Oregon Family Law:

“Mr. Bradley helped us to obtain full custody of our grandchild. He is an outstanding lawyer, and we highly recommend him.”

˜ The Hopkins Family

Grandparents’ Rights

It has become increasingly difficult for grandparents to be awarded custody of, or parenting time with, their grandchildren. Oregon Revised Statute 109.119 controls this issue. Generally, grandparents have the right to see their grandchildren if they can show that the child’s parents do not act in the child’s best interests.

To be granted custody of your grandchildren, you must have had a “parent-child” relationship within the last six months. That means that you provided food, clothing, shelter, care and other things normally provided by a parent.

To be granted parenting time, you must have had an “ongoing personal relationship” with your grandchild for at least a year, through “interaction, companionship, interplay and mutuality.” That means that you had regular contact with your grandchild, played with them, enjoyed them, and that they enjoyed you.

The biggest hurdle is a requirement that the custodial parent not act in the best interests of the minor child. For custody cases, you must overcome a presumption that a parent acts in the best interests of their child by a preponderance of the evidence (more than 50%). For parenting cases, you must overcome that presumption by clear and convincing evidence.

Some of the factors a court examines to determine whether a parent acts in the best interests of their child in parenting time cases are:

  1. You have recently been the child’s primary caretaker;
  2. Circumstances detrimental to your grandchild exist if you are not granted parenting time;
  3. The legal parent has fostered, encouraged, or consented to the relationship between you and your grandchild;
  4. Granting you parenting time would not substantially interfere with the legal parent’s role as a custodial parent; and...
  5. The legal parent has unreasonably denied or limited contact between you and your grandchild.

(Note that it is likely that either factors 3 or 5 exist since they appear to be mutually exclusive).

Some of the factors a court examines to determine whether a parent acts in the best interest of their child when you are seeking custody of your grandchild are:

  1. The legal parent is unwilling or unable to adequately care for the child;
  2. The third party is, or recently has been, the child’s primary caretaker;
  3. Circumstances detrimental to your grandchild exist if you are not granted custody;
  4. The legal parent has fostered, encouraged, or consented to the relationship between you and your grandchild; and...
  5. The legal parent has unreasonably denied or limited contact between you and your grandchild.

As you no doubt noticed, the factors for being granted custody are similar to the factors for being granted parenting time.

Unfortunately, the Oregon Court of Appeals has said that these factors are examples only. Thus, you could show the existence of all factors and still not overcome the presumption that the legal parent acts in the best interests of their child. Or, you could overcome that presumption by not showing the existence of any of these factors. Thus, a court is given great discretion in making these determinations.

It has been my experience, based on trials and on decisions by the Court of Appeals, that winning these cases is unlikely unless the court appoints someone to conduct an "independent custody or parenting time" evaluation. Those are typically done by psychologists or licensed clinical social workers and cost between $2,500 and $5,000.

The same rules that apply to grandparents apply to others who have developed close relationships with minor children. In the past, I helped an unrelated family obtain custody of a young girl because one parent consented and the other parent was determined to not have sufficient skill to be an effective parent. I also helped a grandmother and grandfather obtain custody of their grandchild.

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We have represented hundreds of family law clients and would be honored to represent you. Call us at 541.344.3446 for your free consultation

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