Third Party Rights in Child Custody: No Need to Prove the Parent is not Fit in Some Modifications

In 2000, the Supreme Court ruled that the Constitution favored parents over nonparents in child custody and visitation disputes, and that grandparents and other third parties had to show that parents were not acting in the child’s best interest before a court could give custody or parenting time to a nonparent. In a recent case from the Oregon Supreme Court, however, it was ruled that this rule did not apply, at minimum, to modifications of child custody orders based on previous agreements between the parents and nonparents.

The parents separated when the child was six months old, and the father moved out. Three months later, the mother left the child in the grandmother’s care. The mother developed a drinking problem and was unable to keep stable employment. She decided to move to Virginia to recover her sobriety and stabilize her situation. The father and grandmother negotiated a settlement agreement with the mother before she left, and, after the father submitted the agreement to court, the parents were divorced by an agreed judgment that gave custody to the grandmother.

Several years later, the mother, having beaten the bottle and found work, moved to modify the divorce judgment to give her custody and allow her to take the child to Virginia. The father sided with the grandmother in asking that custody not be changed.  The case was eventually appealed to the Oregon Supreme Court, which was asked to answer two questions: (1) Was the grandmother required to prove that the mother was unfit; and (2) Was the mother required to prove that circumstances had changed, as usually applies in disputes between parents, before the court could decide whether a change of custody would be in the child’s best interest?

The court ruled that the constitutional rule regarding parents’ rights, and an Oregon law written to implement that rule, did not apply in this case. The purpose of the constitutional rule, the court said, was to prevent excessive interference in parenting. Where, however, the parents have already agreed to give rights to a grandparent, there is no improper interference. As a result, the initial question of the mother’s fitness did not serve as a gatekeeper question that might exclude the grandmother from custody.

The second question, whether the change-in-circiumstances rule applied to modification disputes between a parent and a nonparent, on the other hand, was not answered by the court. Instead, the court decided that the answer to that question didn’t matter to the final decision because the trial court had decided that as between the mother and grandmother, keeping the child with the grandmother was in the child’s best interest, and that decision was a reasonable one based on the evidence presented. Even if the mother didn’t have to prove a change in circumstances, she wouldn’t win custody.

I am uncertain whether the courts may expand this decision to exclude an initial fitness question when deciding motions to modify judgments that were not previously decided by agreement. If not, it will discourage parents who may want to get custody back from agreeing to give up custody. On the other hand, expanding this decision to all modification cases may result in the kind of interference that the Supreme Court was trying to prevent when it first created the rule. It is possible, if the mother asks the Supreme Court to review the case, that it may do so in order to clarify what it meant, but it is very rare that the Supreme Court gets involved in basic family law issues.

I am also uncertain whether a parent could, as part of an initial agreement, include a requirement that the fitness question be decided if the parent asks for a change. It does not seem to be an impossible term to agree to, but this would raise questions of instability of children’s situations that the courts might not want to allow.

On the whole, if you are being asked to agree to a custody plan for your child that gives custody to someone other than another parent, you may want to ask a lawyer for advice. Be prepared to have a frank discussion about your situation with the lawyer so that the lawyer can assess whether a judge might say you are unfit, as that will be a significant factor in the advice the lawyer might give. It also may be worth discussing the effect of an agreement on whether you can ask for a change in the plan in the future and whether you may want to try to protect your rights in the agreement.


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