Chapter 873 Oregon Laws 2001
AN ACT
HB 2427
Relating to domestic
relations; creating new provisions; amending ORS 107.105, 107.425, 109.119 and
109.332; repealing ORS 109.121 and 109.123 and sections 101, 101a and 102,
chapter 962, Oregon Laws 2001 (Enrolled Senate Bill 145), and sections 1 and 2,
chapter 833, Oregon Laws 2001 (Enrolled Senate Bill 167); and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 109.119 is amended to read:
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 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)(a) In any
proceeding under this section, [the court
may cause an investigation to be made under ORS 107.425.] there is a presumption that the legal parent
acts in the best interest of the child.
(b) In an order granting
relief under this section, the court shall include findings of fact supporting
the rebuttal of the presumption described in paragraph (a) of this subsection.
(c) The presumption
described in paragraph (a) of this subsection does not apply in a proceeding to
modify an order granting relief under this section.
(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 [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 having the child-parent relationship,
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 that the presumption described in subsection (2)(a) of this section has
been rebutted 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 or contact rights under this paragraph
pending a final order.
(4)(a) In deciding
whether the presumption described in subsection (2)(a) of this section has been
rebutted and whether to award visitation or contact 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 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.
(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.
[(4)] (5) In addition to the other 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
under this section 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)] (6)(a) A motion for intervention filed
under this section shall comply with ORCP 33 and state the grounds for relief
under this section.
(b)(A) A motion for intervention
filed under ORS 419B.115 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] interest of the child.
[(b)] (B) A motion for intervention filed under ORS 419B.115by 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.
(c) Costs for the
representation of an intervenor under this section or ORS 419B.115 may not be
charged against funds appropriated for indigent defense services.
(7) In a proceeding
under this section, the court may:
(a) Cause an
investigation to be made under ORS 107.425.
(b) Assess against a
party reasonable attorney fees and costs for the benefit of another party.
[(6)] (8) 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] 12
months.
(b) “Circumstances
detrimental to the child” includes but is not limited to circumstances that may
cause psychological, emotional or physical harm to a child.
[(b)] (c) “[Legal] Grandparent” means the legal parent of the child’s legal
parent.
[(c)] (d) “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)] (e) “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 1a.
If Senate Bill 167 becomes law, section
2, chapter 833, Oregon Laws 2001 (Enrolled Senate Bill 167) (amending ORS
109.119), is repealed and ORS 109.119, as amended by section 1 of this 2001
Act, is amended to read:
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 or an ongoing personal relationship with a child 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
child resides, 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.
(b) In an order granting relief under this section, the
court shall include findings of fact supporting the rebuttal of the presumption
described in paragraph (a) of this subsection.
(c) The presumption described in paragraph (a) of this
subsection does not apply in a proceeding to modify an order granting relief
under this section.
(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, guardianship, right of visitation
or other right to the person having the child-parent relationship, 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 that the presumption described
in subsection (2)(a) of this section has been rebutted by clear and convincing
evidence, 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 or contact rights under
this paragraph pending a final order.
(4)(a) In deciding whether the presumption described in
subsection (2)(a) of this section has been rebutted and whether to award
visitation or contact 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 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.
(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.
(5) In addition to the other rights granted under 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 under this section or may petition the court for the county in
which the child resides for adoption of the child. The stepparent may also file
for post decree modification of a decree relating to child custody.
(6)(a) A motion for intervention filed under this section
shall comply with ORCP 33 and state the grounds for relief under this section.
(b)(A) A motion for intervention filed under ORS 419B.115
by a person other than a 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 interest of the child.
(B) A motion for intervention filed under ORS 419B.115 by a
grandparent may be granted upon a finding by clear and convincing evidence that
the intervention is in the best interests of the child.
(c) Costs for the representation of an intervenor under
this section or ORS 419B.115 may not be charged against funds appropriated for
indigent defense services.
(7) In a proceeding under this section, the court may:
(a) 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).
(b) Assess against a party reasonable attorney fees and
costs for the benefit of another party.
