Nonparental Custody and Visitation Rights in Action

In 2000, the Supreme Court ruled that nonparents could only be awarded custody and visitation rights to children if the parents were not acting in the best interests of the children. Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000), <http://caselaw.findlaw.com/us-supreme-court/530/57.html>. As a result, Oregon, Washington, and most other states amended their third-party parenting rights laws to conform to the Supreme Court’s mandate. A recent case from Oregon, Husk v. Adelman, 281 Or App 378 (2016), <www.publications.ojd.state.or.us/docs/A158504.pdf>, illustrates how these laws are applied in practice.

During their relationship, Ms. Husk and Ms. Adelman decided to adopt a child. After agreeing on an international adoption Ms. Adelman applied as a single parent, presumably because of complications their relationship would cause in the child’s country of origin. They acted as co-parents for the remainder of the relationship. After the relationship ended, Ms. Husk continued to have visitation with the child until Ms. Adelman began curtailing it. They reached an agreement setting forth a visitation schedule, but a few years later, Ms. Adelman began limiting Ms. Husk’s parenting time again. At that point, Ms. Husk sued for a visitation order under Oregon’s nonparent custody and visitation law.

In Oregon, a nonparent can obtain custody or visitation rights with regard to a child if three elements are shown: the person has an ongoing relationship with the child, the parents are not acting in the child’s best interests, and the custody or visitation would be in the child’s best interests. The law requires the nonparent to prove that the parents are not acting in the child’s best interests by a heightened standard of proof:  that the finding is highly probable. It also requires the judge to put his or her reasoning on this point in writing as part of the order.

There was no dispute that Ms. Husk had an ongoing relationship with the child, but whether Ms. Adelman was acting in the child’s best interests, and whether visitation would be in the child’s best interests, was at issue.

The trial judge concluded that Ms. Husk had shown that Ms. Adelman was not acting in the child’s best interests. In her opinion, the judge relied on five facts: the agreement of the parties’ experts that denial of visitation would be harmful to the child, a history of Ms. Adelman fostering and encouraging the relationship between Ms. Husk and the child, that visitation would not substantially interfere with the relationship between Ms. Adelman and the child, Ms. Adelman’s limitation of Ms. Husk’s access to the child (which the court called unreasonable), and the likelihood that Ms. Adelman would continue to withhold access unless ordered to do so. The judge also found that allowing visitation was in the child’s best interests and that Ms. Adelman’s restriction of Ms. Husk’s time with the child was for her own benefit, not the child’s. The judge ordered visitation for Ms. Husk, asking the parties to try to agree to a schedule. The schedule proved to be similar to that in the prior agreement, but Ms. Adelman then appealed.

The Court of Appeals ruled that there was enough evidence to support the trial judge’s findings and let the ruling stand. It did not discuss the evidence in further detail because it thought it would not be instructive. The Court of Appeals also made clear that the trial judge had discretion to order reasonable visitation, and saw nothing to find the ordered schedule unreasonable.

Ms. Adelman did win one minor point. The trial judge had ordered her to provide medical and educational records to Ms. Husk. This had been the practice under the earlier agreement, but the Court of Appeals ruled that the law did not give the judge the power to order sharing of information in a nonparent visitation case, and that the agreement was no longer in force. As a result, the sharing of information was stricken from the order.

If you are a parent, and your relatives or partner has assisted raising your children to the point that they develop a close relationship with the children, you may find that it would benefit the children to allow that relationship to continue. Sometimes, of course, it may not. Every case is different, but you should always very carefully consider what is best for the children. What looks reasonable at the time may be held unreasonable by a judge at a later date. A talk with the children’s doctors and teachers may be useful, as might talking to a social worker or lawyer.

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