Harrington v. Daum

• Decision Date: 31 January 2001
• Citation: 18 P.3d 456,172 Or. App. 188
• Parties: In the Matter of Visitation with Nicholas L.K. Daum, and Alexander N.G. Daum, Minors. Bruce HARRINGTON, Respondent, v. Randi DAUM, Appellant.
• Court: Oregon Court of Appeals

18 P.3d 456

172 Or. App. 188

In the Matter of Visitation with Nicholas L.K. Daum, and Alexander N.G. Daum, Minors.

Bruce HARRINGTON, Respondent, v. Randi DAUM, Appellant.

(97-3456; CA A108204)

Court of Appeals of Oregon.

Argued and Submitted July 20, 2000.

Decided January 31, 2001.

Mark Kramer, Portland, argued the cause for appellant. With him on the brief were Rebecca A. Burwell, and Kramer & Associates.

John P. Salisbury, Clatskanie, argued the cause for respondent. With him on the brief was Salisbury & Olsen.

Michael C. Livingston, Assistant Attorney General, Salem, filed a brief amicus curiae for the Attorney General of the State of Oregon.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

EDMONDS, P.J.

Randi Daum (father) appeals from a judgment that awarded Bruce Harrington (petitioner) visitation rights with father's two sons, who were 7 and 8 years old at the time of trial. ORS 109.119. Father argues that the statute, construed in light of his constitutional right to make decisions concerning his children, does not permit the trial court to award visitation to petitioner over father's objection under the facts of this case. On de novo review, ORS 19.415(3), we agree and therefore reverse.

There is little dispute over the facts; we state them as we find them on de novo review. The marriage between father and the children's mother was dissolved in November 1995. The dissolution judgment awarded custody of the children to mother and gave father substantial visitation rights. About a month after the dissolution became final, petitioner met mother, and they began dating. By February 1996, petitioner and mother were seeing each other several times a week, with the children often included. From the summer of 1996 until mother's death in August 1997, mother and petitioner had dinner together most evenings, and mother spent the weekends at petitioner's apartment. The children were included, except when they were with father. Petitioner established a play area in one part of his living room for the children, furnishing it with appropriate toys and stuffed animals. Because he got off work before mother, petitioner usually picked up the children from day care. The children liked petitioner and enjoyed being with him.

In late August 1997, petitioner took the children on an overnight church outing that was limited to men and boys. That weekend, mother died in an automobile accident. After a short dispute with mother's parents, father took custody of the children and moved back into mother's house, which had been the marital home before the dissolution and had remained the children's home thereafter. Petitioner wanted to remain active in the children's life, and father allowed him to see the children several times. Father became concerned, however, over several events that, he thought, indicated that petitioner was undermining his role as the children's parent. Those events included petitioner's showing the children a videotape that petitioner took at Christmas 1996 of them with mother; father believed that petitioner should have asked him before doing so and that the videotape interfered with the children's ability to resolve the issues that arose from mother's death. Also, petitioner allowed a photographer's assistant to believe that he was the children's step-father when he picked up their soccer pictures. Petitioner attended the children's swimming lessons when father was unable to do so because his work shift ended later, and he did not correct the children when they called him "dad."¹

Father believed that all of petitioner's actions were intended to undermine his position as the childrens' father and that petitioner was trying to insert himself into a parental role with them. As a result of his concerns, father both limited petitioner's contact with the children and insisted that it occur at his house while he was present. Petitioner was dissatisfied with those limitations and filed this action, in which he seeks a judicial declaration of visitation rights with the children. After three days of testimony, the trial court ruled that both a parent-child relationship and an ongoing personal relationship existed between petitioner and the children. It then ordered visitation, established a schedule, and imposed conditions designed to avoid the problems that father had described.

The trial court acted under ORS 109.119, which establishes a procedure for persons other than parents to seek custody or visitation with a child. Under ORS 109.119(1), any person "who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child" may petition for relief under ORS 109.119(3). That statute provides:

"(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. * * *

"(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."

We first consider whether the trial court correctly found that there was a "child-parent" relationship between petitioner and the children. ORS 109.119(6)(a) defines such a relationship as

"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."

Under that definition, the trial court erred in finding that there was a child-parent relationship. Although petitioner was close to the children before mother's death, and although he, mother and the children spent a significant amount of time at each other's residences, petitioner and mother maintained separate households. Petitioner was never part of the same household as the children. That fact in itself prevents the finding of a child-parent relationship under the statutory definition. We therefore do not need to decide the extent to which the other criteria in the definition might point towards such a relationship.²

Father concedes, and we agree, that petitioner established that he had an ongoing personal relationship with the children under ORS 109.119(6)(d). That statute defines such a relationship as having "substantial continuity for at least one year, through interaction, companionship, interplay and mutuality." ORS 109.119(3)(b) requires that, in order to obtain visitation rights, petitioner must show, by clear and convincing evidence, that those rights are "appropriate in the case" and that visitation "is in the best interest of the child." Our initial task is to discern the legislature's intent in promulgating the statute. We do that by examining the language of the statute in context with its interpreted meaning.

In Shofner and Shofner, 137 Or.App. 543, 905 P.2d 268 (1995), rev. den., 322 Or. 644, 912 P.2d 375 (1996), we discussed the application of an earlier version of ORS 109.119 to a former step-parent who had established a child-parent relationship with the child. We held that the standard of Hruby and Hruby, 304 Or. 500, 748 P.2d 57 (1987), which requires a showing of compelling reasons to award custody to someone other than a natural parent, does not apply to an award of visitation. We disagreed with the parents' argument that statutory changes since Hruby had affected that conclusion. 137 Or.App. at 548-49, 905 P.2d 268. We also noted that the Supreme Court had held in Hruby that ORS 109.119 was purely procedural and did not grant any substantive rights. Because there were no applicable statutory standards, we looked to general principles of common law and equity to determine the standards for ruling on the former step-parent's petition for visitation. Id. at 549-51, 905 P.2d 268. Those principles led us to conclude that the court should consider the particular circumstances of the case, including the parents' right to uninterrupted custody, the nature and extent of the visitation sought, and the best interests of the child. Id. at 552, 905 P.2d 268.

After we decided Shofner, the Supreme Court decided Sleeper and Sleeper, 328 Or. 504, 982 P.2d 1126 (1999), in which a step-parent sought custody, not merely visitation. The court held that an 1987 act that amended ORS 109.119(1) to essentially its present form did not import the "compelling reasons" standard into the statute in a step-parent custody case.³ The court stated that the addition of the phrase "is appropriate in the case" to the statute requires the trial court to examine the circumstances surrounding the custody dispute to determine whether the best interests of the child require awarding custody to the nonbiological parent. In that respect, it disagreed with our conclusion in Shofner that it is necessary to decide whether custody or visitation is appropriate before considering the best interests of the child. 328 Or. at 509-11, 982 P.2d 1126. "If the best interests...