MATTER OF MARRIAGE OF SLEEPER
Decision Date | 20 May 1999 |
Citation | 328 Or. 504,982 P.2d 1126 |
Court | Oregon Supreme Court |
Parties | In the Matter of the MARRIAGE OF Royal Melvin SLEEPER, Respondent on Review, and Rose Mistyca Sleeper, nka Rose Mistyca Madris, Petitioner on Review. |
George W. Kelly, Eugene, argued the cause and filed the petition for petitioner on review.
Philip F. Schuster, II, of Dierking & Schuster, Portland, argued the cause and filed the brief on the merits for respondent on review.
Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, and KULONGOSKI, Justices.1
In this marital dissolution action, the circuit court awarded custody of the parties' two children to husband. Wife appealed, assigning error to that award of custody. She denied that husband was the biological father of the children and argued that, because the custody dispute involved a biological parent and a person who is not a biological parent, the "compelling reasons" standard announced in Hruby and Hruby, 304 Or. 500, 516, 748 P.2d 57 (1987), discussed infra, should be used in determining custody. Husband argued that the Hruby standard was not applicable, because wife was estopped from denying husband's paternity. In the alternative, husband argued that, given the child-parent relationship that he has with both children, ORS 109.119 confers on him substantive custodial rights as a stepparent and requires use of the "best interests of the child" standard, ORS 107.137, in determining custody.
The Court of Appeals agreed with husband that wife was estopped from denying husband's paternity. Accordingly, that court applied the "best interests of the child" standard and affirmed the circuit court's award of custody to father. Sleeper and Sleeper, 145 Or.App. 165, 929 P.2d 1028 (1997). As we explain infra, we affirm the decision of the Court of Appeals on other grounds and affirm the judgment of the circuit court.
The Court of Appeals reviewed this case de novo, as required by former ORS 19.125 (1995), renumbered as ORS 19.415 (1997). Pursuant to that statute, this court may review de novo or it may limit its review to questions of law. The facts relevant to the resolution of the issues before us are not in dispute, although their legal significance is. Accordingly, there is no reason to review de novo. See Denton and Denton, 326 Or. 236, 238, 951 P.2d 693 (1998) ( ). We therefore limit our review to questions of law. We take the following undisputed facts from the opinion of the Court of Appeals and from the record.
Husband had a vasectomy in 1977. Husband and wife married in 1980. Both parties worked outside the home until 1987, excluding a period of time in 1982 when wife did not work outside the home because she was recuperating from an accident. In 1987, husband suffered a heart attack and stopped working. Wife continued to work outside the home except for a brief period immediately after the birth of each of the two children.
Husband is not the biological father of either child. After failed attempts at artificial insemination, wife had a brief extra-marital relationship that produced a child in April 1989. About one year later, husband and wife separated. Wife went to California, leaving the child with husband. While in California, wife had another extra-marital relationship that produced a child in August 1991. Wife then returned from California, and the parties again began living together.
Husband was the primary caretaker of both children throughout the marriage. He provided for the physical and emotional needs of both children on a daily basis. Wife had only sporadic contact with the children. The Court of Appeals, on de novo review, found that husband "has established emotional ties creating a child-parent relationship with the minor children and is their psychological father having provided them with their physical and emotional needs on a daily basis since their birth." Sleeper, 145 Or.App. at 168, 929 P.2d 1028.
The parties continued to live together until August 1993, when wife left the family home. Husband petitioned for dissolution of the marriage and for custody of the children. The circuit court awarded husband temporary custody of both children. Later, the court awarded him permanent custody. Wife appealed, and the Court of Appeals affirmed. We allowed wife's petition for review.
ORS 109.119 provides, in part:
Husband argues that, although he is not a biological parent of either child, he is a stepparent with a child-parent relationship with those children. Husband further argues that ORS 109.119 governs child custody disputes between a biological parent and a stepparent having a child-parent relationship with the subject minor children. Resolution of the issues presented for decision in this case requires that we construe ORS 109.119.
859 P.2d 1143. Applying the foregoing principles, we conclude that the text and context of ORS 109.119 demonstrate clearly that the legislature intended that courts shall use the "best interests of the child" standard in determining custody of minor children in custody disputes between a biological parent and a stepparent with a child-parent relationship with the subject minor child.3
The threshold requirement for application of ORS 109.119 to a custody dispute is a child-parent relationship between a non-biological parent and the subject child. ORS 109.119(5). Without that child-parent relationship, the procedural and substantive rights conferred by the statute are not available to the non-biological parent. ORS 109.119(1)-(3). As noted, the Court of Appeals found that husband had established a child-parent relationship with the minor children and is their psychological father. Sleeper, 145 Or.App. at 168, 929 P.2d 1028. It follows that, under the statute, husband has the right to seek custody.
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