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Grandparents and Psychological Parent Rights in Oregon after Troxel
INTRODUCTION

In the seminal case of Troxel v. Granville, 530 US 57, 120 S Ct. 2054,147 L.Ed 29 (2000), the United States Supreme Court held that awarding visitation to a non-parent, over the objections of a parent is subject to constitutional limitations. The Court invalidated, as applied, a Washington statute authorizing "any person" to petition for visitation rights "at any time" and providing that the court may order such visitation if it serves the "best interest of the child" on the ground that the statute violates a natural parent's right to substantive due process. The court specifically recognized as a fundamental liberty interest, the "interest of parents in the care, custody and control of their children." The Troxel case has affected laws in virtually all of the states, and has significantly reduced previously recognized rights of grandparents, step-parents and psychological parents in favor of birth parents.

In Oregon, through February 1, 2003, the Court of Appeals has applied Troxel in 11 cases. In addition, the 2001 legislature responded to Troxel by radically restructuring Oregon's psychological parent law (ORS 109.119) and in so doing, eliminated ORS 109.121-123, which gave specific rights to grandparents. Before discussing the implications of Troxel on Oregon's laws, it is important to understand Oregon's law before Troxel.

GRANDPARENT AND THIRD PARTY RIGHTS IN OREGON BEFORE TROXEL

Before Troxel, Oregon's jurisprudence evolved from a strict preference in favor of natural parents to a fairly straight-forward application of the best interests test. In Hruby and Hruby, 304 Or 500 (1987), the Oregon Supreme Court held that the best interest standard is not applicable in custody disputes between natural parents and other persons, and that in custody disputes, a natural parent would not be deprived of custody absent "some compelling threat to their present or future well-being." That standard remained in place until 1999 when in Sleeper and Sleeper, 328 Or 504 (1999), Hruby was effectively swept aside and the court ordered that the best interest standard be applied to psychological parent cases. In Sleeper, the stepfather, a primary caretaker, obtained custody over biological mother. (See also Moore and Moore, 328 Or 513 (1999)). Significantly, the Court limited Sleeper holding, applying the best interests test under the statute, by making it limited by an undefined "supervening right" of a natural parent. Therefore, before Troxel, once a third party had met the test for being psychological parent (de facto custodian), the best interest standard was applied and the psychological parent competed on an equal footing with the natural parent, subject to the natural parent's "supervening right." This "supervening right" was defined and applied in the post Troxel cases.

TROXEL APPLIED - THE NEW STANDARD

All 11 cases decided post-Troxel have been in favor of the natural parent. The clearest expression of the court is found in the recent en banc decision in State v. Wooden, 184 Or App 537, 552 (2002), reversing the trial court's award of custody to grandparents in favor of birth father. The court held that the "best interest" standard no longer applies to custody cases between a legal parent and non-parent's (the same holding as Hruby) Although 3 judges dissented on whether or not the transfer of custody to birth father would cause psychological harm to the children, the court was unanimous in its statement of the post-Troxel standard:

"We understand the law to create a presumption in favor of a natural parent's custody, which may be rebutted by a showing that the natural parent will not provide adequate love and care for the child, or that moving the child to the natural parent's custody will cause undue physical or psychological harm." 184 Or App at 552.

