Marriage of Hruby, Matter of

• Decision Date: 22 December 1987
• Citation: 304 Or. 500,748 P.2d 57
• Parties: , 56 USLW 2423 Matter of MARRIAGE OF Kevin Allen HRUBY, Petitioner, and Susan Renee Hruby, Respondent, Marlene FRANK, Petitioner on Review, v. Kevin Allen HRUBY, Respondent on Review. TC D8111-68418; CA A38815; SC S33934.
• Court: Oregon Supreme Court

Page 57

748 P.2d 57

304 Or. 500, 56 USLW 2423

Matter of MARRIAGE OF Kevin Allen HRUBY, Petitioner and Susan Renee Hruby, Respondent Marlene FRANK, Petitioner on Review, v. Kevin Allen HRUBY, Respondent on Review.

TC D8111-68418; CA A38815; SC S33934.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 2, 1987.

Decided Dec. 22, 1987.

Elizabeth Welch, Portland, argued the cause for petitioner on review. With her on the petition were Robin E. Pope and Welch and Koch, Portland.

Brad Benziger, Portland, argued the cause for respondent on review. With him on the response brief was Benziger & Karmel, Portland.

LENT, Justice.

ORS 109.119 allows "[a]ny person * * * who has established emotional ties creating a child-parent relationship with a child" to intervene in, or to initiate, proceedings to determine child custody and related matters. The issue is whether natural parents have rights to the custody of their children that are superior to the custodial rights, if any, of persons satisfying the requirements of ORS 109.119 and, in particular, whether ORS 109.119 itself grants persons satisfying its requirements substantive custodial rights. ¹ We hold that ORS 109.119 does not grant substantive custodial rights and that a court must give custody of children to their natural parents unless there are compelling reasons for giving custody to another party.

In a marriage dissolution proceeding between the father and mother of the child whose custody is at issue in this case, the circuit court had "decreed" that the father was to have custody of the infant child subject to right of visitation by the mother. The mother had stipulated to that "decree." The mother does not now seek custody of the child and is not a party to the present proceeding.

About three and one-half years after the "decree," the father's sister (the child's aunt), who had had physical custody of the child by agreement of the father and the aunt since the time of "decree," intervened in the dissolution proceeding pursuant to ORS 109.119. Following a hearing, the circuit court, which did not find either the aunt or the father unfit to care for the child, gave custody of the child to the father, stating that a primary reason for the decision was that of natural parentage. The Court of Appeals affirmed. Hruby and Hruby, 84 Or.App. 448, 734 P.2d 378 (1987). Because the record in this case does not reflect any compelling reason for denying custody of the child to the father, we affirm the decision of the Court of Appeals and the judgment of the circuit court.

I.

The child was born in July 1981 in Bremerton, Washington, where the father was stationed while serving in the United States Navy. Two months after the child's birth, the father and the mother separated. Because neither parent was then able to care for the child, the father placed the child with his sister, the intervenor in this proceeding, who lived in Portland with her husband and two teenage daughters.

The father initiated this dissolution proceeding soon after the separation, and, in 1982, the circuit court "decreed" the marriage dissolved and gave custody of the child to him. Nevertheless, the aunt continued to care for the child in her home because the father remained in the Navy, stationed in Bremerton, Portland and, finally, San Diego, California. The father, however, visited the child frequently and regularly paid the aunt for the child's support. As the child grew older, the child developed an emotional attachment to him and came to recognize him as its father, although the child had also developed a child-parent relationship with the aunt and uncle. The mother, in contrast, ceased to visit the child or to have any other significant contact with the child soon after the "decree" of dissolution. The child does not now know her to be its mother.

In June 1985, the father remarried and sought to regain physical custody of the child from the aunt, but she was reluctant to transfer the child to him. The father, with police assistance, then took the child to his home in San Diego, where he lived with his wife, their infant daughter and the wife's son from a former relationship. The aunt soon thereafter intervened in the original dissolution proceeding pursuant to ORS 109.119, obtained a court order for temporary custody of the child and regained the child's physical custody several weeks later.