(8) 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 12
months.
(b) “Circumstances detrimental to the child” includes but
is not limited to circumstances that may cause psychological, emotional or
physical harm to a child.
(c) “Grandparent” means the legal parent of the child’s
legal parent.
(d) “Legal parent” means a parent as defined in ORS
419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.
(e) “Ongoing personal relationship” means a relationship
with substantial continuity for at least one year, through interaction,
companionship, interplay and mutuality.
SECTION 1b.
The amendments to ORS 109.119 by section
1a of this 2001 Act become operative on January 1, 2002.
SECTION 1c.
If Senate Bill 145 becomes law and
Senate Bill 167 does not become law, section 102, chapter 962, Oregon Laws 2001
(Enrolled Senate Bill 145) (amending ORS 109.119), is repealed and ORS 109.119,
as amended by section 1 of this 2001 Act, is amended to read:
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 or an ongoing personal relationship with a child 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
child resides, 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.
(b) In an order granting relief under this section, the
court shall include findings of fact supporting the rebuttal of the presumption
described in paragraph (a) of this subsection.
(c) The presumption described in paragraph (a) of this
subsection does not apply in a proceeding to modify an order granting relief
under this section.
(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, guardianship, right of visitation
or other right to the person having the child-parent relationship, 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 that the presumption described
in subsection (2)(a) of this section has been rebutted by clear and convincing
evidence, 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 or contact rights under
this paragraph pending a final order.
(4)(a) In deciding whether the presumption described in
subsection (2)(a) of this section has been rebutted and whether to award
visitation or contact 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 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.
(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.
(5) In addition to the other rights granted under 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 under this section or may petition the court for the county in
which the child resides for adoption of the child. The stepparent may also file
for post decree modification of a decree relating to child custody.
(6)(a) A motion for intervention filed under this section
shall comply with ORCP 33 and state the grounds for relief under this section.
(b)(A) A motion for intervention filed under ORS 419B.115
by a person other than a 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 interest of the child.
(B) A motion for intervention filed under ORS 419B.115 by a
grandparent may be granted upon a finding by clear and convincing evidence that
the intervention is in the best interests of the child.
(c) Costs for the representation of an intervenor under
this section or ORS 419B.115 may not be charged against funds appropriated for
[indigent] public defense services.
(7) In a proceeding under this section, the court may:
(a) Cause an investigation to be made under ORS 107.425.
(b) Assess against a party reasonable attorney fees and
costs for the benefit of another party.
(8) 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 12
months.
(b) “Circumstances detrimental to the child” includes but
is not limited to circumstances that may cause psychological, emotional or
physical harm to a child.
(c) “Grandparent” means the legal parent of the child’s
legal parent.
(d) “Legal parent” means a parent as defined in ORS
419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.
(e) “Ongoing personal relationship” means a relationship
with substantial continuity for at least one year, through interaction,
companionship, interplay and mutuality.
SECTION 1d.
The amendments to ORS 109.119 by section
1c of this 2001 Act become operative on October 1, 2003.
SECTION 1e.
If both Senate Bill 145 and Senate Bill
167 become law, section 102, chapter 962, Oregon Laws 2001 (Enrolled Senate
Bill 145) (amending ORS 109.119), is repealed and ORS 109.119, as amended by
sections 1 and 1a of this 2001 Act, is amended to read:
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 or an ongoing personal relationship with a child 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
child resides, 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.
(b) In an order granting relief under this section, the
court shall include findings of fact supporting the rebuttal of the presumption
described in paragraph (a) of this subsection.
(c) The presumption described in paragraph (a) of this
subsection does not apply in a proceeding to modify an order granting relief
under this section.
(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, guardianship, right of visitation
or other right to the person having the child-parent relationship, 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 that the presumption described
in subsection (2)(a) of this section has been rebutted by clear and convincing
evidence, 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 or contact rights under
this paragraph pending a final order.
(4)(a) In deciding whether the presumption described in
subsection (2)(a) of this section has been rebutted and whether to award
visitation or contact 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 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.
