How To Get Custody Of A Grandchild

We often meet with grandparents that are looking for a way to establish custody of their grandchildren. There are many questions that arise in these circumstances, the most common are:

  • Do grandparents have a right to custody or visitation with their grandchildren?
  • Does a grandparent need the parent’s permission to see a grandchild?
  • Can a grandparent file for custody?
  • What is the difference between visitation and custody?
  • How do I file for custody of my grandchild?

Do Grandparents Have A Right To Custody Of Their Grandchildren?

The short answer is no, grandparents do not have automatic right to custody or visitation with their grandchildren.  In fact, under Oregon law, grandparents are not generally viewed any differently than a third party.  That means in the eyes of the court, grandparents don’t automatically have any more rights to custody or visitation than a non-relative.

However, grandparents do have the ability to prove to the court that they should have custody or visitation under the right circumstances.  Grandparents do not need to be the biological relatives of a child to do so.

Does A Grandparent Need Permission To See Their Grandchild?

Yes, a grandparent generally needs permission to see their grandchild, unless a Court orders otherwise.  Oregon law states that the, “legal parent acts in the best interests of the child.”  The Court considers this a “presumption” (i.e. the default standard).  It is up to the grandparents or third party to overcome this presumption.

Can A Grandparent File For Custody Or Visitation?

Yes, a grandparent or third party can file for custody or visitation.  For custody, the grandparent or third party must prove that they have established a “child-parent relationship” with their grandchild.  For visitation, they must prove that an “ongoing personal relationship” exists.

Establishing a “child-parent relationship” generally requires that for six to twelve months prior to filing, the child resided with the grandparents, who provided necessities such as food, shelter, clothing, on a daily basis.  An ongoing personal relationship requires interaction, companionship and mutuality.  The exact text of the law under ORS 109.119 states:

“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. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.”

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

What Is The Difference Between Visitation And Custody Under ORS 109.119?

As outlined above, Oregon law has two separate tests regarding grandparent and third party rights.  The first is whether a grandparent or third party would qualify for custody, and the second is whether they would qualify for visitation.  A request for both can be filed with the Court.

Custody means who the Court determines is the best person to make legal decisions for a child (choice of medical providers, schools, etc.).  This is the “child parent relationship” test.

Visitation means parenting time.  Parenting time is the weekly or monthly schedule that the Court can order, specifying who sees a child at which point during the week or month.   This is the “ongoing personal relationship” test.

The elements to prove a request for third party custody and a “child parent relationship” are:

(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.

The elements to prove a request for third party visitation and an “ongoing personal relationship” are:

(A) The petitioner or intervenor is or recently has been the child’s primary caretaker;

(B) Circumstances detrimental to the child exist if relief is denied;

(C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;

(D) Granting relief would not substantially interfere with the custodial relationship; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

How Do I File For Custody Of A Grandchild?

The path to filing for custody of your grandchild starts by making sure you know what you are asking for:  Custody, visitation, or both.

The ORS 109.119 Petition:

If you believe you qualify under the law, you need to draft a petition for third party custody and/or visitation pursuant to ORS 109.119.  You need to make sure you outline the detailed specifics of your request in the petition, so that the court can grant you the relief that you ask for if you have to go to a hearing.

Request For Status Quo?

You will also need to make a decision upfront about whether you need to request a status quo order.  This potentially gives you the ability to freeze the parenting time that has been occurring for the previous 90 days, until there is an order from the court regarding parenting time.  The idea is that whatever normal routine your grandchild has become accustomed to, should remain in place.

Should I Hire An Attorney?

The answer for third party cases is almost always yes, at the very least seek a consultation to find out if you have a strong case.  Filing for third party custody or parenting time can be very complicated and confusing.  We have helped many people through this process and our goal is to make sure everything is done right the first time.  We strive to give our clients peace of mind so they spend less time worrying, and more time taking care of their grandchild.

What Does A Consultation Cost?

We offer two consultation options:  We have a limited number of 30 minute case evaluations each week for a discounted rate of $50.00.  Alternatively, for those who are interested in driving deeper into their problems and solutions we offer a full 60 minute case evaluation at a discounted rate of $100.00.

The Consultation Step-By-Step

  1. We will e-mail you a link to fill out a questionnaire in advance of the consultation, so that we can be better prepared to help you.
  2. We ask that you fill out a brief confidentiality form when you arrive in our waiting area on the day of the consultation.  
  3. We will offer coffee, water, or tea. We will meet in a private office, with room to bring someone with you if you wish.
  4. We will take the first half of the consultation to talk about why you scheduled the consultation.  This is your opportunity to help us understand why you are here, and what you need help with.  It’s a good opportunity to help us see the big picture.
  5. We will use the second half of the consultation to understand what solutions you really need, and start forming a plan on how to accomplish those solutions.
  6. At the end of the consultation, we will discuss costs based on your specific needs.  Every situation is different, so it is impossible to discuss costs unless we know what we need to do first.