In Re the Marriage of Winczewski

BREWER, J.,

dissenting.

Both the concurrence and dissent have eloquently staked out their respective positions in this case. I reluctantly wade into the fray for two reasons: (1) The opinions are so lengthy and complex that I fear they will further discourage a family law bench and bar that craves clarification in an already confusing and vexing area of the law; and (2) several legal principles are at play in this case, including the nature of the child’s interest in the preservation of a child-parent relationship with a nonparent, which I discuss in the hope that the Oregon Supreme Court will accept review of oúr decision and bring greater clarity to the relationship between ORS 109.119 (2001) and the United States Supreme Court’s decision in Troxel v. Granville, 530 US 57 , 120 S Ct 2054 , 147 L Ed 2d 49 (2000).

My first concern is fundamental: Troxel is not a poison pill decision that taints all state nonparent custody and parenting time statutes. Because the various opinions in Troxel prevented the Court from speaking with a clear and unified voice, its decision is subject to misinterpretation. However, certain core principles can be discerned. Although *748 all of the justices, except Justice Scalia, agreed with the state court that the visitation order directly burdened the parent’s “fundamental right” to raise her child free of undue governmental interference, 1 Justice Thomas alone called for application of the strict-scrutiny standard usually employed in the protection of fundamental rights. See id. at 80 (Thomas, J., concurring in the judgment). That omission was no oversight; the alternative approach taken by at least six justices amounted, in fact, to an implicit rejection of strict scrutiny. Instead, at least seven justices accepted the proposition that the constitution requires a presumption that a fit parent is best able to assess what is good for his or her child. 2 The same group also recognized that the presumption can be rebutted by a showing that the parent will not act in the child’s best interests. That approach ascribes primacy to parental prerogatives but only within limits. Determining whether those limits have been transgressed, in turn, inevitably requires consideration of the circumstances of the family—including the strength and quality of preexisting ties between the child and the nonparent contestant.

Most of the members of the Court in Troxel understood that the evolving diversification of family structures cautions against a rigid constitutional analysis. The plurality began its analysis by referring to the “changing realities of the American family,” id. at 64 (O’Connor, J., plurality opinion), noting that “[t]he demographic changes of the past century make it difficult to speak of an average American family,” id. at 63 . Justices Stevens and Kennedy made the point even more forcefully, and it led them to urge some qualification of parental rights. Id. at 98-99 (Kennedy, J., dissenting); accord, id. at 90 (Stevens, J., dissenting). Justice Kennedy, for example, stated that his “principal concern” with the Washington court’s strict scrutiny analysis was

*749 “that the holding seems to proceed from the assumption that the parent or parents who resist visitation have always been the child’s primary caregivers and that the third parties who seek visitation have no legitimate and established relationship with the child.”

Id. at 98 (Kennedy, J., dissenting). Justice Stevens, in turn, warned that

“[t]he almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent’s liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily.”

Id. at 90 (Stevens, J., dissenting).

The Court also appeared to recognize that child access cases have a greater potential than most other cases to present collisions of intersecting rights. Justice Stevens was the most direct in describing this as a potential clash of competing constitutional interests, id. at 88 (Stevens, J., dissenting), but Justice Kennedy, too, plainly thought that a parent’s prerogative must be balanced against the competing interests of other family members. See id. at 100-01 (Kennedy, J., dissenting).

The Court’s emphasis on changes in family structure, and the insistence of several justices that multiple constitutional rights are at stake in such cases, are inconsistent with the categorical analysis ordinarily associated with strict scrutiny.

“That doctrine entails an essentially categorical analysis. It asks, first, whether the state has intruded upon some conduct categorized as a ‘fundamental right’; and, if so, whether the public interest served is properly categorized as ‘compelling.’ There is only a little room to maneuver here—generally the precise gradations of intrusion or justification are beside the point. This, of course, is largely why strict-scrutiny cases are presumed to be won or lost at the threshold issue of categorization as a ‘fundamental right’ or a ‘suspect class,’ rather than in any subsequent balancing of state and individual interests.

