Oregon's grandparent visitation laws were done away with in 2001 and replaced with its current law. The law as it now stands has no specific provisions for grandparent visitation, but does have statutes providing for visitation by non-parents. Laws such as Oregon's are sometimes called "Psychological Parent" laws.
Impetus for the change was the 2000 decision of the U.S. Supreme Court in Troxel v. Granville.
The finding in this case was that "fit parents" are presumed to make decisions that are in the best interests of their children, even when they cut off contact with grandparents. The revamped Oregon law makes ample provision for the presumptive rights of parents.
Grandparents may seek visitation by intervening in a court case involving the child, such as a divorce, separation, annulment or custody case. If there is no ongoing court case, they may still petition the court of the county in which the child is living for visitation.
Who Can Petition for Visitation
Third parties petitioning for visitation should have emotional ties with a child that have created a child-parent relationship or an "ongoing personal relationship." The statute defines both of these relationships.
- A child-parent relationship must have existed in whole or in part within the six months preceding the filing of a request for visitation. In this relationship, the person should have had physical custody, resided in the same house, or otherwise provided for the child's daily needs. This person must have met "the child's psychological need for a parent as well as the child's physical needs." A person qualifying under this section of the law may qualify for "custody, guardianship, right of visitation or other right."
- The statute defines an "ongoing personal relationship" as one with with "substantial continuity for at least one year," featuring "interaction, companionship, interplay and mutuality." A person proving the existence of this type of relationship may qualify for "visitation or contact rights."
A child-parent relationship is harder to demonstrate than the ongoing personal relationship.
Grandparents whose aim is visitation, not custody, probably should sue under the second type of relationship. On the other hand, grandparents who can show a true child-parent relationship existing between the grandparent and grandchild will have a very strong case.
What They Must Prove
As stated earlier, the parents are presumed to have acted in the best interest of the child in refusing visitation, and the person seeking visitation must rebut that presumption. In deciding whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors including the following:
- The grandparent is or recently has been the child’s primary caretaker.
- Denying the request for visitation would be detrimental to the child.
- The relationship between the grandparent and the child has been encouraged or consented to by the parent.
- Visitation would not interfere with the custodial relationship.
- The legal parent has unreasonably denied or limited visitation.
Requiring the grandparents to show that denying visitation would be detrimental to the child means that Oregon employs the harm standard, even though the word "harm" does not appear in the statutes. The harm standard is a notoriously difficult standard to meet.
Grandparents' Rights After Adoption
In Oregon, adoption terminates visitation rights except when a stepparent adopts a child. Under Oregon law, grandparents should be notified if a grandchild is named in a petition for adoption. A grandparent can petition for visitation rights in the case of stepparent adoption, but the request for visitation must be filed within 30 days of the receipt of notice. When deciding whether to award visitation to a grandparent following a stepparent adoption, the court will consider many of the same factors as in any other visitation case.
Some Relevant Court Cases
Following Troxel and the subsequent change in Oregon law, several decisions awarding grandparents visitation were overturned on appeal.
- In Ring v. Jensen (2001), the appeals court overturned visitation awarded to a grandmother because her primary complaint was dissatisfaction with the amount of contact she was given.
- In Williamson v. Hunt (2002), the appeals court overturned an award of visitation time because the lower court did not give the wishes of the parent "special weight."
- In Meader v. Meader (2004), the appeals court reversed an order of visitation, finding that the lower court did not apply the Troxel standard, which requires that a parent's decision is presumed to be in the child's best interest. In addition, the grandparents did not rebut expert opinion about the toxicity of their relationships with children and grandchildren.
- In G.J.L. v. A.K.L. (2011), the court of appeals denied grandparents visitation even though they had been foster parents to their grandson for 14 months. The court ruled that the grandparents had not shown harm resulting from a denial of visitation. In addition, they had not shown that visitation would not harm the parent-child relationship.
Oregon does not provide do-it-yourself forms online for grandparents who seek visitation. This online guide has helpful information about grandparent visitation: Legal Guide for Grandparents and Other Relatives Raising Children.