Rennie and Rennie

Under ORS 109.119, if a third party seeks "custody, guardianship, right of visitation or other right," the court must determine whether the presumption has been rebutted according to the type of relief sought and the parties’ present circumstances.

Father appeals a judgment granting custody of his two sons to their maternal grandmother, arguing that the trial court erred by not requiring the grandmother to rebut the statutory presumption in ORS 109.119(2)(a) that the legal parent acts in the children’s best interests before awarding custody to a third party. Under ORS 109.119, if a third party seeks "custody, guardianship, right of visitation or other right," the court must determine whether the presumption has been rebutted according to the type of relief sought and the parties’ present circumstances. The Court found that the statutory exception for modifications only applies to modifications of orders granting the particular relief sought. The prior order granted springing visitation but had denied custody; thus, the grandmother’s new request for custody was not a modification of an order granting custody. The Court reasoned that the legislative scheme requires the court to apply the presumption anew whenever a third party seeks to obtain for the first time a type of relief that was previously denied. The kind of relief and the present circumstances are central. The Court held that the trial court erred by failing to require the grandmother to rebut the statutory presumption that the father acts in the children's best interests when she sought custody. Vacated and remanded the award of legal custody; otherwise affirmed.