DIGEST OF POST-TROXEL CASES IN OREGON

  • Harrington v. Daum, 172 Or App 188 (2001). Visitation awarded to deceased mother's boyfriend over objection of birth father, reversed. After Troxel v. Granville, application of ORS 109.119 requires that "significant weight" be given to a fit custodial parent's decision. The parent's constitutional right is a supervening right that affects the determination of whether visitation is appropriate and prevents the application of solely the best interest of the child standard.
  • Ring v. Jensen, 172 Or App 624 (2001). Award of grandparent visitation, reversed. Grandmother's difficulty in obtaining the amount of visitation desired does not demonstrate the pattern of denials of reasonable opportunity for contact with the child as required by ORS 109.121.
  • Newton v. Thomas, 177 Or App 670 (2001). Interpreting a prior version of ORS 109.119, the court reversed an award of custody to the grandparents in favor of the mother. Under ORS 109.119, a court may not grant custody to a person instead of a biological parent based solely on the court's determination of what is in the child's best interest. The court must give significant weight to the supervening fundamental right of biological parents to the care, custody and control of their children. In a footnote, the court declined to consider the impact of the amendments to ORS 109.119 enacted by the 2001 Legislature.
  • Williamson v. Hunt, 183 Or App 339 (2002). Award of grandparent visitation reversed. The retroactive provisions of amended ORS 109.119 apply only to cases filed under the 1999 version of that statute and former ORS 109.121. Parental decisions regarding grandparent visitation are entitled to "special weight." Without evidence to overcome the presumption that a parent's decision to limit or ban grandparent visitation is not in the best interest of the child, the trial court errs in ordering such visitation.
  • Wilson and Wilson, 184 Or App 212 (2002). Custody of stepchild awarded to stepfather, along with parties' joint child, reversed. Under Troxel, custody of the mother's natural child must be awarded to fit birth mother and because of the sibling relationship, custody of the parties' joint child must also be awarded to mother.
  • O'Donnell-LaMont and LaMont, 184 Or App 249 (2002)(Reconsideration by en banc court pending). Custody of 2 children to maternal grandparents, reversed in favor of birth father (mother deceased). To overcome the presumption in favor of a biological parent under ORS 109.119(2)(a) (1997), the court must find by a preponderance of the evidence either that the parent cannot or will not provide adequate love and care or that the children will face an undue risk of physical or psychological harm in the parent's custody.
  • Moran v. Weldon, 184 Or App 269 (2002). Troxel applied to an adoption case. Adoption reversed where father's consent was waived exclusively based upon the incarceration provisions of ORS 109.322. Troxel requires that birth father's consent may not be waived without "proof of some additional statutory ground for terminating parental rights"
  • State v. Wooden, 184 Or App 537, 552 (2002), Oregon Court of Appeals, October 30, 2002. Custody of child to maternal grandparents, reversed in favor of father (mother murdered). A legal parent cannot avail himself of the "supervening right to a privileged position" in the decision to grant custody to grandparents merely because he is the child's biological father. Father may be entitled to assert parental rights if he grasps the opportunity and accepts some measure of responsibility for the child's future. To overcome presumption in favor of father, caregiver grandparents must establish by a preponderance of the evidence that father cannot or will not provide adequate love and care for the child or that moving child to father's custody would cause undue physical or psychological harm.
  • Strome and Strome, 185 Or App 525 (2003) Custody of 3 children to paternal grandmother reversed in favor of father The Court of Appeals ruled that where the biological father had physical custody for 10 months before trial, and had not been shown to be unfit during that time, Grandmother failed to prove by a preponderance of the evidence that father cannot or will not provide adequate love and care for the children or that placement in his custody will cause an undue risk of physical or psychological harm, in spite of father's past unfitness.
  • Austin and Austin,185 Or App 720 (2003). In the first case applying revised ORS 109.119 and, in the first case since Troxel, the Court of Appeals awarded custody to a third party (step-parent) over the objection of a birth parent (mother). The constitutionality of the revised statute was not raised before the court. The court found specific evidence to show that mother was unable to adequately care for her son. The case is extremely fact specific. Father had been awarded custody of three (3) children, two (2) of whom were joint children. The third child, at issue in the case, was mother's son from a previous relationship. Therefore, sibling attachment as well as birth parent fitness were crucial to the court's decision.
  • Burke v. Hall, 186 Or App 113 (2003) Revised ORS 109.119 and Troxel applied in the guardianship context. In reversing a guardianship order the court held that: "guardianship actions involving a child who is not subject to court's juvenile dependency jurisdiction and whose legal parent objects to the appointment of guardian are in addition to the requirements of ORS 125.305 subject to the requirements of ORS 109.119." The constitutionality of amended ORS 109.119 was not challenged and therefore not addressed by this court.

THE TROXEL FIX - AMENDED ORS 109.119 - IT IS CONSTITUTIONAL?

The constitutionality of revised ORS 109.119 (HB 2427, Chapter 873, Oregon Laws 2001) has not been interpreted by the Court of Appeals to date. Although the new law is retroactive, it is only retroactive to petitions filed under the 1999 version of ORS 109.119 (or ORS 109.121). The 1999 version of ORS 109.119 was not effective until October 23, 1999 and therefore, the new statute will only be retroactive to petitions filed after that date. In Austin (case # 10 above) the new statute was applied, but the constitutional issue was not raised or addressed.

The new statute abolishes grandparent visitation as a specific classification and instead treats all third parties as either psychological parents (who may seek custody or visitation) for persons with an "ongoing personal relationship" who can seek only visitation. Amended ORS 109.119 incorporates the Troxel parental preference by establishing a presumption that a legal parent acts in the best interest of the child. However, the presumption may be rebutted by a number of factors. Two of the factors (physical and emotional or psychological harm to the child and unfitness of the birth parent) are derived from Troxel and consistent with the post-Troxel cases interpreted by the Court of Appeals. However, other rebutting factors may not pass constitutional muster. Other rebutting factors include: that the third party was recently the child's primary caretaker; that the legal parent had fostered or encouraged the prior relationship; that granting relief would not interfere with the custody relationship; or that the legal parent unreasonably denied or limited contact between the child and the third party. When seeking custody, a third party seeking custody need only rebut the natural parent presumption by a preponderance of the evidence. That quantum of proof standard may also be constitutionally suspect. However, when seeking visitation on the basis of an ongoing personal relationship, the presumption must be rebutted by clear and convincing evidence.