(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.
(5) In addition to the other rights granted under 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 under this section or may petition the court for the county in
which the child resides for adoption of the child. The stepparent may also file
for post decree modification of a decree relating to child custody.
(6)(a) A motion for intervention filed under this section
shall comply with ORCP 33 and state the grounds for relief under this section.
(b)(A) A motion for intervention filed under ORS 419B.115
by a person other than a 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 interest of the child.
(B) A motion for intervention filed under ORS 419B.115 by a
grandparent may be granted upon a finding by clear and convincing evidence that
the intervention is in the best interests of the child.
(c) Costs for the representation of an intervenor under
this section or ORS 419B.115 may not be charged against funds appropriated for
[indigent] public defense services.
(7) In a proceeding under this section, the court may:
(a) 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).
(b) Assess against a party reasonable attorney fees and
costs for the benefit of another party.
(8) 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 12
months.
(b) “Circumstances detrimental to the child” includes but
is not limited to circumstances that may cause psychological, emotional or
physical harm to a child.
(c) “Grandparent” means the legal parent of the child’s
legal parent.
(d) “Legal parent” means a parent as defined in ORS
419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.
(e) “Ongoing personal relationship” means a relationship
with substantial continuity for at least one year, through interaction,
companionship, interplay and mutuality.
SECTION 1f.
The amendments to ORS 109.119 by section
1e of this 2001 Act become operative on October 1, 2003.
SECTION 2.
ORS 109.121 and 109.123 are repealed.
SECTION 3.
The amendments to ORS 109.119 by section
1 of this 2001 Act apply to petitions filed under ORS 109.119 or 109.121
before, on or after the effective date of this 2001 Act.
SECTION 4.
The amendments to ORS 109.119 by section
1 of this 2001 Act and the repeal of ORS 109.121 and 109.123 by section 2 of
this 2001 Act do not constitute a change in circumstances sufficient for the
court to reconsider an order or decree.
SECTION 5.
ORS 107.105 is amended to read:
107.105. (1) Whenever the court grants a decree of marital
annulment, dissolution or separation, it may further decree as follows:
(a) For the future care and custody, by one party or
jointly, of all minor children of the parties born, adopted or conceived during
the marriage, and for minor children born to the parties prior to the marriage,
as the court may deem just and proper under ORS 107.137. The court may hold a
hearing to decide the custody issue prior to any other issues. When
appropriate, the court shall recognize the value of close contact with both
parents and encourage joint parental custody and joint responsibility for the
welfare of the children.
(b) For parenting time rights of the parent not having
custody of such children, and for visitation rights [of grandparents] pursuant to a petition filed under [ORS 109.121] ORS 109.119. When a parenting plan has been developed as required
by ORS 107.102, the court shall review the parenting plan and, if approved,
incorporate the parenting plan into the court’s final order. When incorporated
into a final order, the parenting plan is determinative of parenting time
rights. If the parents have been unable to develop a parenting plan or if
either of the parents requests the court to develop a detailed parenting plan,
the court shall develop the parenting plan in the best interest of the child,
ensuring the noncustodial parent sufficient access to the child to provide for
appropriate quality parenting time and assuring the safety of the parties, if
implicated. The court may deny parenting time to the noncustodial parent under
this subsection only if the court finds that parenting time would endanger the
health or safety of the child. The court shall recognize the value of close
contact with both parents and encourage, when practicable, joint responsibility
for the welfare of such children and extensive contact between the minor
children of the divided marriage and the parties. If the court awards parenting
time to a noncustodial parent who has committed abuse, the court shall make
adequate provision for the safety of the child and the other parent in
accordance with the provisions of ORS 107.718 (4).
(c) For the support of the children of the marriage by the
parties. In ordering child support, the formula established by ORS 25.270 to
25.287 shall apply. The court may at any time require an accounting from the
custodial parent with reference to the use of the money received as child
support. The court is not required to order support for any minor child who has
become self-supporting, emancipated or married, or who has ceased to attend
school after becoming 18 years of age.