At a two-day hearing before a reference judge in November 1985, the father and the aunt presented a great volume of testimony, both expert and lay, concerning their abilities to care for the child and the strength of their relationships with the child. ² The reference judge concluded that both the father and the aunt had developed close relationships with the child and that both were capable of properly caring for the child. The judge did express some concern for the then four-year-old child's ability to adjust to a move from the only home the child had known since infancy, but he nonetheless gave custody to the father, explaining the decision as follows:

"It still boils down to this, that that is dad, that will always be dad, he has a right to the custody of his child. But * * * there are some legitimate concerns about the best interests of the child at the present time. And my order is going to be this, * * *, that [the child will] remain where [the child] is at the present time [with the aunt], but with the order of the Court * * * that within the next 10-month period of time, that [the child] be assimilated back in the home of the father through appropriate visitations, through appropriate time placements so that when all is said and done, [the child] has a continuing relationship with [the aunt and uncle, whom the child] knows as mom and uncle or dad."

The reference judge stayed the transfer of custody to the father pending appeal.

On appeal, the aunt argued that the reference judge had erred in according a custodial preference to the natural parent rather than basing his decision solely on "the best interests of the child." Limiting consideration to "the best interests of the child" was said by her to be required both by case law and by ORS 109.119, which the aunt argued eliminated any custodial preference in favor of natural parents over an intervenor or petitioner who had satisfied the requirements of ORS 109.119.

The Court of Appeals rejected these arguments and affirmed the judgment of the circuit court:

"[ORS 109.119] merely allows a third party non-parent to initiate or appear in a proceeding to determine custody. ORS 109.119(3) and (4) relate to establishing the petitioner's right to petition or intervene. Once that has been established, the court must then decide the custody issue in the best interests of the child and may give preference to a natural parent over an intervenor.

"The trial court heard considerable evidence from the parties, from lay witnesses and from expert witnesses. It concluded that father should have custody and gave considerable weight to the biological fact of parentage. We agree with that decision."

84 Or.App. at 450-51, 734 P.2d 378. We allowed the aunt's petition for review.

Before discussing the effect of the legislature's enactment of ORS 109.119 on child custody disputes between natural parents and intervenors or petitioners under that statute, we first review this court's prior decisions regarding the standard to be applied in deciding child custody disputes between natural parents and other persons.

II.

When Oregon's provisional, territorial and state governments adopted "the principles of common law and equity" in the mid-nineteenth century, see Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 547 n. 4, 652 P.2d 318 (1982); Or.Const. Art. XVIII, § 7, the "principle" governing child custody determinations was:

"[A] father has the paramount right to the care and custody of his minor children, unless it be shown that he is a man of grossly immoral principles or habits, or that he has not the ability to provide for them, or that they have been ill-used by him."

Jackson v. Jackson, 8 Or. 402, 403 (1880); see also 2 Kent, Commentaries on American Law * 205 (10th ed. 1860). Soon after statehood, Oregon by statute extended this custodial right of fathers to mothers as well, thereby creating a parental custodial right. ³ Or.Laws 1880, p. 7, § 2 (now codified in slightly reworded form as O RS 109.030); see also Jackson v. Jackson, supra; General Laws of Oregon, ch. 5, § 497(1), pp. 271-72 (Civ.Code 1862) (Deady 1845-64).

The common-law right of a father to the custody of his children is of ancient origin and can be traced back to Roman law and beyond, whereas the qualifications upon that right, such as those noted in the quote above, arose more recently out of the decisions of eighteenth and early nineteenth century equity courts. See McGough & Shindell, Coming of Age: The Best Interests of the Child Standard in Parent-Third Party Custody Disputes, 27 Emory L.J. 209, 217-21 (1978). The equity courts justified the development and application of these qualifications as an exercise of the "parens patriae power" of the sovereign to look after the interests of minors and others unable to care for themselves. Id.; Rossman, Parens Patriae, 4 Or.L.Rev. 233, 236 (1925). Courts and commentators in both England and the United States usually were careful to stress that the custodial right of a father was nothing so crass as a property right, and nothing so absolute as the Roman patria potestas, but was analogous to the right of a trustee, with children as the res of the trust. See 2 Kent, supra, at * 203; Rossman, supra, at 236.

In child custody disputes between natural parents and other private parties, this court early resolved the tension between the custodial rights of natural parents and the parens patriae power of the state by applying some variant formulation of the rule that a natural parent was entitled to the custody of...