ORS 109.119: Oregon Third-Party Custody and Visitation Rights

Under ORS 109.119, a non-parent in Oregon can petition for third-party custody or visitation of a child by proving one of two types of relationship with that child and then overcoming the legal presumption that the child’s parent is acting in the child’s best interest. Whether you can ask for custody or only for visitation depends on which relationship you can prove, and the evidence you’ll need to beat the parental presumption depends on it too.

Who Can File

The statute is written broadly. Grandparents, stepparents, foster parents (related or not), and relatives by blood or marriage are named specifically, but the law also reaches “any person” who has formed the required emotional ties with a child.¹ A long-term partner of a parent, a close family friend who helped raise the child, or an aunt who served as the primary caretaker could all potentially qualify.

You file in the court that already has jurisdiction over the child’s custody, placement, or guardianship. If no such case exists, you file in the circuit court for the county where the child lives, or you can move to intervene in an existing custody case rather than starting a new one.¹

One important limit: ORS 109.119 does not apply to juvenile dependency proceedings under ORS chapter 419B, which are the child-welfare cases the state brings.² If the child is in a dependency case, this statute is not your route.

The Two Relationships, and What Each One Gets You

Before anything else, figure out which category you fall into. This single choice controls both the relief you can request and how hard your case will be.

Child-Parent Relationship

A child-parent relationship exists when you lived with the child or had physical custody and provided day-to-day care meeting both physical and psychological needs. The statute specifically requires that you supplied food, clothing, shelter, education, and discipline, with ongoing interaction and companionship fulfilling the child’s need for a parental figure.¹

The timing requirement is strict. The relationship must have existed “in whole or in part” within the six months before filing.² The relationship doesn’t need to have lasted a full six months, but it needs to have been active at some point during that six-month window. A grandparent who housed and cared for a grandchild for three months, with the last month inside the six-month window, could potentially qualify. If you stopped contact eight months ago, you’ve likely lost standing.

Non-related foster parents face an extra threshold: their time with the child does not count as a child-parent relationship unless it lasted more than 12 months.² Related foster parents, stepparents, and other non-parents don’t have that minimum.

Establishing a child-parent relationship opens the widest range of relief. You can seek custody, guardianship, visitation, or other rights.

Ongoing Personal Relationship

An ongoing personal relationship requires “substantial continuity for at least one year, through interaction, companionship, interplay, and mutuality.”² This covers people who kept a meaningful bond with a child without taking on full parental caregiving — a grandparent with regular weekend visits, school involvement, and sustained contact for more than a year, for example.

The relief is narrower. If you can only show an ongoing personal relationship, you may request visitation or contact rights. You cannot seek custody or guardianship.¹

Beating the Parental Presumption

Every ORS 109.119 case starts from the same baseline. Oregon presumes the legal parent acts in the child’s best interest.¹ You carry the burden of rebutting that presumption, and the standard depends on which relationship you proved:

With a child-parent relationship, you rebut the presumption by a preponderance of the evidence — more likely than not that the parent is not acting in the child’s best interest.
With an ongoing personal relationship, you rebut it by clear and convincing evidence — a significantly higher bar requiring that it be highly probable the parent is not acting in the child’s interest.¹

Even after you overcome the presumption, the court still must find that granting the relief you’ve asked for is in the child’s best interest.

What Courts Weigh

The statute spells out factors judges may consider. The lists differ depending on whether you’re asking for visitation or for custody.

For Visitation or Contact

The court may consider:²

Whether you are or recently were the child’s primary caretaker.
Whether circumstances harmful to the child would arise if no visitation is ordered.
Whether the legal parent fostered, encouraged, or consented to the relationship.
Whether granting visitation would avoid substantially interfering with the parent-child relationship.
Whether the legal parent has unreasonably denied or limited the child’s contact with you.

For Custody or Guardianship

The custody list overlaps but adds one factor and drops another:²

Whether the legal parent is unable or unwilling to care adequately for the child.
Whether you are or recently were the primary caretaker.
Whether harmful circumstances would arise for the child.
Whether the parent fostered, encouraged, or consented to the relationship.
Whether the parent has unreasonably denied or limited contact.

The lists are not exhaustive. The statute says “including, but not limited to,” so a judge can weigh other circumstances relevant to the child’s welfare.³

Proving Detriment

The “harmful circumstances” factor is where many cases turn. Arguing that you’d provide a better home or more stability is not enough. You need evidence tying the child’s well-being specifically to the relationship with you, and showing that cutting that connection would cause identifiable harm. The strongest evidence usually includes testimony from therapists or school counselors who observed changes in the child after the relationship was disrupted, school records showing declining performance, medical records documenting anxiety or depression, and testimony from teachers or family members who saw the child react to separation. A professional psychological evaluation can be particularly persuasive.

Filing the Petition

You file your petition and supporting documents with the circuit court in the county where the child lives (or in whatever court already has jurisdiction over the child’s custody). As of January 2026, the filing fee for a custody proceeding is $301.⁴ If you can’t afford the fee, you can apply for a deferral or a full waiver.⁵ The Oregon Judicial Department offers standardized forms through its Guide & File system.⁶

The UCCJEA Affidavit

Oregon follows the Uniform Child Custody Jurisdiction and Enforcement Act, so every party in a custody case must file a sworn affidavit with their first pleading. Under ORS 109.767, that statement must include:⁷

The child’s current address and every place the child has lived during the past five years, with the names and addresses of the people the child lived with.
Any other custody proceedings involving the child in which the party took part in any role, including court name, case number, and any custody determination entered.
Any related proceeding you know about that could affect the current case — domestic violence, protective order, termination, or adoption.
Any non-party who has physical custody of the child or who claims custody, parenting time, or visitation rights, by name and address.

