Grandparent’s Rights are just as important as Father’s Rights.
Don’t Grandparents Have Rights Too? Grandparents have rights under Oregon law to have custody and visitation with their grandchildren. Those rights are set out in ORS 109.119. That law says that persons, not just grandparents, but step-parents, aunts, uncles, foster parents or relatives by blood or marriage can file a petition with the court in the county where the children are located to seek custody or visitation with children or to intervene in an existing case, like a divorce or custody case between the parents of the grandchildren. This law is called the psychological parent statute. I’ll refer to grandparents from hereon, but remember the statute covers other people too, not just grandparents.
Under ORS 109.119 grandparents can get custody or visitation but they have to meet certain requirements. For custody, grandparents have to prove that they have or had a child-parent relationship with the child. Child-parent relationship means that at some point within the last 6 months the grandparents had physical custody of the child or lived in the same household with the child, provided food, clothing, shelter and other necessities and fulfilled the child’s psychological needs for a parent.
Grandparent’s Rights — Grandparents can file a petition with the court in the county where their grandchildren are located to seek custody, visitation, or to intervene in an existing case.
Even if a grandparent can’t meet those requirements he or she may still be able to get visitation with their grandchildren. To meet that standard, a grandparent must show that she or he has an ongoing personal relationship with a child. That means for a least one year, with substantial continuity, there has been companionship, interplay and mutuality. If that standard is met than a grandparent can get a court ordered regular visitation schedule.
There is one other important requirement however to be able to get custody or parenting time, over the objection of the custodial parent. Under ORS 109.119(2) there is a presumption that the legal parent acts in the best interests of a child. In Troxel v. Granville, 530 US 57 (2000) a United States Supreme Court case, the court held that held that the Due Process Clause of the United States Constitution “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” 530 U.S. at 66, 120 S.Ct. 2054. The court concluded that a Washington statute that authorized a court to award visitation rights to any nonparent if the “visitation may serve the best interest of the child” unconstitutionally infringed upon the parent’s right to make decisions concerning the child. Oregon courts have, and are bound to, follow the Supreme Court’s ruling.
What this means is that in addition to making the showing of the relationship with their grandchildren, grandparents have to show that the custodial parent (which is often the grandparents own son or daughter) do not act in the child’s best interests. In other words the grandparents have to overcome the constitutional right that parents have to parent their children, including the right to exclude grandparents from their children’s lives. This constitutional right to parent can be a high burden to overcome.
However, it can be overcome in some cases. If a custodial parent has placed the children with the grandparents in the past, if the custodial parent have drug, alcohol or psychological problems which impair their ability to care for the children or if circumstances detrimental to the children exist if grandparents are not awarded custody, the presumption can be overcome.
These cases are very fact driven and legally complicated.
I have the experience with Grandparent’s Rights custody cases, both bringing them and defending them, to help you with your case. If you live in Bend, Redmond, or any region of Central Oregon and think you need help with Grandparent’s Rights, or would simply like to set up an initial consultation, please contact me.