One of the most difficult situations to see as a lawyer is when grandparents or third parties are cut out of a child’s life by the legal parents for bad reasons, or no reason at all. Our attorneys have helped many grandparents and third parties obtain custody or visitation with grandchildren, as well as helping biological parents in third party custody cases. Frequently it is grandparents seeking custody of their grandchildren. A common scenario is where a son or daughter with social or drug 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.
- The legal parent is unwilling or unable to care adequately for the child;
- The petitioner or intervenor is or recently has been the child’s primary
- Circumstances detrimental to the child exist if relief is denied;
- The legal parent has fostered, encouraged or consented to the relationship
- between the child and the petitioner or intervenor; or
- 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 or retaining custody of a child, contact us for experienced help. The lawyers at Stephens & Margolin LLP have extensive experience helping families with third party custody cases.
Stephens & Margolin LLP
Review for services rendered by Sean Stephens
Sean Stephens and his team assisted in a very complex 3rd part custody lawsuit. The team was very responsive, informative, professional and skilled in negotiating in our best interests and in the child’s best interests. Sean was able to settle an agreement for my husband and I to obtain sole custody of the child without a court battle- we didn’t think that was going to be possible. We are very pleased with the outcome and would highly recommend Sean Stephens in handling of complex child custody cases.