Kleinsasser and Lopes

Pursuant to ORS 109.119, the Court "shall grant custody" to a third party who establishes a child-parent relationship, "if to do so is in the best interest of the child."

Biological mother appealed a judgment that awarded child custody to the child’s stepmother after the death of the child’s biological father. At the time of custody proceedings, the child was seven years old and had lived with his biological father and stepmother for four years. The trial court found and both parties stipulated below, that stepmother had a child-parent relationship with the child, which established her right to seek custody. The trial court held that pursuant to ORS 109.119(a)(2), stepmother had rebutted the presumption that mother, “acts in the best interest of the child.” On appeal, the Court held stepmother rebutted the presumption that the legal parent acts in the best interest of the child by a preponderance of the evidence. The Court considered the five nonexclusive factors as a whole to determine that stepmother rebutted the statutory presumption. Affirmed.