(d) For spousal support, an amount of money for a period of
time as may be just and equitable for one party to contribute to the other, in
gross or in installments or both. The court may approve an agreement for the
entry of an order for the support of a party. In making the spousal support
order, the court shall designate one or more categories of spousal support and
shall make findings of the relevant factors in the decision. The court may
order:
(A) Transitional spousal support as needed for a party to
attain education and training necessary to allow the party to prepare for
reentry into the job market or for advancement therein. The factors to be
considered by the court in awarding transitional spousal support include but
are not limited to:
(i) The duration of the marriage;
(ii) A party’s training and employment skills;
(iii) A party’s work experience;
(iv) The financial needs and resources of each party;
(v) The tax consequences to each party;
(vi) A party’s custodial and child support
responsibilities; and
(vii) Any other factors the court deems just and equitable.
(B) Compensatory spousal support when there has been a
significant financial or other contribution by one party to the education,
training, vocational skills, career or earning capacity of the other party and
when an order for compensatory spousal support is otherwise just and equitable
in all of the circumstances. The factors to be considered by the court in awarding
compensatory spousal support include but are not limited to:
(i) The amount, duration and nature of the contribution;
(ii) The duration of the marriage;
(iii) The relative earning capacity of the parties;
(iv) The extent to which the marital estate has already
benefited from the contribution;
(v) The tax consequences to each party; and
(vi) Any other factors the court deems just and equitable.
(C) Spousal maintenance as a contribution by one spouse to
the support of the other for either a specified or an indefinite period. The
factors to be considered by the court in awarding spousal maintenance include
but are not limited to:
(i) The duration of the marriage;
(ii) The age of the parties;
(iii) The health of the parties, including their physical,
mental and emotional condition;
(iv) The standard of living established during the
marriage;
(v) The relative income and earning capacity of the
parties, recognizing that the wage earner’s continuing income may be a basis
for support distinct from the income that the supported spouse may receive from
the distribution of marital property;
(vi) A party’s training and employment skills;
(vii) A party’s work experience;
(viii) The financial needs and resources of each party;
(ix) The tax consequences to each party;
(x) A party’s custodial and child support responsibilities;
and
(xi) Any other factors the court deems just and equitable.
(e) For the delivery to one party of such party’s personal
property in the possession or control of the other at the time of the giving of
the decree.
(f) For the division or other disposition between the
parties of the real or personal property, or both, of either or both of the
parties as may be just and proper in all the circumstances. A retirement plan
or pension or an interest therein shall be considered as property. The court
shall consider the contribution of a spouse as a homemaker as a contribution to
the acquisition of marital assets. There is a rebuttable presumption that both
spouses have contributed equally to the acquisition of property during the
marriage, whether such property is jointly or separately held. Subsequent to
the filing of a petition for annulment or dissolution of marriage or
separation, the rights of the parties in the marital assets shall be considered
a species of coownership, and a transfer of marital assets under a decree of
annulment or dissolution of marriage or of separation entered on or after
October 4, 1977, shall be considered a partitioning of jointly owned property.
The court shall require full disclosure of all assets by the parties in
arriving at a just property division. In arriving at a just and proper division
of property, the court shall consider reasonable costs of sale of assets, taxes
and any other costs reasonably anticipated by the parties. If a spouse has been
awarded spousal support in lieu of a share of property, the court shall so
state on the record, and shall order the obligor to provide for and maintain
life insurance in an amount commensurate with the obligation and designating
the obligee as beneficiary for the duration of the obligation. If the obligor
dies prior to the termination of such support and such insurance is not in
force, the court may modify the method of payment of spousal support under the
decree or order of support from installments to a lump sum payment to the
obligee from the estate of the obligor in an amount commensurate with the
present value of the spousal support at the time of death. The obligee or
attorney of the obligee shall cause a certified copy of the decree to be
delivered to the life insurance company or companies. If the obligee or the
attorney of the obligee delivers a true copy of the decree to the life
insurance company or companies, identifying the policies involved and requesting
such notification under this section, the company or companies shall notify the
obligee, as beneficiary of the insurance policy, whenever the policyholder
takes any action that will change the beneficiary or reduce the benefits of the
policy. Either party may request notification by the insurer when premium
payments have not been made. If the obligor is ordered to provide for and
maintain life insurance, the obligor shall provide to the obligee a true copy
of the policy. The obligor shall also provide to the obligee written notice of
any action that will reduce the benefits or change the designation of the
beneficiaries under the policy.
