Chapter 833 Oregon Laws 2001
AN ACT
SB 167
Relating to child custody;
amending ORS 107.425, 109.119 and 109.175.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 107.425 is amended to read:
107.425. (1) In suits or proceedings described in
subsection [(2)] (4) of this section in which there are minor children involved, the
court may cause an investigation to be made as to the character, family
relations, past conduct, earning ability and financial worth of the parties for
the purpose of protecting the children’s future interest. The court may defer
the entry of a final judgment until the court is satisfied that its judgment in
such suit or proceeding will properly protect the welfare of such children. The
investigative findings shall be offered as and subject to all rules of
evidence. Costs of the investigation may be charged against one or more of the
parties or as a cost in the proceedings but shall not be charged against funds
appropriated for indigent defense services.
[(2) The provisions
of subsection (1) of this section apply when:]
[(a) A person files a
domestic relations suit, as defined in ORS 107.510;]
[(b) A motion to
modify an existing decree in a domestic relations suit is before the court;]
[(c) A parent of a
child born out of wedlock initiates a civil proceeding to determine custody or
support under ORS 109.103;]
[(d) A person
petitions or files a motion for intervention under ORS 109.119;]
[(e) A child’s
grandparent petitions for visitation rights under ORS 109.121;]
[(f) A person or
state agency files a petition under ORS 109.125 to establish paternity and
paternity is established; or]
[(g) A habeas corpus
proceeding is before the court.]
[(3)] (2) The court, on its own motion or on
the motion of a party, may order an independent physical, psychological,
psychiatric or mental health examination of a party or the children and may
require any party and the children [to
appear and to testify as witnesses during this investigation and] to be
interviewed, evaluated and tested by an expert or panel of experts. The court may also authorize the expert or panel of experts to interview other
persons and to request other persons to make available to the expert or panel of experts records deemed by
the court or the expert or panel of
experts to be relevant to the evaluation. The court may order the parties
to authorize the disclosure of such records. In the event the parties are
unable to stipulate to the selection of [the
psychologist, psychiatrist or registered clinical social worker to conduct the
investigation, the court shall choose such expert from a list of three
submitted to the court by each party with a statement of the experts’
qualifications and fees for the investigation. The court shall direct one or]
an expert or panel of experts to conduct
the examination or evaluation, the court shall appoint a qualified expert or
panel of experts. The court shall direct one or more of the parties to pay
for the [investigation] examination or evaluation in the
absence of an agreement between the parties as to the responsibility for
payment but shall not direct that the expenses be charged against funds
appropriated for indigent defense services. If more than one party is directed
to pay, the court may determine the amount that each party will pay based on
financial ability.
(3)(a) In addition
to an investigation, examination or evaluation under subsections (1) and (2) of
this section, the court may appoint an individual or a panel or may designate a
program to assist the court in creating parenting plans or resolving disputes
regarding parenting time and to assist parents in creating and implementing
parenting plans. The services provided to the court and to parents under this
section may include:
(A) Gathering
information;
(B) Monitoring
compliance with court orders;
(C) Providing the
parents, their attorneys, if any, and the court with recommendations for new or
modified parenting time provisions; and
(D) Providing parents
with problem solving, conflict management and parenting time coordination
services or other services approved by the court.
(b) Services provided
under this section may require the provider to possess and utilize mediation
skills, but the services are not comprised exclusively of mediation services
under ORS 107.755 to 107.785. If only mediation services are provided, the
provisions of ORS 107.755 to 107.785 apply.
(c) The court may order
one or more of the parties to pay for services provided under this subsection,
if the parties are unable to agree on their respective responsibilities for
payment. The court may not order that expenses be charged against funds appropriated
for indigent defense services.
(d) The presiding judge
of each judicial district shall establish qualifications for the appointment
and training of individuals and panels and the designation of programs under
this section. In establishing qualifications, a presiding judge shall take into
consideration any guidelines recommended by the statewide family law advisory
committee.
(4) The provisions of
this section apply when:
(a) A person files a
domestic relations suit, as defined in ORS 107.510;
(b) A motion to modify
an existing decree in a domestic relations suit is before the court;
(c) A parent of a child
born out of wedlock initiates a civil proceeding to determine custody or
support under ORS 109.103;
(d) A person petitions
or files a motion for intervention under ORS 109.119;
(e) A child’s
grandparent petitions for visitation rights under ORS 109.121;
(f) A person or state
agency files a petition under ORS 109.125 to establish paternity and paternity
is established; or
(g) A habeas corpus
proceeding is before the court.
(5) Application of the
provisions of subsection (1), (2) or (3) of this section to the proceedings
under subsection (4) of this section does not prevent initiation, entry or
enforcement of an order of support.
