Grandparents, step-parents, foster parents, and other extended family members often take on important roles in raising children. Usually, these relationships work out well and the children benefit from having multiple adults who care for them, but what happens when there’s a dispute about custody or visitation? Does the grandparent or other third-party have any rights? The answer depends on the nature of the relationship between the adult and the child.
If the grandparent/third-party wants to seek custody of the child, she must first prove that she’s had a “child-parent relationship” with the child within six months of the time of the court filing. What is a child-parent relationship? Oregon law defines it as a relationship in which the adult either had physical custody of the child or resided with the child and provided the child with basic necessities such as food, clothing, shelter, care, education, and discipline. It is a relationship that “fulfilled the child’s psychological needs for a parent as well as the child’s physical needs.” ORS 109.119(10)(a).
If the grandparent/third-party wants to seek visitation, rather than custody, she must first prove that she has an “ongoing personal relationship” with the child. An ongoing personal relationship is defined as a “relationship with substantial continuity for at least one year, through interaction, companionship, interplay, and mutuality.” ORS 109.119(10)(b).
Once the grandparent/third-party is able to prove that she has either a child-parent relationship or the ongoing personal relationship, she must next prove that she can rebut the presumption that the legal parents act in the best interest of the child. Since grandparents/third-parties are not legal parents, they are viewed differently than legal parents in custody and visitation cases. The law presumes that if a legal parent wants to limit contact between a grandparent/third party and a child, that the legal parent in acting in the child’s best interest. It’s up to the grandparent/third-party to prove this is not true. The court looks at various factors to determine whether a parent is acting in the best interests of their child. Some of those factors include: whether the legal parent has encouraged or fostered the relationship between the grandparent/third-party and the child; whether the legal parent is unable or unwilling to care for the child; whether the grandparent/third-party currently is or has been the child’s primary caretaker; and whether the legal parent has unreasonably denied contact between the grandparent/third-party and the child.
Even if the grandparent-third-party is able to prove that the legal parent is not acting in the best interests of the child, there is still one final step in the process. The court must examine what is in the best interests of the child. In this step, the court looks at the same factors that it looks at in a custody and parenting time case between two legal parents. These factors are discussed in more detail in our blog post on custody. http://www.jensen-leiberan.com/blog/category/family-law-attorneys/custody/
Overall, grandparent/third-party custody and visitation cases are legally complex and it is important that you have an experienced family law attorney advocating for you if you are involved in this type of case.