In 2001, Oregon’s third party custody and parenting time statute was radically overhauled as a result of the U.S. Supreme Court’s decision in the Troxel and Granville case. In Troxel, the paternal grandparents sought an increase in visitation with their grandchildren, against the wishes of their mother. The Washington trial court ruled in the grandparent’s favor and the mother appealed. The Washington Supreme Court and the U.S. Supreme Court ruled in the mother’s favor, holding that the 14th Amendment of the U.S. Constitution “protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.”
As a result of this decision, the Oregon legislature drastically revised ORS 109.119, the third party custody statute, to include a presumption that a legal parent acts in the best interests of his or her child. Now, in order to prevail, a grandparent, third party or other non-parent would have to rebut the presumption that the legal parent is acting in the best interests of the child. The statute list various factors the court will look at to determine whether the third party has successfully rebutted the presumption, including whether the non-parent is or has recently been the child’s primary caretaker; whether the legal parent is unwilling or unable to care adequately for the child; whether the legal parent has fostered, encouraged or consented to the relationship between the third party and the child; whether circumstances detrimental to the child exist if the third party’s request for custody or visitation is denied; and whether the legal parent has unreasonably denied or limited contact between the child and the third party. Only after the third party has successfully rebutted the presumption favoring the legal parent will the court make a determination as to what is in the best interests of the child.
In order to obtain custody, a third party would have to prove that a child-parent relationship exists, or did exist, in whole or in part, within the six month period preceding the filing of the third party custody petition. In order to obtain visitation with the child, the third party would have to prove that he or she has “an ongoing personal relationship” with the child for at least one year.