and Meshishnek, the nonparents, who had acted as foster parents for the children, were awarded visitation with two minor children by the trial court. They had asked for visitation due to having a “child-parent relationship” as set forth in ORS 109.119(10)(a). The requirements for demonstrating such a relationship are: 1. That the relationship existed within the six months preceding filing of the petition; 2. That the party making the claim lived in the same household as the child or had physical custody of the child; 3. That the party 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 4. That the 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. The claim cannot be made by a nonrelated foster parent unless the relationship exceeded 12 months. A court must find that the nonparents have proved the “child-parent relationship” by a preponderance of the evidence.
The trial court awarded visitation to them based upon the grounds that they had established an “ongoing personal relationship” with the children as described by ORS 109.119(10)(e). To prove such a relationship a party must prove: 1. That the relationship lasted at least one year; and 2. That it was based on interaction, companionship, interplay and mutuality. This is, obviously, a much less strict test than the test required to prove a “child-parent relationship.” A court must find that the nonparents have proved the “ongoing personal relationship” by clear and convincing evidence.
The court of appeals held that the trial court erred in awarding visitation on the basis of an ongoing personal relationship. The statutes defining “child-parent” relationship and “ongoing personal relationship” have
separate requirements that must be shown by different burdens of proof, thus, an ongoing personal relationship is not “lesser included” within an allegation of a child-parent relationship.
Unfortunately, it is common for family law practicioners to gloss over the very technical legal aspects of claims. This case demonstrates the importance of having very qualified legal counsel who know the intricacies of pleading technicalities. The lawyers of Stephens & Margolin LLP have this level of technical expertise and are able to take cases from the trial court through the appellate courts.
The full opinion can be found here: http://www.publications.ojd.state.or.us/A139448.htm
