do grandparents have rights

Grandparents’ Rights and Third-Party Custody

Goldberg Jones Child Custody 2 Comments

Legally, a parent’s rights take precedence, but in Oregon, it is possible for a third party, including grandparents, to file for child custody. As you might imagine, this isn’t a quick, simple, or easy process. In order to petition for custody, grandparents must have an established “child-parent relationship.”

Often this results from a parent battling mental health or substance abuse problems and leaving a child in the care of a grandparent for an extended amount of time.

What is a Child-Parent Relationship?

ORS 109.119 provides a specific definition of this term. Under the statute:

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.

In short, if a grandparent serves as the primary guardian and caregiver, filling the traditional parental role, there may be grounds for the court to award custody. Or at least, if they can show this, they have a sturdier case. Otherwise, the court isn’t likely to consider a grandparent’s child custody claim.

Oregon doesn’t limit these third parties to grandparents or even a child’s blood relations. Anyone with an established child-parent relationship can file for custody. The rules governing this are, understandably, a bit different.

Under the statute:

“[A] relationship between a child and a person who is the non-related foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.”

Third-Party Temporary Power of Attorney

Another common concern involves extended stays while the parents are away. This situation frequently arises when single parents deploy in the military. It also pops up when parents travel for extended periods of time and leave kids with grandparents.

If you watch a grandchild for an extended period of time, the court can bestow temporary power of attorney. In cases like these, it’s advisable to take this step.

In Oregon, parents can give others the right to take care of their children for up to six months. This includes grandparents. Granting temporary power of attorney doesn’t forfeit the parent’s rights, but it allows a short-term caretaker to make the necessary decisions to preserve the child’s well-being.

Granting temporary power of attorney doesn’t necessarily require court involvement. However, you must understand the implications of giving decision-making power to another person. The choices that individual makes carry consequences, financial and otherwise. 

Once a parent grants power of attorney, they can revoke it at any time. The parent has the right to take the child back at any time. If the document doesn’t specify a time frame, power of attorney expires after six months.

Oregon also has a third-party custody statute. This provides for an involved individual to pursue court-ordered visitation or custody. While this frequently applies to grandparents, the law doesn’t limit it to them. This statute applies to other family members or third parties who have a legitimate claim.

Related Reading: Child Custody: The Best Interests of the Child

Can a 3rd Party File For Custody?

In most situations, the court presumes living with parents is in the child’s best interest, but it’s possible to show otherwise. As in most cases involving minors, visitation or custody cases put the best interests of the children above other concerns.

Being awarded custody, especially against the objections of a present legal parent, is no easy feat. The grandparents, or another third party, need to prove that they truly represent the child’s best interests. They must rebut the presumption that it’s always better for a child to live with his or her parents.

You must show:

  • That the legal parent is either unable or unwilling to provide adequate care for the minor child in question.
  • The grandparent, or another third party if that’s the case, is or recently was the primary caregiver for the child.
  • If the request is denied, you must prove that it is detrimental to the well-being of the child.
  • The legal parent has previously encouraged or even consented to the relationship between the child and the grandparent.
  • That the legal parent restricted or outright denied contact between the grandparent and grandchild in an unreasonable fashion.

How much the court weighs a particular component varies from case to case. Other elements and evidence are also up for consideration. At a basic level, taken as a whole, your case needs to demonstrate that the legal parent isn’t acting in the child’s best interest and that a change in custody represents a substantial positive shift.

But just because you satisfy these points doesn’t mean the court will automatically rule in a grandparent’s favor. Judges and the law give a great deal of credence to the parent-child relationship. There are many cases where, for instance, grandparents were the primary caregiver for six months or longer, but the court still denied a child custody claim.

What About Visitation?

Even if grandparents don’t pursue child custody, visitation is another avenue to remain in the lives of grandchildren. Like with custody, if there are issues with the parents or guardians, you have to petition for visitation.

The grounds for grandparents being awarded visitation in Oregon are similar to those for custody.

Courts consider:

  • whether the grandparent was the primary caregiver
  • if denial negatively impacts the child
  • if they were unreasonably denied contact,
  • and if the parent has previously encouraged a relationship between grandparent and grandchild.
  • Additionally, the court also weighs whether or not visitation will interfere with the custodial relationship.

Third-Party Rights When One Parent Has Primary Custody

Generally speaking, both legal parents have equal rights over the child. But if the court awards one parent greater rights than the other, 3rd party rights may come into play. 

An example:

Let’s say a grandfather watches his grandson while his son is at work. If no court order exists specifically outlining when the child is to spend time with the respective parents, then either parent can take the child from the non-parent on demand. In this case, the child’s mother could show up and take the child.

However, if a current court order allocates specific parenting time, the other parent can’t take the child on demand. In the above situation, if the grandfather watches the grandson during the period the court order grants the son parenting time, the mother can’t take the child at will.

If there is a court order laying out who has the child, it’s often useful to keep a copy hand. This way, if the child is in a grandparent’s care and one parent tries to pull anything, you can reference the document.

Third-party custody cases, whether they involve grandparents or not, are complicated. As with most situations involving children, their best interest takes precedence over parental preference and convenience. If you definitively show that you are the best choice as a guardian, you have a chance.

Related Reading: Can I Sign Away Parental Rights?
Related Reading: Best Interest Of The Child
Related Reading: Parental Evaluations In Oregon

Comments 2

  1. It is court order im to be with my granddaughter 24/7 i cannt work but 2 days now is there anyfinacial aid i can receive during tbis time

    1. Post
      Author

      Hi Kathy,

      Thanks for reaching out. That’s a tough situation. I passed your contact information on to our managing attorney, Colin Amos. He will reach out to you soon to give you a better idea of your options.

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