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
 
                         Senate Bill 167
 
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 as
introduced.
 
  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.
 
                        A BILL FOR AN ACT
Relating to child custody; creating new provisions; and amending
  ORS 107.425, 109.119 and 109.175.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2001 Act is added to and made
a part of ORS 107.095 to 107.425. + }
  SECTION 2.  { + The court may appoint a parenting plan and
custody evaluation panel to assist the court in resolving
disputes over parenting plans or parenting time. A member of the
panel must at a minimum:
  (1) Have a master's degree in psychology, social work,
counseling or other behavioral science; and
  (2) Have completed 20 hours of training in conducting
nonadversarial collaborative custody evaluations of parenting
plans required under ORS 107.102. + }
  SECTION 3. 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) 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) 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 on the motion of a
party, may order an evaluation by a parenting plan and custody
evaluation panel appointed under section 2 of this 2001 Act to
assist the court in resolving disputes over parenting plans or
parenting time. The court may authorize a member of the panel to
interview other persons and to request other persons to make
available any expert record deemed by the court to be relevant to
the evaluation. The court may order the parties to authorize the
disclosure of the records. In the event the parties are unable to
stipulate to the selection of a member of the panel, the court
shall appoint a member of the panel. The court shall direct one
or more of the parties to pay for the 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
each party shall pay based on financial ability. + }
    { - (4) - }   { + (5) + } 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) - }   { + (6) + } 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 4. 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  { + or an evaluation + } 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) 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 5. 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  { + or an evaluation + } to be made under ORS
107.425.
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