In re the Marriage of Hanson-Parmer

225 P.3d 129, 233 Or. App. 187, 2010 Ore. App. LEXIS 2
CourtCourt of Appeals of Oregon
DecidedJanuary 6, 2010
Docket050487; A133335
StatusPublished
Cited by3 cases

This text of 225 P.3d 129 (In re the Marriage of Hanson-Parmer) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Hanson-Parmer, 225 P.3d 129, 233 Or. App. 187, 2010 Ore. App. LEXIS 2 (Or. Ct. App. 2010).

Opinion

HASELTON, P. J.

Wife appeals a dissolution judgment, assigning error to the trial court’s determination that husband is the psychological parent of her youngest son, D, and is entitled to visitation with him pursuant to ORS 109.119(3)(a). On appeal, the dispositive legal issue is whether husband had a “child-parent relationship,” ORS 109.119(10)(a), with D that is a necessary statutory prerequisite to husband’s right to visitation in this case. Because we conclude that husband failed to establish that he had a child-parent relationship with D, we reverse, in part.

We review de novo. ORS 19.415(3) (2007);1 Wurtele v. Blevins, 192 Or App 131, 133, 84 P3d 225, rev den, 337 Or 555 (2004). The parties were married on August 17, 2001. They have three children, B, G, and C. During the marriage, wife’s youngest son, D, was born. As discussed in more detail below, husband is not D’s biological father. Husband and wife separated permanently in January 2005. Then, in March 2005, wife, who was pro se, filed a petition for dissolution of the parties’ marriage.

The early procedural history of this case was complicated, and an extensive discussion would not benefit the bench, the bar, or the public. It is sufficient to make the following two points: First, it is clear from the various documents filed by the parties that husband and wife have three children — that is, B, G, and C. Those same documents, however, contain ambiguous references concerning the relationship between husband and D — that is, some documents appear to indicate that D is husband’s child, while other documents appear to indicate that he is not. Second, in April 2005, the trial court issued a written decision concerning pretrial relief — which was reduced to a limited judgment in May — that awarded husband parenting time with all four children. Nonetheless, from the time of the parties’ separation in January 2005 until July 2005, wife did not allow husband to see the children.

[190]*190Ultimately, on July 15, 2005, by which point both parties had retained counsel, the trial court entered a second limited judgment for temporary custody, parenting time, and support. In that judgment, the trial court (1) awarded wife custody of the parties’ three children and D; (2) stated that “[D] is currently considered the legal child of [husband]”; (3) awarded husband parenting time with all four children from “9:00 a.m. every Tuesday until 8:00 p.m. on Wednesday beginning July 5, 2005”; and (4) ordering husband “to pay child support.” (Emphasis added.) Consistently with the award of parenting time in that judgment, husband began to see the children.

After entry of the limited judgment in July, the trial court allowed wife to amend her petition to add an allegation that her “youngest child, [D], is not the biological child of [husband]” and that she and “[husband] did not reside together at the time the child was conceived”; thus, “[t]he presumption of paternity has been rebutted.” Wife then requested that husband admit both that he was not D’s biological father and that he was not living with her when D was conceived.

Husband made those two admissions. Then, on December 7, 2005, after obtaining leave from the court, husband amended his response to wife’s petition for dissolution to include a counterclaim pursuant to ORS 109.119.2 Specifically, husband alleged that, “[a]s set forth in ORS 109.119, [he] has established a parent-child relationship or ongoing personal relationship with the minor child, [D]. It is in the best interests of the minor child, [D], that an order of custody and parenting time be granted between [him] and the child.”

During her closing argument at trial, wife’s attorney responded to husband’s claim under ORS 109.119 by asserting, in part, that,

[191]*191“[w]ith respect to [D], I think that the Court has to look at whether there was a parent/child relationship that was existing at the time that the petition was filed. That petition was filed at a time when in the last six months before that petition was filed, there was no parent/child relationship.”

Ultimately, the trial court entered a general judgment of dissolution. As pertinent, the trial court found that “[husband] is the psychological parent of [D] * * * who was born to [wife] during the marriage, but who is not the biological child of [husband].” The court also awarded wife sole legal custody of all four children but awarded husband parenting time with them. Wife appeals.

On appeal, wife raises three assignments of error concerning the trial court’s determination that husband was entitled to parenting time with D pursuant to ORS 109.119. Because it is dispositive, we address only her contention in her first assignment of error that the trial court erred in finding that husband had a child-parent relationship with D pursuant to ORS 109.119(10)(a) because husband did not satisfy the statutory requisites. According to wife,

“[a] third-party parent may only be granted visitation with a child under ORS 109.119 if he shows that he has established a child-parent or other ongoing personal relationship within the six months prior to filing or other ongoing personal relationship within one year prior to filing. Husband never had ‘physical custody’ of [D] nor resided ‘in the same household’ as [D], as required by the statute.”

In response, husband contends that he satisfied the statutory requirements of ORS 109.119(10)(a). According to husband,

“a parent-child relationship had been established with [D] for most of the six months prior to filing the amended response * * *. Husband provided necessary care, education, and discipline on a weekfly] visit basis through interaction, companionship, interplay, and mutuality, that fulfilled [D’s] psychological needs for a parent as well as [D’s] physical needs, as provided by ORS 109.119(10)(a). And * * * Husband also provided substantial amounts of money to [wife] for the physical needs of [D], child support ordered by the court as well as tax return money.”

[192]

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Related

In re Holt
420 P.3d 676 (Court of Appeals of Oregon, 2018)
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249 P.3d 988 (Court of Appeals of Oregon, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
225 P.3d 129, 233 Or. App. 187, 2010 Ore. App. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hanson-parmer-orctapp-2010.