The five-year address history exists so the court can confirm Oregon is the child’s “home state” and that no other state has a competing claim. Gaps or errors here can delay the case or cost you jurisdiction.

Service

After filing, you must arrange service of process. A sheriff or private process server delivers copies to every legal parent and other required party. The respondent generally has 30 days after service to file a written response.

Mediation Orientation

Oregon requires parties in custody, parenting time, and visitation cases to attend a mediation orientation before the court will decide those issues.⁸ This is an orientation session, not full mediation, and many counties offer it at low or no cost.

There are exceptions. The requirement does not apply to emergency custody proceedings or status quo order requests, and a court can waive it for “good cause,” including situations where mediation would force a domestic violence victim into close proximity with their abuser.⁸ If an exemption applies, raise it with the court early. Skipping orientation without a waiver will stall your case.

Protecting the Child While the Case Is Pending

Custody litigation takes months. Two kinds of temporary orders can protect the child in the meantime.

Status Quo Orders

A status quo order freezes the child’s living arrangement and schedule as they existed during the three months before the motion was filed. It doesn’t award custody, parenting time, or support. It just stops either side from unilaterally changing the child’s routine.⁹ You request one through an ex parte motion with a declaration describing where the children have been living. The order takes effect once a judge signs it, but it’s not enforceable until you serve the other party and notify the court.

If the child’s living situation changed during the three months before filing, a status quo order may not be appropriate, and the court packet itself advises talking to a lawyer in that scenario.⁹

Emergency Custody Orders

When a child faces immediate danger (credible threats of abuse, caregiver incapacitation from substance use, abandonment, or similar crises), a court can issue a temporary emergency custody order without advance notice to the other side. You submit sworn statements describing specific, recent facts showing serious harm if the court waits. The relief is narrow and short, lasting only until a full hearing can be held with everyone present.

Appointment of an Attorney for the Child

In contested cases the court can appoint an attorney for the child, either on its own or at a party’s request. If the child asks for an attorney, the court must appoint one.¹⁰ The child’s attorney presents the child’s perspective to the judge, which can include interviewing the child, reviewing school and medical records, and making recommendations. The court may charge that attorney’s cost to one or both parties, or treat it as a cost of the proceeding.

Modifying the Order Later

Orders entered under ORS 109.119 are not necessarily permanent. Either side can seek modification when circumstances change. There is one important shift at this stage: the parental presumption that applied in the original case does not apply to a modification of an existing order.² The analysis focuses on the child’s current best interests rather than making the non-parent clear the presumption again.

Stepparents are specifically allowed to file for post-judgment modification of custody judgments.² That matters when a stepparent was granted visitation during a divorce and the arrangement later needs to be adjusted.

Two Situations That Change the Rules

Native American Children

If the child is or may be a member of a federally recognized Indian Tribe, the Indian Child Welfare Act imposes extra notice requirements for involuntary foster care placements and termination of parental rights proceedings. Notice must go by registered or certified mail to the parents, any Indian custodian, the tribal ICWA agent, and the appropriate Bureau of Indian Affairs regional director.¹¹ ICWA notice is not required for custody awards in divorce proceedings, but a third-party petition under ORS 109.119 that would remove a child from a parent’s custody can trigger these requirements depending on the facts. If there’s any question about tribal membership, raise it with the court early.

Military Parents

If the legal parent is on active military duty, the Servicemembers Civil Relief Act may require the court to pause the case. A servicemember who receives notice of a custody proceeding can request a stay of at least 90 days by submitting a statement explaining why they cannot appear, a projected availability date, and a letter from their commanding officer confirming that military duty prevents attendance and leave is not authorized.¹² Filing against a deployed parent without accounting for the SCRA can result in any order being set aside later.

1
Oregon State Legislature. Oregon Code 109.119 – Rights of Person Who Establishes Emotional Ties Creating Child-Parent Relationship or Ongoing Personal Relationship
2
OregonLaws. ORS 109.119 – Rights of Person Who Establishes Emotional Ties Creating Child-Parent Relationship or Ongoing Personal Relationship
3
Oregon Judicial Department. Grandparents and Psychological Parents Rights and Remedies
4
Oregon Judicial Department. 2026 Circuit Court Fee Schedule
5
Oregon Judicial Department. Fees
6
Oregon Judicial Department. OJD Guide and File
7
Oregon State Legislature. Oregon Revised Statutes Domestic Relations 109.767
8
OregonLaws. ORS 107.755 – Court-Ordered Mediation
9
Oregon Judicial Department. Instructions – Status Quo – Pre-Judgment
10
Oregon State Legislature. Oregon Revised Statutes 107.425 – Investigation of Parties and Children
11
Indian Affairs. ICWA Notice
12
USAFE.af.mil. Child Custody Protections Afforded to Servicemembers Under the Servicemembers Civil Relief Act