By, Shirley Farmer, Attorney at Law
The information provided in this article is intended to give a general overview of the topic and is not intended as legal advice. For information specific to your situation, please talk with your estate planning professional.
Article #9, Grandparent and Grandchildren Rights – What You Should Know About Your Legal Rights
It has always been common for grandparents to assist with caring for grandchildren. As society changes, we are seeing more and more situations where the grandparents are now providing the majority of care for and even raising their grandchildren, with or without the parents present. Oregon does not currently have a statute or law specifically regarding grandparent rights. However, there are existing statutes that can be invoked for the benefit of grandparents, such as if the parents are refusing visits or are unable or unwilling to provide proper care for the grandchild. This article will give a brief overview of some options available to grandparents, including: Power of Attorney, Guardianship, Visitation, and Custody.
Power of Attorney: If you are providing regular care for a grandchild, it is important at the very least to have authorization to approve needed medical care if a parent cannot be reached. This can be accomplished with a simple “authorization for health care” form. If, however, you are providing the majority of daily care for a grandchild with the consent of a parent but neither parent is readily available, it is a good idea to have the custodial parent sign a formal Power of Attorney for care of the minor child.
These are temporary in nature, generally lasting six months, but can be renewed/redone periodically as needed to continue in effect. Obtaining Power of Attorney for care of a minor child does not require the involvement of the court, and is a simple form that the parent signs in the presence of a notary granting the specified powers. This type of Power of Attorney is usually specific for the daily care, physical custody, and legal control of the child, and should specifically address authority to approve medical care and to deal with education issues, such as registering a child for school. It is important to note that signing this type of Power of Attorney can grant the authority for a grandparent to have physical custody of a child (that the child can live with the grandparent), but it is not the same as having “legal custody” of a child, which requires a court order of some kind and is addressed below.
Guardianship: If for some reason the parents of the child are not able or willing to provide the daily care of the child, a grandparent may also apply to the court for legal guardianship of the child. Having guardianship lasts longer and gives more authority regarding the care of the child than a temporary Power of Attorney. Obtaining legal guardianship of a child requires filing proper paperwork with the court. If the parents are in agreement to the guardianship, this can be a fairly straightforward process. If the parent(s) does not agree to guardianship, a grandparent can still apply to the court for guardianship of a child, though it is a longer and more complicated process.
Visitation: Sometimes there is a falling out between parents and their adult children, who then choose to refuse contact between grandparents and grandchildren. This can be a particularly stressful and painful time for a grandparent. Unfortunately, there are limitations on what recourse is legally available in Oregon based upon the facts of each family’s situation. Oregon does have a statute that allows for an adult who has an “ongoing personal relationship” with a minor child to pursue visitation, and this is commonly used by grandparents to try and obtain a court order for scheduled visits with their grandchildren. A grandparent can file to intervene (join in) with an already underway court action, such as a divorce or custody matter, or file to initiate the process themselves. To qualify for joining in or initiating under this particular statute (ORS 109.119 for those interested), the grandparent has to be able to demonstrate to the court that she or he has an “ongoing personal relationship” with the child. An ongoing personal relationship involves a relationship “with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality” with the child. Each family situation is different, and there is no set criteria as to what this entails. Each case will be different.
Custody: This same statute can also be used to pursue legal custody of the minor child. To try for legal custody, the grandparent has to show that they have “established emotional ties creating a child-parent relationship” with the child. Again, the facts of each family situation will vary, but a common example involves a grandparent who has resided in the same home with the child, with or without at least one of the parents, for the last year or more providing the regular daily care of the child. Custody is similar to guardianship in the rights and authorities it bestows, but where guardianship is considered temporary, custody is generally considered permanent. For families where it is expected that the parent of the child will not likely be able or willing to serve the parental role long-term, custody may be preferable to guardianship. It is also harder to undo, or change, legal custody than to terminate a guardianship, giving it more permanency.
There is additional criteria that must be met for a court to order visitation or custody of a child to a grandparent under the statute mentioned. Some factors include that the grandparent had physical custody or that the child resided with the grandparent for the six months prior to initiating the legal action, or possibly that the grandparent had met the daily needs of the child such as food, clothing, and shelter. It is also presumed under Oregon law that a parent acts in the best interest of a child, and this presumption must be overcome in court if the parents challenge the request for visits and/or custody by the grandparent. Lastly, there are timelines involved – such as the care needing to be within the six months prior to initiating a matter with the court – so if you are in need of legal help, you will want to contact a legal professional sooner rather than later.
As with many areas of the law, the rules do change over the years. There is hope that there will be more legal remedy available for grandparents to maintain contact with grandchildren in the future. For now, if you are currently providing or wish to provide regular care for your grandchildren or are being denied contact with them by their parents, and have questions about your legal rights, contact your legal professional to discuss your options.