§9.3 Ors 109.119

JurisdictionOregon
§ 9.3 ORS 109.119

ORS 109.119 in its current form is a complicated statute with multipart definitions, rebuttable presumptions, and different, interrelated burdens of proof based on those definitions and presumptions. Therefore, it can be helpful to parse the specific language of each section of the statute to understand how the statute works and how it applies to a particular situation. See § 9.3-1 to § 9.3-5(h).

§ 9.3-1 Changes to the Previous Statute

The 2001 Legislature made two critical changes to the substance of the previous version of ORS 109.119: (1) it established a rebuttable "presumption that the legal parent acts in the best interest of the child," ORS 109.119(2)(a); and (2) it created a nonexclusive list of factors that are relevant to the determination of whether the presumption that a legal parent has acted in the child's best interest has been rebutted, ORS 109.119(4). Or Laws 2001, ch 873, § 1.

§ 9.3-2 Statutory Structure

In considering ORS 109.119, it is helpful to read through the major parts of the statute. In general, the statute is divided as follows:

• Subsection (1)—Confirms any person can file a motion or petition under this statute if they have the requisite relationship ("child-parent" or "ongoing personal," as defined in subsection (10)) and use the appropriate process (petition or motion to intervene).
• Subsection (2)—Sets forth the presumption that the legal parent acts in the child's best interest.
• Subsection (3)(a)—For a child-parent relationship, sets forth the elements and burden of proof (preponderance of the evidence) needed to rebut the presumption in subsection (2) and the type of relief that can be ordered (custody, guardianship, visitation, or other rights), if to do so is in the best interest of the child.
• Subsection (3)(b)—For an ongoing personal relationship, sets forth the elements and burden of proof (clear and convincing evidence) needed to rebut the presumption in subsection 2 and the type of relief that can be ordered (visitation or contact rights), if to do so is in the best interest of the child.
• Subsection (4)—Provides a nonexclusive list of factors to be used in rebutting the presumption if visitation or contact rights are requested (paragraph (a)) or if custody, guardianship, or "other rights" are requested (paragraph (b)).
• Subsections (5) to (9)—Set forth a variety of rules that apply in actions under the statute.
• Subsection (10)—Defines important statutory terms, including "child-parent relationship" and "ongoing personal relationship."

§ 9.3-3 Definitions

Specific definitions that apply to ORS 109.119 are set forth in subsection (10).

§ 9.3-3(a) Child-Parent Relationship

A child-parent relationship is defined in ORS 109.119(10)(a). The definition is detailed and specific enough that it is helpful to separate out its component parts to determine if the criteria are met in any individual situation:

• a relationship that exists or did exist,
• in whole or in part,
• within the six months preceding the filing of an action under ORS 109.119, 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.

§ 9.3-3(a)(1) Timing of the Relationship

All or part of the child-parent relationship must exist within the six months preceding the filing of the action. ORS 109.119(10)(a); Jensen v. Bevard, 215 Or App 215, 220, 168 P3d 1209, adh'd to as clarified, 217 Or App 309, 175 P3d 518 (2007). The reference in the statute to "in part" refers to when the relationship exists, not to whether the child lives "in part" with the nonparent. Jensen, 215 Or App at 220. To meet the definition of a child-parent relationship, the nonparent must have resided in the same household as the child during that period "on a day-to-day basis." Jensen, 215 Or App at 220.

There was no case law at the time this chapter was published that explicitly and directly addresses the issue of how much time a relationship must exist between the nonparent and the child during the six months preceding the filing of the action. The plain words of the statute provide that the relationship must exist "within the six months preceding the filing of an action under this section" (ORS 109.119(10)(a) (emphasis added)) and not that the relationship must exist "for" six months preceding the filing of the action, so it would be reasonable to argue that a relationship of less than six months duration still may qualify as a child-parent relationship, as long as part of that relationship existed within the last six months before the action was filed.

§ 9.3-3(a)(2) Foster Parents

A relationship between a child and a person who is the child's nonrelated foster parent is not a child-parent relationship unless the relationship continues for more than 12 months. ORS 109.119(10)(a). The statute does not address the question of whether there are any different time requirements for a related foster parent. Presumably, therefore, the requirements for a related foster parent would be the same as for applicants who are not foster parents.

