365 P.3d 1089
Or. Ct. App.2015Background
- Mother had multiple marriages to Southard and Larkins; three children at issue (H, S, AR) were born during those relationships.
- AR was listed on the birth certificate as Southard’s child after mother told hospital staff she was married to Southard; DNA later showed Larkins was AR’s biological father.
- The dissolution court awarded custody of H, S, and AR to Southard; later paternity proceedings established Larkins as AR’s biological father but did not alter the dissolution custody order.
- Southard petitioned under ORS 109.119 seeking custody of AR as a "psychological parent;" mother moved to modify custody based on the paternity determination.
- The trial court found a child‑parent relationship between Southard and AR, concluded mother’s presumption as legal parent was rebutted, and awarded custody to Southard; mother appealed.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Southard) | Held |
|---|---|---|---|
| Whether Southard established a child‑parent relationship under ORS 109.119(10)(a) | Southard’s prior custody was "unlawful" because mother’s marriage to him was void, so he cannot meet the six‑month relationship requirement | Prior custody derived from marriage and dissolution order, not unlawful interference; relationship existed within six months | Trial court properly found a child‑parent relationship; sufficient evidence and no legal error |
| Whether mother’s presumption of acting in child’s best interest was rebutted (ORS 109.119(2)(a)) | Mother cared adequately for AR; Southard called her a reasonable parent | Southard shown as primary caretaker, mother fostered the father role, interfered with contact, and maintained harmful ties with Larkins | By preponderance, presumption rebutted based on factors including detrimental circumstances, fostering relationship, and interference |
| Whether awarding custody to Southard is in AR’s best interest | Mother argued custody should change due to paternity findings and to keep siblings together | Southard argued continuity, bond, and risk of harm if AR placed with mother support custody | Trial court’s best‑interest decision affirmed as within permissible discretion |
| Procedural challenge to judge and motion to modify custody of all children | Mother argued prior judge lacked authority or was biased and that AR’s paternity change required modifying all children’s custody | Court and Southard relied on prior rulings and lack of new jurisdictional error | Appellate court rejected procedural challenge; earlier holdings foreclosed those arguments |
Key Cases Cited
- O’Donnell‑Lamont v. Lamont, 337 Or 86 (2004) (sets standard that rebutting the legal parent's presumption turns on whether evidence overcomes it, not on proving specific statutory factors)
- Kleinsasser v. Lopes, 265 Or App 195 (2014) (discusses review standards and application of ORS 109.119 factors in nonparent custody disputes)
- Southard and Larkins, 275 Or App 89 (2015) (prior appeal resolving challenges to dissolution and custody that bear on later ORS 109.119 proceedings)
- Sjomeling v. Lasser, 251 Or App 172 (2012) (addresses appellate review of discretionary custody determinations)
- Dept. of Human Services v. M. E., 255 Or App 296 (2013) (discusses circumstances warranting de novo appellate review)