2015 ORS 109.119¹
Rights of person who establishes emotional ties creating child-parent relationship or ongoing personal relationship
  • presumption regarding legal parent
  • motion for intervention

(1) Except as otherwise provided in subsection (9) of this section, any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief under subsection (3) of this section.

(2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.

(b) In an order granting relief under this section, the court shall include findings of fact supporting the rebuttal of the presumption described in paragraph (a) of this subsection.

(c) The presumption described in paragraph (a) of this subsection does not apply in a proceeding to modify an order granting relief under this section.

(3)(a) If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order.

(b) If the court determines that an ongoing personal relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by clear and convincing evidence, the court shall grant visitation or contact rights to the person having the ongoing personal relationship, if to do so is in the best interest of the child. The court may order temporary visitation or contact rights under this paragraph pending a final order.

(4)(a) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

(A) The petitioner or intervenor is or recently has been the child’s primary caretaker;

(B) Circumstances detrimental to the child exist if relief is denied;

(C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;

(D) Granting relief would not substantially interfere with the custodial relationship; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

(b) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

(A) The legal parent is unwilling or unable to care adequately for the child;

(B) The petitioner or intervenor is or recently has been the child’s primary caretaker;

(C) Circumstances detrimental to the child exist if relief is denied;

(D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

(5) In addition to the other rights granted under this section, a stepparent with a child-parent relationship who is a party in a dissolution proceeding may petition the court having jurisdiction for custody or visitation under this section or may petition the court for the county in which the child resides for adoption of the child. The stepparent may also file for post-judgment modification of a judgment relating to child custody.

(6)(a) A motion for intervention filed under this section shall comply with ORCP 33 and state the grounds for relief under this section.

(b) Costs for the representation of an intervenor under this section may not be charged against funds appropriated for public defense services.

(7) In a proceeding under this section, the court may:

(a) Cause an investigation, examination or evaluation to be made under ORS 107.425 (Investigation of parties in domestic relations suit involving children) or may appoint an individual or a panel or may designate a program to assist the court in creating parenting plans or resolving disputes regarding parenting time and to assist the parties in creating and implementing parenting plans under ORS 107.425 (Investigation of parties in domestic relations suit involving children) (3).

(b) Assess against a party reasonable attorney fees and costs for the benefit of another party.

(8) When a petition or motion to intervene is filed under this section seeking guardianship or custody of a child who is a foreign national, the petitioner or intervenor shall serve a copy of the petition or motion on the consulate for the child’s country.

(9) This section does not apply to proceedings under ORS chapter 419B.

(10) As used in this section:

(a) "Child-parent relationship" means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.

(b) "Circumstances detrimental to the child" includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child.

(c) "Grandparent" means the legal parent of the child’s legal parent.

(d) "Legal parent" means a parent as defined in ORS 419A.004 (Definitions) whose rights have not been terminated under ORS 419B.500 (Termination of parental rights generally) to 419B.524 (Effect of termination order).

(e) "Ongoing personal relationship" means a relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality. [1985 c.516 §2; 1987 c.810 §1; 1993 c.372 §1; 1997 c.92 §1; 1997 c.479 §1; 1997 c.873 §20; 1999 c.569 §6; 2001 c.873 §§1,1a,1e; 2003 c.143 §§1,2; 2003 c.231 §§4,5; 2003 c.576 §§138,139]

Notes of Decisions

Where custody has been awarded to nonparent, parent seeking to regain custody must show substantial change of circumstance before court may consider whether compelling reason still exists to deny custody to parent. Lear v. Lear, 124 Or App 524, 863 P2d 482 (1993)

Intervenor can have parent-child rela­tionship and fulfill child's psychological need for parent even though child maintains parent-child rela­tionship with both natural parents. Sorensen and Sorensen, 138 Or App 80, 906 P2d 838 (1995)

Court may withdraw intervenor status of per­son having parent-child rela­tionship where continued interven­tion is not in best interest of child. State ex rel State Office for Services to Children and Families v. Fuller, 156 Or App 128, 964 P2d 1140 (1998), Sup Ct review denied

In determining whether visita­tion with per­son having ongoing per­sonal rela­tionship with child is appropriate and in best interest of child, court must give significant weight to decision made by fit custodial parent. Harrington v. Daum, 172 Or App 188, 18 P3d 456 (2001)

Term "in part" in defini­tion of child-parent rela­tionship refers to when rela­tionship existed, not to acts es­tab­lishing nature of rela­tionship. Harrington v. Daum, 172 Or App 188, 18 P3d 456 (2001)

Parent qualifies for presump­tion favoring award of custody to fit natural parent only if parent has or once had some minimal level of participa­tion in care, custody and control of child. State v. Wooden, 184 Or App 537, 57 P3d 583 (2002)

Finding of substantial change in circumstances is not re­quired for modifica­tion of nonparent visita­tion rights. Meader v. Meader, 194 Or App 31, 94 P3d 123 (2004), Sup Ct review denied

Whether presump­tion that legal parent acts in best interest of child has been rebutted is determined by evidence as whole, not by presence or absence of listed factors. O'Donnell-Lamont and Lamont, 337 Or 86, 91 P3d 721 (2004)

Legal parent's pro­vi­sion of "adequate" care requires that care must be more than subsistence level, but need not rise to level of care available from nonparent. O'Donnell-Lamont and Lamont, 337 Or 86, 91 P3d 721 (2004)

Finding of circumstances detri­mental to child requires serious present risk of psychological, emo­­tion­al or physical harm. O'Donnell-Lamont and Lamont, 337 Or 86, 91 P3d 721 (2004)

Rebuttable presump­tion that legal parent acts in best interest of child adequately protects parent's due process right under United States Constitu­tion to have special weight given to fit parent's determina­tion of child's best interest. O'Donnell-Lamont and Lamont, 337 Or 86, 91 P3d 721 (2004)

Award of attorney fees against intervenor is improper absent finding that intervenor engaged in objectively unreasonable or meritless con­duct. Niman and Niman, 206 Or App 400, 136 P3d 1186 (2006)

Determina­tion re­gard­ing temporary visita­tion or contact rights does not have preclusive effect for purpose of final determina­tion of custody, visita­tion or contact rights. Poet v. Thompson, 208 Or App 442, 144 P3d 1067 (2006)

Nonparent and child who reside in same abode for many, but not all, weekends do not reside in same household on "day-to-day basis." Jensen v. Bevard, 215 Or App 215, 168 P3d 1209 (2007); Hanson-Parmer and Parmer, 233 Or App 187, 225 P3d 129 (2010)

Law Review Cita­tions

36 WLR 549 (2000); 82 OLR 1191 (2003); 44 WLR 297 (2007)

Chapter 109

Law Review Cita­tions

12 WLJ 569-589 (1976)

  • The Oregon Divorce Blog, Mar 1, 2009
    “On February 25, 2009, the Oregon Court of Appeals published an opinion in Nguyen and Nguyen. The case is an ap­peal from a custody award to grandparents. The child’s mother ap­pealed the trial court’s award... ORS 109.119 provides the require­ments that a non-biological parent, such as a grandparent must meet in order to be awarded custody. ”

1 Legislative Counsel Committee, CHAPTER 109—Parent and Child Rights and Relationships, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors109.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 109, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano109.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.