IN THE MATTER OF MARRIAGE OF O'DONNELL-LAMONT AND LAMONT

• Decision Date: 16 October 2002
• Citation: 184 Or.App. 249,56 P.3d 929
• Parties: In the Matter of the MARRIAGE OF Rayne Elizabeth O'DONNELL-LAMONT (deceased), Petitioner, and Michael David LAMONT, Jr., Appellant, and Christine O'Donnell, Patrick O'Donnell, and Darrell Miller, Respondents.
• Court: Oregon Court of Appeals

56 P.3d 929

184 Or.App. 249

In the Matter of the MARRIAGE OF Rayne Elizabeth O'DONNELL-LAMONT (deceased), Petitioner, and

Michael David LAMONT, Jr., Appellant, and

Christine O'Donnell, Patrick O'Donnell, and Darrell Miller, Respondents.

C98 1284 DR; A112960

Court of Appeals of Oregon.

Argued and Submitted May 3, 2002.

Decided October 16, 2002.

Philip F. Schuster, II, Portland, argued the cause for appellant. With him on the briefs was Dierking & Schuster.

Jacqueline Koch, Portland, argued the cause for respondents Christine O'Donnell and Patrick O'Donnell. With her on the brief was Koch & Deering.

No appearance for respondent Darrell Miller.

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

EDMONDS, P.J.

Father appeals from a judgment that awarded custody of his two children to their maternal grandparents, the parents of father's deceased former wife.¹ We reverse.

We state the facts as we find them on our de novo review, in which we are assisted by the trial court's discussion in its letter opinion.² Father and mother were married in December 1991 and had two children, Taryn, who was born in September 1992, and Seaira, who was born in January 1996. Early in their marriage they lived in the Detroit Lake area, near grandfather. Later, after a falling out with grandfather and his then wife, they moved to Washington County, near grandparents. Throughout the marriage, mother was the primary caregiver for the children, in part because father worked part of the time as a long-haul truck driver, which required him to be gone several nights a week.

Mother and father began having marital difficulties in 1997. In March 1998 mother obtained a Family Abuse Prevention Act restraining order against father. The basis for the order is not entirely clear from the record, and mother appears to have enforced it or ignored it as it suited her. For instance, while the order was in effect and while mother's petition to dissolve the marriage was pending, mother and father traveled together to Hawaii with the children.

The dissolution of mother's and father's marriage became effective in September 1998. The stipulated judgment of dissolution provided that father would have supervised visitation with the children, but there is no evidence that his visitation was in fact supervised. After the dissolution, mother began a relationship with Miller. In December 1998, father came to Miller's residence while mother and the children were present. That conduct resulted in father's arrest, and he was subsequently fined for the violation of the restraining order. In March 1999, Miller, mother, and the children went to Disneyland. While they were there, mother died from a pre-existing heart condition.

At the time of mother's death, father was living in a small travel trailer, which he acknowledged was inappropriate for the children. He therefore agreed that they could stay with grandparents for a time. Grandparents wanted custody of the children, but the parties were not able to agree on permanent arrangements. Father subsequently reasserted his right to custody of the children. In July 1999, grandparents filed this petition while the children were visiting with them, a visit to which father had agreed. They received an order awarding them temporary custody pending a hearing on the merits. Before the hearing occurred, the court returned custody of the children to father, who promised that he would keep them in the Salem area. Despite that promise, he moved to Montana with the children and with Laura Oliver, his domestic associate. As a result, the court found father in contempt and ordered him to return the children to Oregon; he complied with the order. Father moved to the Detroit Lake area to be near grandfather and grandfather's current wife, a retired schoolteacher. Father, Oliver, the children, and Oliver's youngest child initially lived in a large room over a garage on grandfather's property, but by the time of the hearing they had moved to a house in Mill City. In July 2000, after a hearing on the merits, the trial court awarded permanent custody to grandparents, with significant visitation for father; father appeals that award.