*750 “Troxel, by contrast, plainly contemplates cases being won or lost later on in the analysis. Moreover, the outcome will depend not so much on a categorical assessment of the competing interests, as on fact finding into the nuances of particular family relationships or the manner in which a parent exercised her ‘fundamental right.’ In fact, rather than modern strict scrutiny, the Court’s approach seems more reminiscent of the mushy ‘reasonableness’ standard which the Court employed in its very first family-privacy cases during the Lochner era.”

David D. Meyer, Constitutional Pragmatism for a Changing American Family, 32 Rutgers LJ 711, 716 (2001) (footnote omitted).

When the competing rights of child and parent are pitted against each other, a balancing of interests is appropriate. That notion finds support in the Troxel test. As discussed, Troxel teaches that a court cannot award parenting time to a nonparent over the objection of a fit parent based solely on best interest considerations. Troxel, 530 US at 69 (O’Connor, J., plurality opinion). However, the presumption that must be applied before best interests are considered focuses solely on the parent’s ability to act in the child’s best interests. In other words, the presumption relates to the very factual determination that must be made if it is rebutted. Because, in a real sense, the Troxel presumption blends with the best interests test, there is a certain circularity to the Court’s analysis. That circularity leaves one to wonder whether there is less to the presumption than initially meets the eye. As one commentator has observed:

“The significance of Troxel lies in its subtlety, not in any rigid analysis of recognized and established constitutional law doctrine. The opinion marks an evolution in parental autonomy protection by what it pronounces as well as by what it avoids. By balancing the State’s interest in protecting the child with the parent’s interest in making child-rearing decisions free from unnecessary State interference, the Court no longer accords blind, unquestioning deference to the decisions of presumptively fit parents. Ideally, when courts decide to balance the competing interests equally, the child’s needs will be served and will prevail.”

*751 Sandra Martinez, The Misinterpretation of Troxel v. Granville: Construing the New Standard for Third-Party Visitation, 36 Fam LQ 487, 499 (2002). In sum, Troxel neither requires nor presages a strict scrutiny analysis of rights in nonparent custody and parenting time cases; instead, the deference to parental prerogative that it requires entails a balancing of distinct family interests.

Assuming for the sake of argument, however, that a strict scrutiny analysis does apply under ORS 109.119, an element of “harm” in the traditional sense is not the only compelling state interest at issue where the welfare of children is concerned. For example, the state’s compelling interest in requiring school attendance or restricting child labor does not derive exclusively from the state’s interest in preventing “harm”; instead, it stems from the state’s broader parens patriae interest in the well-being of children. See Prince v. Commonwealth of Massachusetts, 321 US 158, 166-67 , 64 S Ct 438 , 88 L Ed 645 (1944); Pierce v. Society of Sisters of Holy Names, 268 US 510, 534 , 45 S Ct 571 , 69 L Ed 1070 (1925). Thus, although the threat of physical harm to a child is certainly sufficient to provide the state with a compelling interest, such harm is not a sine qua non for the existence of a compelling state interest.

The Maine Supreme Court, which follows the view that a compelling state interest is required for the state to intervene in the context of Maine’s nonparent parenting time statute, has described the matter this way:

“The cessation of contact with a grandparent whom the child views as a parent may have a dramatic, and even traumatic, effect upon the child’s well-being. The State, therefore, has an urgent, or compelling, interest in providing a forum for those grandparents having such a ‘sufficient existing relationship’ with their grandchildren. Here the [grandparents] have acted as parents for their grandchildren, and therefore may seek continued access to those children. This interest springs not from any common law right of the grandparent to visitation with the child, but from the child’s significant need to be assured that he or she wdll not unnecessarily lose contact with a grandparent who has been a parent to that child. See Troxel, 530 US at _ , 120 *752 S Ct at 2071 (Stevens, J., dissenting) (‘There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies—the child.’).

