71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
HA to A-Eng. SB 167
LC 1711/SB 167-A2
HOUSE AMENDMENTS TO
A-ENGROSSED SENATE BILL 167
By COMMITTEE ON JUDICIARY
May 31
On page 1 of the printed A-engrossed bill, line 2, after the
semicolon delete the rest of the line and insert 'creating new
provisions; amending ORS 107.105, 107.425, 109.119, 109.175 and
109.332; repealing ORS 109.121 and 109.123; and declaring an
emergency.'.
After line 3, insert:
' { + 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 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) - }
{ + subsections (2) to (5) + } of this section.
' { + (2)(a) In a dispute over the custody of a child, or in
a dispute over another generally recognized right of a parent or
person in loco parentis, involving the child's legal parent and a
petitioner with a child-parent relationship with the child, there
is a presumption that it is in the best interests of the child to
be in the custody of the legal parent. The court shall grant
relief, including such conditions and limitations as it deems
reasonable, if the petitioner shows by a preponderance of the
evidence that:
' (A) A child-parent relationship exists;
' (B) The presumption is rebutted because:
' (i) The legal parent is unable to adequately care for the
child; or
' (ii) Circumstances detrimental to the child exist if the
child is in the custody of the legal parent; and
' (C) It is in the best interests of the child to be in the
custody of the petitioner.
' (b) In an order granting custody to the petitioner, the court
shall include findings of fact supporting the rebuttal of the
presumption described in paragraph (a) of this subsection.
' (3) In a dispute over visitation with a child involving the
child's legal parent and a petitioner with a child-parent
relationship with the child, there is a presumption that the
legal parent acts in the best interests of the child. The court
shall grant visitation, including such conditions and limitations
as it deems reasonable, if the petitioner shows by a
preponderance of the evidence that:
' (a) A child-parent relationship exists;
' (b) The legal parent has denied the petitioner reasonable
opportunity to visit the child;
' (c) Detriment to the child would occur if visitation were
denied;
' (d) Visitation would not substantially interfere with the
custodial relationship; and
' (e) It is in the best interests of the child to visit with
the petitioner.
' (4) In a dispute over visitation with a child involving the
child's legal parent and a petitioner who is the child's legal
grandparent, there is a presumption that the legal parent acts in
the best interests of the child. The court shall grant
visitation, including such conditions and limitations as it deems
reasonable, if the petitioner shows by a preponderance of the
evidence that:
' (a) The petitioner is the child's legal grandparent;
' (b) The petitioner has established or attempted to establish
ongoing personal contact with the child;
' (c) The legal parent has denied the petitioner reasonable
opportunity to visit the child;
' (d) Detriment to the child would occur if visitation were
denied;
' (e) Visitation would not substantially interfere with the
custodial relationship; and
' (f) It is in the best interests of the child to visit with
the petitioner.
' (5) In a dispute over visitation with a child involving the
child's legal parent and a petitioner with an ongoing personal
relationship with the child, there is a presumption that the
legal parent acts in the best interests of the child. The court
shall grant visitation, including such conditions and limitations
as it deems reasonable, if the petitioner shows by clear and
convincing evidence that:
' (a) An ongoing relationship exists;
' (b) The legal parent has denied the petitioner reasonable
opportunity to visit the child;
' (c) Detriment to the child would occur if visitation were
denied;
' (d) Visitation would not substantially interfere with the
custodial relationship; and
' (e) It is in the best interests of the child to visit with
the petitioner. + }
' { - (2) In any proceeding under this section, the court may
cause an investigation to be made under ORS 107.425. - }
' { - (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) - } { + (6) + } 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.
' { + (7) Notwithstanding subsection (1) of this section:
' (a) When custody of a child has been granted to or retained
by a legal parent in an order entered under this section or in a
decree or final order entered under ORS 107.105, 107.135 or
109.103, a person or legal grandparent may file a petition with
the court for an order providing for relief under subsections (2)
to (5) of this section only if:
' (A) The person or legal grandparent did not file a petition
or a motion for intervention during the pendency of the
proceedings under this section or ORS 107.105, 107.135 or
109.103; or
' (B) There has been a change in circumstances relating to the
custodial legal parent or the child such as is required to allow
the court to reconsider the provisions of the order or decree.
' (b) When custody of a child has been granted to a person with
a child-parent relationship in an order entered under this
section, the order may be modified only upon a showing that there
has been a change in circumstances relating to the legal parent,
the person with custody or the child such as is required to allow
the court to reconsider the provisions of the order. In the
modification proceeding, to retain custody the person with
custody is not required to rebut the presumption set forth in
subsection (2)(a) of this section.
' (c) When visitation with a child has been granted to a person
with a child-parent relationship, to a legal grandparent or to a
person with an ongoing personal relationship in an order entered
under this section or ORS 109.121 (1999 Edition), the order may
be modified only upon a showing that a change in visitation is in
the best interests of the child. In the modification proceeding,
to retain visitation rights the person or legal grandparent with
visitation rights is not required to make the showing described
in subsections (3)(a) to (e), (4)(a) to (f) or (5)(a) to (e) of
this section. + }
' { - (5)(a) - } { + (8)(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
419C.285 + } 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) - } { + (B) + } A motion for intervention filed
{ + under ORS 419C.285 + } 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.
' { + (c) Costs for the representation of an intervenor under
this section or ORS 419C.285 may not be charged against funds
appropriated for indigent defense services.
' (9) 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) Determine temporary custody of the child or temporary
visitation rights, including such conditions and limitations as
it deems reasonable, according to the court's determination of
the best interests of the child pending a final order.
' (c) Assess against a party reasonable attorney fees and costs
for the benefit of another party. + }
' { - (6) - } { + (10) + } 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) 'Circumstances detrimental to the child' or
'detriment to the child' includes but is not limited to
psychological, emotional or physical harm to a child. + }
' { - (b) - } { + (c) + } 'Legal grandparent' means the
legal parent of the child's legal parent. { + ' Legal
grandparent' does not include a stepgrandparent. + }
' { - (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 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.'.
In line 4, delete '1' and insert '6'.
On page 2, delete line 44.
In line 45, delete '(f)' and insert '(e)'.
On page 3, line 2, delete '(g)' and insert '(f)'.
Delete lines 17 through 45.
On page 4, delete lines 1 through 27.
In line 28, delete '3' and insert '7'.
After line 43, insert:
' { + SECTION 8. + } 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 9. + } { + 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. + } ' .
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