Stepparents’ Rights Upon Divorce

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November 24, 2010

For many years, stepparents suffered from near non-recognition in the eyes of the law. A non-adoptive stepparent facing divorce had no legal right to maintain their relationship with their stepchild post-judgment, at least not without the goodwill of the legal parent (perhaps a scarcity in the midst of divorce). In many states, that is still the law today, despite a rise in second and third marriages.

In Oregon, however, the law recognizes a non-adoptive stepparent’s right to continue their relationships with their stepchildren irrespective of subsequent divorce. Oregon Revised Statute 109.119(5) gives stepparents in the midst of a divorce proceeding the power to petition the court for custody or visitation rights with their stepchildren. The statute even allows stepparents to file post-judgment modifications for child custody.

To exercise the right, stepparents must demonstrate a “child-parent relationship.” A “child-parent relationship” is a relationship within the preceding six months in which the stepparent has had physical custody of the child (or resided in the same household) and also provided necessities such as food and shelter on a day-to-day basis. Stepparents seeking only visitation rights (not custody) can petition the court through ORS 109.119(1) and need only demonstrate that they enjoy an “on-going relationship” with the child.

The catch is that the court applies a so-called “rebuttable presumption” that the legal parent “acts in the best interests of the child.” This means that the legal parent can cut all ties between the child and the stepparent and the court will assume that such action is in the child’s best interest. To rebut the presumption, the stepparent must show, by at least a preponderance of the evidence, that the legal parent is not acting in the child’s best interest. Examples of successful rebuttals typically involve legal parents who are incapable parents and/or have cut ties between the stepparent and child out of spite or selfishness.

So while Oregonian stepparents in the midst of divorce still face an uphill battle in maintaining their parental rights, they at least have the ability to make their case. It may not be much, but it’s better than nothing — and much better than most states.