Any time a grandparent (or any third party, non-parent caretaker of a child) can show a substantial degree of involvement in any child's life, they have the foundations for a third-party custody or "psychological parent" case in Oregon. Grandparents, step-parents, close family friends, and many other types of non-parents regularly care for children in this state and ORS 109.119 provides the structure for them to assert their rights of custody, contact, visitation, and other rights. But in each case, whether seeking temporary or permanent custody or visitation, the petitioning third party must be able to rebut the presumption that the legal parents acts in the best interests of the child.
The rights of parents are rooted in the US Constitution and overcoming those parental rights is a serious task: whether based on a child-parent relationship or an ongoing personal relationship, the rebuttal of this presumption is the cornerstone of psychological parent cases.
Is it easy? Not always. Is it necessary -- always.
Oregon's foundational third-party case is O’Donnell-Lamont and Lamont, 337 Or 86 (2004) and in that case the Oregon Supreme Court made clear that a petitioner can present evidence of any of the ORS 109.119(4) listed factors and any other relevant evidence. The factors include whether the third party is or recently has been the child’s primary caretaker, if there would be circumstances detrimental to the child exist if custody was not granted to the third party, whether the legal parent has fostered, encouraged or consented to the relationship between the child and the third party, if granting custody would not substantially interfere with the parent's custodial relationship, whether legal parent has unreasonably denied or limited contact between the child and the third party, and/or if the legal parent is unwilling or unable to care adequately for the child. There are often multiple and overlapping circumstances facing each third party that can be used to support one or more of these factors.
Ok. So you've got evidence to show the legal parent isn't acting in the best interest of the child. But when does parental fitness matter? Time of trial is key, but it is informed by the parent's historical fitness.
No case is the same and it is often the case the psychological parent cases are straightforward: one or both legal parents are clearly not in the child's life, clearly cannot support or take care of the child, or otherwise make it an easy job for the court to grant custody rights to a third party.
Often, however, it is not that easy. Parental fitness is most readily gauged at or near the time of trial, as that will be the most contemporaneous demonstration of the ability of the parent to act in the best interests of the child. However, present fitness is also informed by a parent's historical efforts and abilities with respect to the children.
Even if some of the factors are met, there is a steep burden facing psychological parents to gain custody over a legal parent who objects. Levine Law Center regularly works for both legal parents and third-party petitioners in these psychological parent cases. If you'd like to discuss your case with a member of the Levine Law Center, please contact us today to set up a no-hassle consultation.