DEMONSTRATING HARM TO THE CHILD - WHAT IS ENOUGH?

Although amended ORS 109.119 provides that the natural parent presumption may be rebutted if "circumstances detrimental to the child exists if relief is denied" summary evidence that a child would be harmed through a transition to the custodial parent will not be adequate. In State v. Wooden, the testimony of noted child psychologist Tom Moran, that moving the child now "would be devastating and traumatic" was not sufficient. The court was critical as to the narrow scope of Dr. Moran's analysis - he did not perform a traditional custody evaluation "instead, he offered an opinion - - based solely on his limited contact with the child - - on the narrow issue of the probable effect of awarding custody right now." Moran was also rebutted by Dr. Jean Furchner, who recommended that custody be awarded to father after a transition period of between 6 to 12 months. In the more recent Strome case, the court majority discounted the testimony of Dr. Bolstad (who, in contrast to Dr. Moran in Wooden, did a comprehensive evaluation including mental health testing) that found the children to be "significantly at risk." The majority preferred the testimony of evaluator Mazza who evaluated Father and the children only, albeit in a more intensive fashion. Strome reversed the trial court and awarded custody to father drawing a dissent of 4 members of the Court.

Query: Is the court expecting empirical or objective evidence that a transfer to a birth parent's full custody from a psychological parent would cause psychological harm to a child? How does one establish such evidence? Perhaps, some children may have to actually suffer psychological harm to form an empirical base. If a child is psychologically harmed as a result of the transition, does this constitute grounds for a modification? How long does one have to wait to assess whether psychological harm is being done - 6 months? One year?

DO CHILDREN HAVE CONSTITUTIONAL RIGHTS?

In the ongoing battles between birth parents and third parties, it seems that the rights of children have been largely ignored, except to the extend that the best interests standard is still considered on a secondary level. In Troxel, Justice Stevens in dissent found that children may have a constitutional liberty interest in preserving family or family-like bonds. In a challenge that does not appear to have been taken root in post-Troxel jurisprudence, Justice Stevens warned:

"It seems clear to me that the due process clause of the 14th Amendment leaves room for states to consider the impact on a child of possibly arbitrary parental decisions that neither serve nor are motivated by the best interests of the child." 120 S. Ct. at 2074.

Contrast Justice Stevens' opinion with the recent case of Herbst v. Swan (Case No. B152450, October 3, 2002, Court of Appeals for the State of California, Second Appellate District), applying Troxel and reversing a decision awarding visitation to an adult sister with her half-brother (after their common father died). The statute was determined to be an unconstitutional infringement upon the mother's right to determine with whom the child could associate.

TROXEL APPLIED IN OTHER STATES

Although there have been some exceptions, the strong trend in other states is, as in Oregon, toward upholding natural parent's rights against third party interests and in many cases, voiding state laws. See e.g.:

Zasueta v. Zasueta (No. F039600, October 17, 2002, Court of Appeals for the State of California, Fifth Appellate District). California state statute permitting grandparent visitation (when one parent is deceased) if it is in the child's best interest is unconstitutional as applied.

Neal v. Lee, 14 P.3d 547 (Okla. 2000). Trial court had no authority to grant grandparent visitation over the objections of parents absent of showing of harm.

Esch v. Esch, (Case No. 18489, Ohio Court of Appeals, February 23, 2001) Ohio's statute permitting grandparent visitation and custody based upon the best interests of the child unconstitutional, absent a showing of parental unfitness.

Brice v. Brice, 754 A.2d 1132 (Md. App. 2000). Maryland's grandparent visitation statute violates mother's due process right as applied, where grandparents did not allege that mother was unfit and mother did not oppose or deny visitation.

J.S. and E.S. v. D.W. and J.W., (No. 2990431, Court of Civil Appeals of Alabama (May 4, 2001). Alabama's grandparent visitation statute held unconstitutional where the statute did not require a showing that the child would be harmed if grandparent visitation was denied and applied no presumption in favor of a fit parent's decision.

TIPS AND WARNINGS

ORS 109.121-123 has been abolished. Grandparents are treated as any other third parties seeking visitation or custody. Therefore grandparent- child relationship which has languished for more than a year may result in the loss of any right to make a claim.

Amended ORS 109.119 requires findings of fact supporting the rebuttal of the parental parent presumption. Be prepared to offer written fact findings to the trial court.

Custody and visitation evaluations are provided for at the parties' expense. This evidence is critical to the issue of the presumption as well as best interests of the child.

The application of third party rights in the juvenile court has been substantially restructured. See ORS 419B.116; 419B.192; 419B.875.

For an excellent review of the implications of Troxel on children and families, see, Family Court Review, An Interdisciplinary Journal, Volume 41, Number 1, January 2003, Special Issue: Troxel v. Granville and Its Implications for Families and Practice: A Multidisciplinary Symposium.


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