Originally Posted by AK lawyer
Except in states where the courts have adopted the "psycholgical parent" theory. I don't know if Oregon is one of those.
1. Harrington v. Daum, 172 Or App 188 (2001). Visitation awarded to deceased mother's boyfriend over objection of birth father, reversed.
2. Wilson and Wilson, 184 Or App 212 (2002). Custody of stepchild awarded to stepfather, along with parties' joint child, reversed.
3. 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. 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. ORS 109.119,
"(1) Any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship * * * with a child may petition or file a motion for intervention with the court having jurisdiction over the custody * * * of that child, or if no such proceedings are pending, may petition the court * * * for an order providing for relief under subsection (3) of this section.
"(2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.
"* * * * *
"(3)(a) If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody * * * to the person having the child-parent relationship, if to do so is in the best interest of the child. * * *
"(4)(a) * * *
"(b) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:
"(A) The legal parent is unwilling or unable to care adequately for the child;
"(B) The petitioner or intervenor is or recently has been the child's primary caretaker;
"(C) Circumstances detrimental to the child exist if relief is denied;
"(D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or
"(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.
"* * * * *
"(8) As used in this section:
"* * * * *
"(b) 'Circumstances detrimental to the child' includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child."
And finally LAMONT -O'DONNELL,/SUPREME COURT OF THE STATE OF OREGON/ http://www.publications.ojd.state.or.us/S50551.htm
"Second, as previously discussed, the legislature specifically identified five factors that may be considered in determining whether the presumption has been rebutted. ORS 109.119(4)(b). By stating that those factors are nonexclusive and by including, as relevant factors, whether the nonparent recently has been the child's primary caretaker and whether the legal parent has consented to the relationship between the child and the nonparent, the legislature demonstrated that the parental presumption can be rebutted without a showing
that the parent will harm the child or is unable to care for the child. " Thus a fit, able and willing parent may be stripped from custodial rights in the state of Oregon.