[(4)] (6) The court, on its own motion or on the motion of a party, may appoint
counsel for the children. However, if requested to do so by one or more of the
children, the court shall appoint counsel for the child or children. A
reasonable fee for an attorney so appointed may be charged against one or more
of the parties or as a cost in the proceedings but shall not be charged against
funds appropriated for indigent defense services.
[(5)] (7) Prior to the entry of an order, the
court on its own motion or [upon] on the motion of a party may take
testimony from or confer with the child or children of the marriage and may
exclude from the conference the parents and other persons if the court finds
that such action would be likely to be in the best interests of the child or
children. However, the court shall permit an attorney for each party to attend
the conference and question the child, and the conference shall be reported.
SECTION 2.
ORS 109.119 is amended to read:
109.119. (1) Any person, including but not limited to a
related or nonrelated foster parent, stepparent or relative by blood or
marriage who has established emotional ties creating a child-parent
relationship or an ongoing personal relationship with a child, or any legal
grandparent may petition or file a motion for intervention with the court
having jurisdiction over the custody, placement, guardianship or wardship of
that child, or if no such proceedings are pending, may petition the court for
the county in which the minor child resides for an order providing for relief
under subsection (3) of this section.
(2) In any proceeding under this section, the court may
cause an investigation, examination or
evaluation to be made under ORS 107.425 or may appoint an individual or a panel or may designate a program to
assist the court in creating parenting plans or resolving disputes regarding
parenting time and to assist the parties in creating and implementing parenting
plans under ORS 107.425 (3).
(3)(a) If the court determines that a child-parent
relationship exists and if the court determines by a preponderance of the
evidence that custody, guardianship, right of visitation, or other generally
recognized right of a parent or person in loco parentis, is appropriate in the
case, the court shall grant such custody, guardianship, right of visitation or
other right to the person, if to do so is in the best interest of the child.
The court may determine temporary custody of the child or temporary visitation
rights under this paragraph pending a final order.
(b) If the court determines that an ongoing personal
relationship exists and if the court determines by clear and convincing
evidence that visitation or contact rights are appropriate in the case, the
court shall grant visitation or contact rights to the person having the ongoing
personal relationship if to do so is in the best interest of the child. The
court may order temporary visitation rights under this paragraph pending a
final order.
(4) In addition to the rights granted under subsection (1)
or (3) of this section, a stepparent with a child-parent relationship who is a
party in a dissolution proceeding may petition the court having jurisdiction
for custody or visitation or may petition the court for the county in which the
minor child resides for adoption of the child. The stepparent may also file for
post decree modification of a decree relating to child custody.
(5)(a) A motion for intervention filed by a person other
than a legal grandparent may be denied or a petition may be dismissed on the
motion of any party or on the court’s own motion if the petition does not state
a prima facie case of emotional ties creating a child-parent relationship or
ongoing personal relationship or does not allege facts that the intervention is
in the best interests of the child.
(b) A motion for intervention filed by a legal grandparent
may be granted upon a finding by clear and convincing evidence that the intervention
is in the best interests of the child.
(6) As used in this section:
(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. 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 18
months.
(b) “Legal grandparent” means the legal parent of the
child’s legal parent.
(c) “Legal parent” means a parent as defined in ORS
419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.
(d) “Ongoing personal relationship” means a relationship
with substantial continuity for at least one year, through interaction,
companionship, interplay and mutuality.
(7) In no event shall costs for the representation of an
intervenor under this section be charged against funds appropriated for
indigent defense services.
(8) In a proceeding under this section, the court may
assess against any party a reasonable attorney fee and costs for the benefit of
any other party.
SECTION 3.
ORS 109.175 is amended to read:
109.175. (1) If paternity of a child born out of wedlock is
established pursuant to a petition filed under ORS 109.125 or an order or
judgment entered pursuant to ORS 109.124 to 109.230 or ORS 416.400 to 416.470,
or if paternity is established by the filing of a voluntary acknowledgment of
paternity as provided by ORS 109.070 (1)(e), the parent with physical custody
at the time of filing of the petition or the notice under ORS 416.415, or the
parent with physical custody at the time of the filing of the voluntary
acknowledgment of paternity, has sole legal custody until a court specifically
orders otherwise. The first time the court determines who should have legal
custody, neither parent shall have the burden of proving a change of
circumstances. The court shall give primary consideration to the best interests
and welfare of the child and shall consider all the standards set out in ORS
107.137.
(2) In any proceeding under this section, the court may
cause an investigation, examination or
evaluation to be made under ORS 107.425 or may appoint an individual or a panel or may designate a program to
assist the court in creating parenting plans or resolving disputes regarding
parenting time and to assist parents in creating and implementing parenting
plans under ORS 107.425 (3).
Approved by the Governor
July 27, 2001
Filed in the office of
Secretary of State July 27, 2001
Effective date January 1,
2002
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