It can be heartbreaking for grandparents to be denied the opportunity to visit their grandchildren, following a divorce or separation of the children’s parents, or be denied custody over them when they feel that a parent is acting against their grandchildren’s best interests. However, these situations are all too real, especially if the biological parent the children are alive and are opposed to their having custody or visitation. The reason for this stems from a US Supreme Court ruling that there is a legal presumption, under the United States Constitution, that fit parents act in the best interests of their children.
In most states, this presumption has been built into their state statutes. In Oregon, this presumption is also law, however there are certain instances when a grandparent can overcome the presumption and obtain third-party custody or visitation. In fact, Oregon doesn’t limit these rights to just grandparents or even a child’s blood relations. Under Oregon law, any third party, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, may file for custody or visitation. However, it is important to know the grandparents do not get any special rights; the same standard applies to grandparents seeking custody or visitation that applies to any other relative or non-parent.
However, it isn’t easy. A person can petition the court for custody or court ordered visitation if they can show that they have either a child-parent relationship, or an ongoing personal relationship, with the child.
And this distinction between a "child-parent relationship" and an "ongoing personal relationship" is very 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.
So, what defines a child-parent relationship? In general, a “child-parent relationship” means that you are or were serving as the primary guardian and caregiver (filling the traditional parental role).
More specifically, for purposes of obtaining third-party custody, Oregon legally defines a child-parent relationship as:
• A relationship that exists or did exist, in whole or in part, within the six months preceding filing for custody or visitation, 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.
Understandably, this is a high standard that you will need to meet to petition for custody. For visitation, you can meet this standard or the standard of showing an ongoing personal relationship, which does not require being a caregiver or psychological parent.
Oregon legally defines an ongoing personal relationship as:
• A relationship with substantial continuity for at least one year, through
• Interaction, companionship, interplay, and mutuality.
Even if you can show that your relationship with your grandchild fits one or both of these categories, that only allows you to petition for custody or visitation, it does not mean the court will grant your petition. You will still need to rebut the presumption that the parents are acting in the best interests of the child. And here, the standard of relationship again makes a difference.
If the court finds that a child-parent relationship exists, you need to rebut by a preponderance of the evidence, the presumption that the parent is acting in the child’s best interest. A “preponderance of the evidence” means that the evidence you present to the court shows that it is more likely than not that the parent is not acting in the child’s best interest.
If the court finds that a child-parent relationship exists, you need to rebut by clear and convincing evidence, the presumption that the parent is acting in the child’s best interest. “Clear and convincing” means that the evidence is beyond “more likely than not”, but is in fact, both clear and it is convincing, that it’s very likely true. Not quite “beyond a shadow of a doubt” but getting close.
So, what factors does a court consider in deciding whether or not to rebut the presumption whether it be by a preponderance or clear and convincing evidence? This depends on what the petitioner is asking for, custody or visitation. While the court can look at many factors, these factors will generally be considered (if they are applicable):
• The legal parent is unwilling or unable to care adequately for the child (custody).
• Allowing visitation would not substantially interfere with the custodial relationship (visitation).
• The petitioner is or recently has been the child’s primary caretaker (custody or visitation).
• The legal parent has unreasonably denied or limited contact between the child and the petitioner (custody or visitation).
• Circumstances detrimental to the child exist if custody/visitation is denied (Custody or visitation).
• Legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner (custody or visitation).
And finally, even if you have established emotional ties creating a child-parent relationship or an ongoing personal relationship with the child, and the court has determined that the parent’s presumption of acting in the best interests of the child, you still need to convince the court of one more extremely important thing: That granting custody or allowing visitation is in the best interest of the child. This is because, as with all issues that involve custody or visitation of a child, the best interest of the child is paramount.
Grandparent and third-party custody or visitation rights can be a confusing area of law, with many factual and legal rules and requirements you must be prepared to meet. If you are a grandparent, relative, or a non-relative who is being denied contact with your grandchildren or who is concerned about the welfare of a child in your life, we can assist you in determining the best course of action.