71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1711
 
                           A-Engrossed
 
                         Senate Bill 167
                  Ordered by the Senate April 4
            Including Senate Amendments dated April 4
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Legislative Counsel
  Committee for Senator-elect Bev Clarno)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
    { - Permits court to appoint parenting plan and custody
evaluation panel to assist court in evaluation of parenting plan
and parenting time disputes. Establishes qualifications of
members of panel. - }  { +  Permits court to appoint expert or
panel of experts to investigate, examine or evaluate parties or
children in specified proceedings. Permits court to appoint
individual or panel or designate program to assist court in
evaluating parenting plan and parenting time disputes and to
assist parties with parenting plan. + }
 
                        A BILL FOR AN ACT
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) + }.
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