In some family law cases involving children, third parties may seek custody or visitation rights. Grandparents, stepparents, other family members, or even close family friends can receive custody of or visitation in cases where the children are either not receiving the necessary care from their parents or the parents are denying the third party contact with the children. Family lawyer and mediator Laura Schantz discusses what rights third parties can expect to have and what steps need to be taken to claim them.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Laura Schantz, Family Lawyer & Mediator
For more than 20 years, Laura Schantz – a Beaverton divorce and family lawyer and mediator – has helped clients find creative solutions to complex financial matters involving asset division, spousal support, and child support. She also provides family law mediation to resolve sensitive issues regarding parenting time, child custody, premarital agreements, modification of divorce agreements, and same-sex marriage and divorce. To learn more about her firm, Schantz Law, P.C., visit www.oregondivorceattorney.com.
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Read the Transcript of this Podcast Below.
Laura Schantz On Third-Party Child Custody & Visitation Rights
Diana Shepherd: Under what conditions will a judge grant a request for visitation with or even custody of a grandchild?
Laura Schantz: Usually, it happens when a a grandparent has been a big part of their grandchild’s life and the biological parent, for whatever reason, is now saying they don’t want the grandparent to see the grandchild. That’s one of the reasons why a grandparent would request visitation with or custody of their grandchild.
Aside from grandparents, are there other third parties who might have potential rights to custody or visitation with children?
Laura Schantz: There are sometimes brothers and sisters that are older; there are aunts and uncles, cousins, stepparents, things like that.
Does the third party always have to be an immediate family member such as a sibling, cousin, uncle, or aunt?
Laura Schantz: Stepparents often are the people that are asking for custody or parenting time rights, or it could even be a close family friend that’s been highly involved in raising the child.
When a grandparent or other third party wants to have custody or visitation rights, do they have to sue the child’s biological parents to obtain these rights?
Laura Schantz: Yes, they do if they want to have legal rights that are enforced, because there is an order that has been signed by a judge. The grandparent or third party would have to sue the children’s biological parents for these rights.
Some stepparents who are considering divorce want the legal right to stay in their stepchild’s life permanently. How do they accomplish this? Do they need to legally adopt their stepchild to be certain of getting some custody or visitation rights after divorce?
Laura Schantz: After divorce, it’s probably too late to legally adopt a stepchild. At that point in time, the biological parent is not going to be interested in having their spouse they’re divorcing adopt their child. However, there is still a possibility of having visitation rights with their stepchild or even custody rights if there is a serious issue with the biological parent and adoption would not be a part of that process.
Does an adoptive parent have the same rights to custody as a biological parent during or after divorce?
Laura Schantz: Yes, an adoptive parent is a legal parent and they have the same rights as the biological parent.
What are some of the pitfalls of warring with your own children or family for custody or visitation rights?
Laura Schantz: This is probably the most important question of all, because when I have family members come to me – grandparents, aunts, stepparents, I have had all of these types of cases and these type of clients – there is a big concern of continuing the relationship with the family member. The relationship with the family member is typically strained at the time that one of these third parties is trying to seek legal help to be able to see children, but when you file a lawsuit against a family member, the strained relationship is going to get even worse and potentially irrevocably severed. I always try to be very careful about making decisions to sue family members, and try to figure out if that is the only last resort, if it’s necessary, and if there are other ways to resolve the issues. I counsel the family members to make a careful decision about something that can potentially affect their family relationship for many, many years to come – if not permanently.
How easy or hard is it to get a court to award custody to a third party?
Laura Schantz: It’s very hard. There is a presumption in Oregon that the legal parent acts in the best interest of the child, and ever since the United States Supreme Court case Troxel v. Granville that was decided in June of 2000, the rights of biological parents or legal parents have been extremely strengthened and almost all the states had changed their laws as it refers to third-party rights. Oregon changed its laws and made it much more difficult for a third party to get custody or visitation rights, because the parent’s interest became stronger.