(g) For the creation of trusts as follows:
(A) For the appointment of one or more trustees to hold,
control and manage for the benefit of the children of the parties, of the
marriage or otherwise, such of the real or personal property of either or both
of the parties, as the court may order to be allocated or appropriated to their
support and welfare; and to collect, receive, expend, manage or invest any sum
of money decreed for the support and welfare of minor children of the parties.
(B) For the appointment of one or more trustees to hold,
manage and control such amount of money or such real or personal property of either
or both of the parties, as may be set aside, allocated or appropriated for the
support of a party.
(C) For the establishment of the terms of the trust and
provisions for the disposition or distribution of such money or property to or
between the parties, their successors, heirs and assigns after the purpose of
the trust has been accomplished. Upon petition of a party or a person having an
interest in the trust showing a change of circumstances warranting a change in
the terms of the trust, the court may make and direct reasonable modifications
in its terms.
(h) To change the name of either spouse to a name the
spouse held before the marriage. The court shall decree a change if it is
requested by the affected party.
(i) For a judgment against one party in favor of the other
for any sums of money found to be then remaining unpaid upon any enforceable
order or orders theretofore duly made and entered in the proceedings under any
of the provisions of ORS 107.095, and for a judgment against one party in favor
of the other or in favor of the other’s attorney for any further sums as
additional attorney fees or additional costs and expenses of suit or defense as
the court finds reasonably and necessarily incurred by such party; or, in the
absence of any such order or orders pendente lite, a like judgment for such
amount of money as the court finds was reasonably necessary to enable such
party to prosecute or defend the suit. The decree may include a judgment for
any arrearage in any sum ordered while litigation was pending, but if such a
judgment is not included in the decree, such arrearages shall not be deemed
satisfied.
(2) In determining the proper amount of support and the
proper division of property under subsection (1)(c), (d) and (f) of this
section, the court may consider evidence of the tax consequences on the parties
of its proposed decree.
(3) Upon the filing of the decree, the property division
ordered shall be deemed effective for all purposes. This transfer by decree,
which shall effect solely owned property transferred to the other spouse as
well as commonly owned property in the same manner as would a declaration of a
resulting trust in favor of the spouse to whom the property is awarded, shall
not be deemed a taxable sale or exchange.
(4) If an appeal is taken from a decree of annulment or
dissolution of marriage or of separation or from any part of a decree rendered
in pursuance of the provisions of ORS 107.005 to 107.085, 107.095, 107.105,
107.115 to 107.174, 107.405, 107.425, 107.445 to 107.520, 107.540 and 107.610,
the court making such decree may provide in a separate order for any relief
provided for in ORS 107.095 and shall provide that the order is to be in effect
only during the pendency of the appeal. A temporary order under this subsection
may be enforced as provided in ORS 33.015 to 33.155. On motion of a party the
Court of Appeals may review the trial court’s disposition of a request for a
temporary order. A motion under this subsection must be filed with the Court of
Appeals within 14 days after the entry of the temporary order. The Court of
Appeals may modify the trial court’s order only if the Court of Appeals finds
an abuse of discretion by the trial court. Upon such finding, the Court of
Appeals may enter a temporary order, affirm, modify or vacate the trial court’s
order, remand the order to the trial court for reconsideration or impose terms
and conditions on the order.
(5) If an appeal is taken from the decree or other
appealable order in a suit for annulment or dissolution of a marriage or for
separation, and the appellate court awards costs and disbursements to a party,
it may also award to that party, as part of the costs, such additional sum of
money as it may adjudge reasonable as an attorney fee on the appeal.
