Holt and Atterbury

" A person who establishes emotional ties with a child that creates a child-parent relationship may petition or file for custody, intervene for placement or guardianship of the child. ORS 109.119(1). To decide if a presumption has been rebutted, the Court can look to, but not limited to, the following evidence: "the legal parent is unwilling or unable to care adequate for the child; the petition or intervenor is or recently has been the child's caretaker; circumstances detrimental to the child exist if relief is denied; the legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or the legal parent has unreasonably denied or limited contact between the child and the petition or intervenor." ORS 109.119(4)(b).

Mother appealed the trial court's judgment to award custody to her child's paternal grandparents and her parenting time plan. Mother assigned error to the trial court's finding that the grandparents had a child-parent relationship with her child and the grandparent's rebuttal that mother did act in the best interest of her child. Mother argued that the grandparents failed to prove that they had "'physical custody'" of her child or that the child '"resided in their same household' . . . on a 'day-to-day basis.'" A person who establishes emotional ties with a child that creates a child-parent relationship may petition or file for custody, intervene for placement or guardianship of the child. ORS 109.119(1). To decide if a presumption has been rebutted, the Court can look to, but not limited to, the following evidence: "the legal parent is unwilling or unable to care adequate for the child; the petition or intervenor is or recently has been the child's caretaker; circumstances detrimental to the child exist if relief is denied; the legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or the legal parent has unreasonably denied or limited contact between the child and the petition or intervenor." ORS 109.119(4)(b). Through testimony from grandparents, and their grandson, the Court held that the child resided with the grandparents for five to six days a week and the trial court did not error in determining there was a child-parent relationship and the child resided in their household on a day-to-day basis. The Court also held that, through testimony, the child was exposed to mental health and behavioral issues and could suffer psychological harm with the Mother and that the evidence supports the trial court's conclusion after applying those factors to determine the rebuttal to the presumption that the mother acts in the best interest of her child. Affirmed.