Before discussing the facts related to custody we must first determine the standard by which we evaluate a custody dispute between a parent and nonparents. We recently discussed that question in Wilson and Wilson, 184 Or.App. 212, 55 P.3d 1106 (2002), and will summarize much of that discussion here. The issue involves the interplay between ORS 109.119 (1997)³ and decisions of this court, the Oregon Supreme Court, and the United States Supreme Court. The relevant portions of ORS 109.119 (1997) provided:

"(1) Any person * * * 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 * * *.

"(2)(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."

Until recently, the leading case on custody and visitation disputes between a biological parent⁴ and a third party was Sleeper and Sleeper, 328 Or. 504, 982 P.2d 1126 (1999).⁵ In Sleeper, the Supreme Court focussed on the best interests of the child rather than the rights of the biological parent. However, we have recently revisited the issue as a result of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In that case, a majority of the justices agreed with Justice O'Connor's statement in the plurality opinion that, "[i]n light of * * * extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children." 530 U.S. at 66,120 S.Ct. 2054.⁶ They also agreed that, under the circumstances of the specific case, the state trial court's decision to override the biological parent's reasonable choice to limit visitation, merely because the court believed that visitation was "in the best interest of the child," impermissibly infringed on that fundamental parental right. Id. at 68-70, 120 S.Ct. 2054.

In Harrington v. Daum, 172 Or.App. 188, 18 P.3d 456 (2001), and Newton v. Thomas, 177 Or.App. 670, 33 P.3d 1056 (2001), we treated the biological parent's fundamental right as a supervening right that would normally trump the interests of the nonbiological parent. Thus, instead of basing custody or visitation decisions under ORS 109.119 (1997) on the "best interest of the child," subject to some undefined "supervening right" of the biological parent, we now give significant weight in that calculus to a fit biological parent's fundamental right to determine the care, custody, and control of his or her children. Thus, the fit biological parent's right is "supervening," in the sense that the right "supervenes" the pure "best interest" analysis itself, replacing it with a legal standard under which a fit biological parent will presumptively prevail over a nonparent, unless the nonparent, by a preponderance of the evidence, ORS 109.119(3)(a) (1997), can overcome the presumption.⁷

To determine the effect of the presumption on the process of weighing the evidence involved in disputed custody cases between biological parents and nonparents, we also take guidance from Hruby and Hruby, 304 Or. 500, 748 P.2d 57 (1987), which governed custody disputes between biological parents and qualifying nonparents before Sleeper and which established a standard not unlike the one that we have adopted in response to Troxel.⁸ In Hruby, after a thorough review of Oregon custody cases involving parents and nonparents, the court concluded:

"[A] natural parent has the right to the custody of his or her children, [in the absence of] a compelling reason for placing the children in the custody of another; the `best interests of the child' standard applicable to custody disputes between natural parents in a marriage dissolution proceeding is not applicable to custody disputes between natural parents and other persons."

304 Or. at 510, 748 P.2d 57.

The court expressly noted that nonparents could establish compelling reasons to obtain custody without proving that the parent was unfit. Rather, the proper inquiry was whether custody with the parent would be "`highly detrimental' to the child's welfare, regardless of the parent's fitness," Hruby, 304 Or. at 508, 748 P.2d 57; whether custody with the nonparent was necessary "to protect the children from some compelling threat to their present or future well-being," id. at 509, 748 P.2d 57; and whether there was "good cause" or "cogent reasons," id. at 508, 748 P.2d 57, to place the child with the nonparent.

The court summarized its conclusions by explaining:

"We use `compelling' to emphasize that in a custody dispute between a natural parent and some other person, a court should not be concerned with attempting to maximize a child's welfare, but with determining whether the child will receive adequate care and love from its natural parent and whether the child will be otherwise unduly harmed, physically or psychologically, by giving custody to the natural parent."

Id. at 511, 748 P.2d 57. Applying that standard, the court concluded that the child's aunt had not presented sufficiently...