What are Grandparents’ Rights

Grandparents Running Along Beach With Grandchildren

If you are concerned about the well-being of a grandchild, there are options you may be able to pursue as a grandparent. While Oregon does not have a law that is specific to grandparents rights, there are laws that allow third parties (including grandparents, foster parents, stepparents, or other relatives) to ask the court for visitation or custody if certain circumstances exist. Lawyers refer to this set of laws as “third party visitation and custody” rather than “grandparents’ rights” since they are available to more than just grandparents.

Whether considering asking for visitation or custody, it is important to understand that Oregeon law presumes that parents will act in their child’s best interests.

Sometimes, when a child’s emotional and physical needs are not being met by the parents, grandparent visitation would help to meet those needs.A grandparent may obtain court-ordered visitation rights if he or she can prove to a court that the parents are not acting in the child’s best interests and that that the grandparent has an ongoing personal relationship with the child and that visitation is in the child’s best interests. The standard of proof for visitation with the child of some other person is clear and convincing. This is a high burden of proof.

If you have been the child’s primary caretaker and the parent is unable or unwilling to care adequately for the child, you may be able to obtain custody of your grandchild. A grandparent may obtain custody of a child if she or he can prove to a court that the parents are not acting in the child’s best interests and that that the grandparent has a parent and child relationship with the child and that awarding the grandparent is in the child’s best interests. The standard of proof for custody with a child of some other person is preponderance of the evidence. This is a slightly lower burden of proof than for visitation.

Understanding these third-party rights and options under Oregon law, including the factors a court will consider when deciding whether to award visitation rights or custody to grandparents, is an important first step. Here are the basics of what can be a challenging, emotionally fraught, but ultimately rewarding process.

What the Court Will Consider in Third-Party Rights Cases

Oregon law provides that a grandparent “who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child” may seek custody, guardianship, or visitation rights if it is in the “best interest of the child.” The law defines a “child-parent relationship” between a grandparent and grandchild as one that has existed within the 6 months leading up to the request for relief and in which:

  • The grandparent, 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

  • The 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.

“Ongoing personal relationship” means a “relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.”

As to visitation rights, the court may consider certain factors for third-party rights of visitation, including whether:

  • The grandparent is or recently has been the child’s primary caretaker;
  • The child will be negatively affected (physically, emotionally, or psychologically) if grandparent visitation is denied;
  • The child’s parent has at one time fostered, encouraged, or consented to the child’s relationship with the parent;
  • Allowing grandparent visitation won’t substantially interfere with the parent-child relationship; or
  • The child’s legal parent has unreasonably denied or limited contact between the child and grandparent.

Similarly, when a grandparent seeks custody or guardianship of a grandchild, Oregon law sets forth five factors the court may consider, including whether:

  • The legal parent is unwilling or unable to care adequately for the child;
  • The grandparent is or recently has been the child’s primary caretaker;
  • The child will be negatively affected (physically, emotionally, or psychologically) if the relief sought is denied;
  • The child’s parent has at one time, fostered, encouraged or consented to the child’s relationship with the grandparent, or
  • The child’s legal parent has unreasonably denied or limited contact between the child and grandparent.

Importantly, the law presumes that parents will act in their child’s best interests. Thus, it can be difficult to obtain grandparent visitation or custody rights if the child’s parent is objecting to the relief being sought. However, if a grandparent can show that the parent is not acting in the child’s best interests and that the child’s needs could be better met by a grandparent, visitation or custody may be awarded.

Grandparents Rights for Seeking Visitation or Custody of a Grandchild

If there is a pending custody case, a grandparent can “intervene” to request time or contact with the children. The process will be fairly simple and brief if the parents agree to your proposal. If one of the parents objects to your request, however, the process becomes more complicated and the court will consider the factors discussed above.

A grandparent wishing to seek visitation or custody rights may do so even if the parents are not already involved in a court custody or divorce proceeding. In that case you will need to submit a formal petition to the circuit court. To determine if there is an active case, contact the circuit court clerk in the county or counties where the parents live.

If a grandparent seeks relief from the court, the judge may order an investigation or appoint an individual or panel to assist the court in creating parenting plans or resolving disputes regarding parenting time.

How We Can Help

If you need assistance seeking visitation or custody of a grandchild or other third-party rights (including stepparents), we welcome you to contact Litowich Law. Based in Salem, we serve clients throughout Oregon and are dedicated to helping to protect your grandparents rights now and for the future.

Sarah M. Litowich's Profile Image
Salem family law attorney Sarah M. Litowich is an Oregonian through and through, with roots in rural eastern Oregon and the Willamette Valley. She is grateful for these deep Oregon roots because she learned the value of hard work and building and mai… Read More

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