Grandparents don't enjoy the same privileges as parents when it comes to visitation and custody of grandchildren. However, for some children, their grandparents have been the only parental figures they've known. A grandparent with strong ties to a grandchild may want to petition for visitation rights, or even custody.
A child's best interests are paramount to any case involving custody or visitation – including grandparent visitation. Nearly every state recognizes some form of grandparents' rights, but the laws vary. This article provides an overview of grandparent visitation rights in Oregon.
Biological and adoptive parents' rights to raise and care for their children are rooted in the U.S. Constitution, but those same constitutional protections don't extend to grandparents. In limited circumstances, grandparents can obtain court-ordered visitation.
There is no federal law governing grandparent visitation rights and the laws surrounding grandparent rights vary across the 50 states. However, the U.S. Supreme Court case Troxel v. Granville is the basis for grandparent visitation laws in several states. In Troxel, the Supreme Court emphasized that grandparent rights shouldn't interfere with the rights of "fit" or stable parents. Additionally, grandparent visitation is appropriate only when it serves a child's best interests. Surprisingly, the Troxel case upheld the constitutionality of a broad Washington grandparent visitation law, but led many states to rewrite more restrictive grandparent visitation laws.
Oregon law presumes that a child's parents will act in the child's best interests. A grandparent seeking visitation must prove to the court that the grandchild's emotional and physical needs aren't being met by the parents and grandparent visitation would help meet those needs.
A court will consider the following factors to determine if grandparent visitation is appropriate, including:
Oregon courts are very restrictive when it comes to awarding grandparent visitation privileges. In one Oregon case, the grandparents' visitation request was denied even though they'd been foster parents to the grandchild for over one year. The court determined that visitation wasn't appropriate because the child wouldn't be harmed if no visitation took place and because of the potential interference with the parent-child relationship. Although the ruling seemed harsh, Oregon law promotes a parent's rights over a grandparent's whenever possible.
Additionally, the Oregon statute governing grandparent visitation and custody lays out five factors to determine if an award of custody to a grandparent is appropriate, including, but not limited to:
The weight given to the five statutory elements will vary in each case, and other factors can be considered. A judge won't require all the factors to be met, but the evidence must at least show that a parent isn't acting in the child's best interests, and that the child's needs could be better met by a grandparent.
In one Oregon case, the court denied a grandmother's request for custody, even though she had previously acted as her grandchildren's primary caretaker for four years. At the time the grandmother took over the parental role, the children's father was working as a male prostitute and was verbally and emotionally abusing the children. Ultimately, the court found that though the father was unwilling and unable to care for the children for several years, he had been a stable and loving parent to the children for 10 months and should maintain custody of his kids.
Another Oregon case yielded a similar result by denying a grandmother's request for custody. The court struck down the grandmother's petition for custody because she'd never been the child's primary caretaker. Although the grandmother had a strong bond with her grandchild, it wasn't enough to overcome the parents' custody rights. A grandparent's custody and visitation rights always comes second to a parent's.
A grandparent seeking visitation must file a motion within 30 days of when a petition to adopt the grandchild is filed by a stepparent. A court will award grandparent visitation privileges if clear and convincing evidence shows that:
However, in cases where a child is adopted and both parents' rights are terminated, a biological grandparent has no standing to request visitation with the grandchild. In one case, a child's mother committed suicide and the child's father voluntary placed the child up for adoption. A few months later, the biological grandmother of the child sought visitation with her grandchild. Her request was denied because adoption (not by a stepparent) automatically terminates both parents' and grandparents' visitation rights.
Grandparents are an integral part of many children's lives. When parents divorce or separate, a grandparent may rush in to preserve visitation rights with a grandchild. The grandchild's best interests are tantamount in any visitation or custody proceeding. If you have additional questions about pursuing grandparent visitation or custody rights in Oregon, contact a local family law attorney for advice.