Family law cases involving issues of child custody and/or parenting time are emotionally challenging for all concerned. The typical dispute involves a child’s two parents, each trying to convince the trial judge that she or he is more suited to be the primary custodial parent, or is deserving of more parenting time with the child than the other parent will agree to, or some variant of one or the other. Family law judges in Oregon, when deciding these emotional tug-of-wars, are required by statute to give primary consideration to “the best interests and welfare of the child.” The governing statute provides the court with a checklist of factors to be considered in making that “best interests” determination.
When, however, the dispute is between a child’s parent(s) on the one hand, and non-parents on the other (such as the child’s grandparent, aunt, uncle, step-parent, adult sibling, special friend), the decision turns on several considerations, of which the child’s “best interests” is only one. Indeed, there are several hurdles a third-party must clear before the court even considers whether the child’s “best interests” are served by granting the non-parent custody or visitation. What makes these type of disputes different from the typical parent vs. parent imbroglio, is that the court must account for the legal parent’s constitutionally protected right to make decisions regarding the care, custody and control of the child. The U.S. Supreme Court has ruled that this is a “fundamental” right which must be taken into account by a court when deciding such cases.
The Oregon statute which allows non-parents to seek custody of, or visitation with, minor children requires the non-parents to first demonstrate to the court that they have established sufficient emotional ties with the child such that an award of custody or visitation might be appropriate. In order to even be considered for custody, the third-party must demonstrate a “child-parent relationship” with the child. Such a relationship includes residing in the same household with the child over a period of six months, during which time the non-parent must also have provided the child with the care, nurturing and necessities of life that a parent would typically provide. If the third-party is seeking visitation, he or she must show the existence of “an ongoing personal relationship” over a period of at least one year, during which time the non-parent has provided significant interaction and companionship with the child.
Assuming the non-parent can demonstrate a “child-parent relationship” or an “ongoing personal relationship”, the next step is for the non-parent to demonstrate that the child’s legal parent does not act in the best interests of the child. There are a variety of factors courts will consider in determining whether the child’s legal parent is acting counter to the child’s best interests, but the statute also puts the burden of proof squarely on the non-parent to prove that point. If the non-parent is able to establish the fact that the child’s mom or dad is not acting in the child’s best interests, then the court may award custody or visitation to the non-parent, but only if such an award is, you guessed it, in the “best interests” of the child.
Not surprisingly, these third-party custody/visitation disputes can unleash powerful emotions on both sides. On the one hand, you have non-parents who may have developed deep psychological bonds with a child. These third-parties love the child, want what is best for the child and desire to be involved in the child’s life. On the other hand, the child’s parent may understandably be incensed by what she or he considers to be an outsider’s interference with that parent’s constitutionally protected right to raise the child as the parent sees fit.
In short, while a non-parent should certainly consider whether a child’s “best interests” are served by commencing legal action against a child’s parents in order to obtain custody or visitation, the additional legal hurdles to be cleared in any such proceeding merit careful consideration and, may we suggest, experienced legal counsel.
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