Pulley v. Herndon

ORS 109.119 “focuses on whether present circumstances cause present detriment to the child,” and the circumstances must “pose a serious present risk of psychological, emotional, or physical harm.” O’Donnell-Lamont and Lamont, 337 Or 86, 112-13, 91 P3d 721 (2004), cert den, 543 US 1050 (2005).

Herndon appealed the trial court’s grant of ORS 109.119 petition for visitation to Grandmother. After Pulley threatened to kill himself and his child during a visitation, the child’s mother, Herndon, received custody and Pulley was granted supervised visitation. Pulley’s mother (Grandmother) was also granted visitation, but when she allowed Pulley to see the child without supervisors, Herndon limited contact.  The trial court granted Grandmother’s petition, finding that Grandmother had rebutted the presumption that Herndon was acting in the child’s best interest. Herndon argued that the presumption was not rebutted and Grandmother had not presented clear and convincing evidence of detriment to the child if visitation was denied. The Court reviewed the case de novo, finding that it qualified as an “exceptional case” under ORAP 5.40(8)(c). ORS 109.119 “focuses on whether present circumstances cause present detriment to the child,” and the circumstances must “pose a serious present risk of psychological, emotional, or physical harm.” O’Donnell-Lamont and Lamont, 337 Or 86, 112-13, 91 P3d 721 (2004), cert den, 543 US 1050 (2005). The Court held that the trial court’s findings that Herndon was selfish or that the child may later feel traumatized did not rebut the presumption that Herndon acted in the child’s best interest, and was insufficient to show that present circumstances posed a risk of serious harm to the child. REVERSED AND REMANDED.