Kennison v. Dyke

Under ORS 109.119(3)(b), before granting visitation rights to a person who has an ongoing personal relationship with a child, a court is required to determine whether that person rebutted, by clear and convincing evidence, the statutory presumption found in ORS 109.119(2)(a) that the child’s guardian acted in the best interest of the child in initially denying visitation rights to that person.

Mother appealed a trial court judgment granting Grandmother’s petition for visitation with Mother’s child. Mother is the child’s sole legal and custodial guardian; Grandmother is the child’s paternal grandmother. When the child turned three, Mother disallowed Grandmother’s visits due to Grandmother’s concerning behavior. A series of fragmented counseling sessions attended by Mother and Grandmother did not solve the issue, leading Grandmother to file a petition for visitation rights. On appeal, Mother argued the trial court erred in failing to determine that Grandmother rebutted the statutory presumption that Mother acted in the best interest of the child when she disallowed Grandmother’s visits, contending the trial court was required to make that determination before deciding whether to grant visitation. Grandmother responded that the trial court’s findings were sufficient to support its conclusion that the presumption was rebutted. Under ORS 109.119(3)(b), before granting visitation rights to a person who has an ongoing personal relationship with a child, a court is required to determine whether that person rebutted, by clear and convincing evidence, the statutory presumption found in ORS 109.119(2)(a) that the child’s guardian acted in the best interest of the child in initially denying visitation rights to that person. Because there was no clear indication of a determination that Grandmother rebutted the statutory presumption in the trial court’s written findings, general judgment, or oral ruling, the Court held the trial court erred in granting visitation without making the requisite findings under ORS 109.119(3)(b) and (2)(a). Vacated and remanded.