§ 9.3-3(a)(3) Same Household on a Day-to-Day Basis

It is not enough to establish a child-parent relationship that the person seeking visitation under the statute is emotionally close to the child or has spent a good deal of time with the child. To establish a child-parent relationship under ORS 109.119, a person seeking rights under the statute must be part of the same household as the child on a day-to-day basis. In re Marriage of Hanson-Parmer & Parmer, 233 Or App 187, 192-94, 225 P3d 129 (2010) (mother's husband, who was not the child's biological father, did not establish a child-parent relationship when he had parenting time overnight with the child two days a week, but did not reside in the same household as the child on a day-to-day basis); Harrington v. Daum, 172 Or App 188, 192, 18 P3d 456 (2001).

The detailed definition of a child-parent relationship was intended to significantly shrink the universe of so-called psychological parents who could qualify to have a child-parent relationship for purposes of obtaining custody. Jensen v. Bevard, 215 Or App 215, 222, 168 P3d 1209, adh'd to as clarified, 217 Or App 309, 175 P3d 518 (2007). A nonparent who cares for a child in the nonparent's home on many, but not all, weekends while the parent is at work does not reside in the same household as the child on a day-to-day basis. A nonparent who stays with a child three days and three nights a week is close to but does not meet the "day-to-day" requirements of ORS 109.119(10)(a). Jensen, 215 Or App at 225. A nonparent whose time with a child "significantly" exceeds the "three-days-and-three-nights threshold," but does not live with the nonparent seven days a week, establishes that the nonparent lives with the child "day-to-day." Holt v. Atterbury, 291 Or App 813, 822, 420 P3d 676 (2018).

§ 9.3-3(b) Circumstances Detrimental to the Child

The term circumstances detrimental to the child "includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child." ORS 109.119(10)(b); In re Marriage of Nguyen, 226 Or App 183, 192, 203 P3d 265, rev den, 347 Or 42 (2009). There is no requirement that all three types of harm listed occur. ORS 109.119(10)(b). To prove that such circumstances exist, the nonparent must show that the circumstances of living with the legal parent pose a serious present risk of such harm, not just that living with a legal parent may cause such harm. Holt v. Atterbury, 291 Or App 813, 825, 420 P3d 676 (2018).

§ 9.3-3(c) Grandparent

Grandparent is defined as the legal parent of the child's legal parent. ORS 109.119(10)(c). The definition does not appear to include a relationship defined by biology only. In other words, under a strict reading of the definition, if a parent is a biological parent, but not a legal parent, that biological parent's parent would not qualify under the statute as a grandparent, even though biologically related to the child.

§ 9.3-3(d) Legal Parent

Legal parent is defined by reference to the definition of a parent as stated in ORS 419A.004 whose parental rights have not been terminated under the juvenile dependency statutes, ORS 419B.500 to 419B.524. ORS 109.119(10)(d). Under ORS 419A.004, a legal parent includes "the biological or adoptive" mother, or any person who has adopted the child and whose parentage has been established or declared under ORS 109.065 (regarding ways to establish legal parentage), as part of an Oregon administrative child support proceeding, or by a juvenile court. In cases in which the Indian Child Welfare Act applies, a man whose parentage has been established as described in ORS 419B.609 would be considered a legal parent as well. ORS 419A.004(20)(b).

§ 9.3-3(e) Ongoing Personal Relationship

The term ongoing personal relationship is defined as "a relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality." ORS 109.119(10)(e).

There is no particular time limitation in the statute for commencing an action to establish visitation based on an ongoing personal relationship. The requisite relationship has to have continued for at least one year, but the statute "does not require that such a relationship have existed immediately preceding the commencement of the action." Digby v. Meshihnek (In re Custody of C.B.), 241 Or App 10, 15, 249 P3d 988 (2011).

§ 9.3-3(f) Visitation or Contact Rights Undefined

ORS 109.119 states that a court may award "visitation" or...

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