(6) If, as a result of a suit for the annulment or
dissolution of a marriage or for separation, the parties to such suit become
owners of an undivided interest in any real or personal property, or both,
either party may maintain supplemental proceedings by filing a petition in such
suit for the partition of such real or personal property, or both, within two
years from the entry of said decree, showing among other things that the
original parties to such decree and their joint or several creditors having a
lien upon any such real or personal property, if any there be, constitute the
sole and only necessary parties to such supplemental proceedings. The procedure
in the supplemental proceedings, so far as applicable, shall be the procedure
provided in ORS 105.405, for the partition of real property, and the court
granting such decree shall have in the first instance and retain jurisdiction
in equity therefor.
SECTION 6.
ORS 107.425 is amended to read:
107.425. (1) In suits or proceedings described in
subsection (2) 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)] (e) A person or state agency files a
petition under ORS 109.125 to establish paternity and paternity is established;
or
[(g)] (f) A habeas corpus proceeding is
before the court.
(3) 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. The court may also authorize
the expert to interview other persons and to request other persons to make
available to the expert records deemed by the court or the expert 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 more of the parties to pay for the investigation 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.
(4) The court, on its own motion or 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) Prior to the entry of an order, the court on its own
motion or upon 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 6a.
If Senate Bill 167 becomes law, section
1, chapter 833, Oregon Laws 2001 (Enrolled Senate Bill 167) (amending ORS
107.425), is repealed and ORS 107.425, as amended by section 6 of this 2001
Act, 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 person or
state agency files a petition under ORS 109.125 to establish paternity and
paternity is established; or]
[(f) 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 person or state
agency files a petition under ORS 109.125 to establish paternity and paternity
is established; or
(f) 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 6b.
The amendments to ORS 107.425 by section
6a of this 2001 Act become operative on January 1, 2002.
SECTION 6c.
If both Senate Bill 167 and Senate Bill
145 become law, sections 101 and 101a, chapter 962, Oregon Laws 2001 (Enrolled
Senate Bill 145) (both amending ORS 107.425), are repealed and ORS 107.425, as
amended by sections 6 and 6a of this 2001 Act, is amended to read:
107.425. (1) In suits or proceedings described in
subsection (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] public defense services.
(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 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 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
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]
public 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] public 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 person or state agency files a petition under ORS
109.125 to establish paternity and paternity is established; or
(f) 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.
(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]
public defense services.
(7) Prior to the entry of an order, the court on its own
motion or 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 6d.
The amendments to ORS 107.425 by section
6c of this 2001 Act become operative on October 1, 2003.
SECTION 7.
ORS 109.332 is amended to read:
109.332. (1) When a petition has been filed under ORS
109.309 concerning the adoption by a stepparent of a child, a grandparent
served with a copy of the petition under ORS 109.309 (6) may file a motion with
the court asking the court to award a grandparent the right to regular
visitation with the child after the adoption. A motion under this subsection
must be filed no later than 30 days after service of the petition.
(2) The court shall award a grandparent visitation rights
only if the court finds by clear and convincing evidence that:
(a) Establishing visitation rights is in the best interests
of the child;
(b) A substantial relationship existed prior to the
adoption between the child and the grandparent seeking visitation rights; and
(c) Establishing visitation rights does not substantially
interfere with the relationship between the child and the adoptive family.
(3) In a stepparent adoption, a grandparent whose
visitation rights were terminated as a result of the adoption prior to August
23, 1993, may petition to have the visitation rights restored. The petition
must be filed within one year after August 23, 1993. The court shall restore
the visitation rights, unless the court finds that restoration of visitation
rights is not in the best interests of the child.
(4) As used in this section, “grandparent” includes a
grandparent who has established custody, visitation or other rights under ORS
109.119 [or visitation rights under ORS
109.121].
SECTION 8.
This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2001 Act takes effect on its passage.
Approved by the Governor
July 31, 2001
Filed in the office of
Secretary of State July 31, 2001
Effective date July 31, 2001
__________