Do the courts try to award custody to one of the biological parents whenever possible, even if a third party is demonstrably more responsible and a better role model for the children?
Laura Schantz: Yes, they do. The biological parents have strong rights; they’re presumed to be acting in the best interest of the child – and actually it’s the legal parent, not necessarily the biological parent. A legal parent is the parent by adoption or biology. They’re exactly the same, but the legal parent has the right to act in the best interest of their child. Even if a third party is a much better so-called parent, the law really states that legal parent – as long as they’re a minimally adequate parent – is going to always have primary custody rights and rights to make decisions about who has visitation with their children.
What are the things that a third party would have to prove to obtain custody or visitation rights to children against one or even both parents’ objection?
Laura Schantz: I don’t want to make it sound like it is impossible, because I have been successful in many cases and obtaining these kind of rights for third parties in Oregon. It’s based on the Troxel v. Granville case, which is a US case, so every state is going to have statutes that are similar to the Oregon statute. But in that case, for custody, Oregon requires that the person who is requesting custody has recently been the child’s primary caretaker; prove that the legal parent is unwilling or unable to care adequately for the child; prove that the child would be psychologically, emotionally, or physically harmed if the third-party intervener is not granted custody or visitation; prove that the legal parent at one time fostered, encouraged, and consented to the relationship between the child and the third party; and prove that the legal parent had, in recent times, unreasonably denied or limited contact between the child and the third party.
Those are some of things that you have to prove to obtain either custody or visitation rights in Oregon.
If the biological parents have lost custody of their children to a third party because of an addiction, incarceration, mental illness, etc., what do they need to do to regain custody or at least visitation with their children?
Laura Schantz: It is very possible because courts are wanting legal parents to raise their own children if at all possible. If someone is now free of their addiction, has changed their life after being in prison or whatever their situation was, and gotten their act together so to speak, then that parent would petition the court to start having more access to their child – to have a bigger part in their child’s life – and then could continue to request relief in the future as things got better and better with that parent and the child to the point where it would make sense for the child to be returned to the parent’s custody.
At what age can a child choose to live with a third party rather than one of his or her parents?
Laura Schantz: Age 18, when the child is an adult; however, in practical terms, we’ve probably all known of teenagers who were living at their best friend’s house because they don’t get along with their parents or were living with an aunt, uncle, or other older sibling. It’s not necessarily legal, but their parent is allowing it to occur because they probably figure even if a court said, “You need to go home,” it’s pretty hard to make a teenager do that if the teenager is really not going to be willing to do that.
If both biological parents have lost custody of their children to a third party, does one or both of them have to pay child support to that third party?
Laura Schantz: They both need to pay child support to that third party.
In a situation where a teenager has moved in with their best friend but it is not a legal custody situation, can the parent in that household ask for child support?
Laura Schantz: If they haven’t gotten a court order, they could petition for legal custody and legally obtain child support, but unless they have that legal custody right, they are not going to receive child support. However, just as they are hanging out with a best friend by agreement, oftentimes the parent will voluntarily supply some cash to that family to help support their child.
If neither biological parent can afford to pay child support, can a third party who obtained custody sue the grandparents for support?
Laura Schantz: Absolutely not. It’s not the grandparent’s responsibility; it’s the parent’s responsibility. If they can’t afford to pay child support, they’re still going to have some minimum order of child support, and that will continue to accrue even if they don’t pay it. Someday, potentially, the third party would be able to collect that money if the parents’ circumstances ever got better.
Would this be true even if they could prove that the grandparents have been supporting their children and grandchildren all along?
Laura Schantz: That would still be true if the grandparents have been making these decisions to voluntarily provide money to their children and grandchildren. They still are not legally obligated to do that – that’s their own choice.
Is mediation or litigation the best way resolve child custody disputes involving third parties?
Laura Schantz: Considering how intense these family relationships are and how suing your child or other family members can have serious detrimental consequences to that relationship continuing, I would recommend any type of mediation first before trial, and litigation is an absolute last resort.