“When a grandparent has been the ‘primary caregiver and custodian’ for a child over a significant period of time, the relationship between the child and the grandparent warrants application of the court’s parens patriae authority on behalf of the child and provides a compelling basis for the State’s intervention into an intact family with fit parents. Recently, this compelling interest has been recognized in several other contexts, based upon the reasoning that a parent’s fundamental liberty interest must be balanced against a ‘[child’s] interest in continuing to have access to the only adult who has acted as a parent to [the child].’ Youmans v. Ramos, 429 Mass 774, 711 NE2d 165, 172 (1999); see also V.C. v. M.J.B., 163 NJ 200, 748 A2d 539, 548-49 (2000) (holding that the State may intervene to grant visitation over the objections of a parent where the child’s psychological parent “has stepped in to assume the role of the legal parent who has been unable or unwilling to undertake the obligations of parenthood’); American Law Institute, Principles of the Law of Family Dissolution § 2.03 (Tentative Draft No. 4, 2000).

“Thus, the State has demonstrated that it has a compelling interest in providing a forum in which a grandparent, who has acted as a parent to the child at issue, may seek continuing contact with the child.”

Rideout v. Riendeau, 761 A2d 291, 301-02 (2000) (footnotes omitted). Thus, even those states that follow a strict scrutiny methodology in analyzing nonparent child access statutes acknowledge the existence of a child’s interest in the preservation and enjoyment of a child-parent relationship with a nonparent. I next consider the dimensions of that interest.

It is true, and sadly so, that for much of history children were treated by the legal system as little more than a form of chattel entirely within the . control of their biological parents. See generally, Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996); Viviana A. Zelizer, Pricing the Priceless Child, the Changing Social Value of Children (1985). However, more recently, numerous courts have held that disruption of a child’s preexisting relationship with a nonbiological parent *753 can potentially be harmful to the child and that such a relationship may be protected by the court over a fit parent’s objection. See In re Marriage of Howard, 661 NW2d 183, 191 (Iowa 2003) (“[W]hen a grandparent has established a substantial relationship with a grandchild, as required under our statute, an emotional bond can be created that, if severed, can inflict harm on the child”); see also Roth v. Weston, 259 Conn 202, 226, 789 A2d 431, 445 (2002) (“proof of a close and substantial relationship [with party seeking visitation] and significant harm should visitation be denied are, in effect, two sides of the same coin”); Skov v. Wicker, 272 Kan 240, 246-48, 32 P3d 1122, 1126-27 (2001) (to uphold constitutionality of grandparent visitation statute, court added requirement that grandparent prove existence of “a substantial relationship with the grandchildren”); Blixt v. Blixt, 437 Mass 649, 658, 774 NE2d 1052, 1060 (2002), cert den, _ US _, 154 L Ed 2d 1022 (2003) (same); Youmans , 429 Mass at 782-83 (concluding that judge could order visitation between child and maternal aunt who was child’s de facto parent after considering best interests of child).

Moreover, it is now firmly established that children are persons within the meaning of the constitution and accordingly possess constitutional rights. See Meldrum v. Novotny, 640 NW2d 460, 470 (SD 2002) (Konenkamp, J., concurring) (“Children are not property. They have rights of their own.”). The United States Supreme Court has held that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” In re Gault, 387 US 1, 13 , 87 S Ct 1428 , 18 L Ed 2d 527 (1967). Specifically, the Court has held that minors are entitled to constitutional protection for freedom of speech, equal protection against racial discrimination, due process in the civil context, and a variety of rights of defendants in criminal proceedings. See Carey v. Population Services International, 431 US 678 , 692 n 14, 97 S Ct 2010 , 52 L Ed 2d 675 (1977).

A legal commentator has described the effect of Troxel on children’s constitutional rights theory as follows:

“Before Troxel , it was abundantly clear that under the U.S. Constitution children possessed rights to equal protection, to due process, and to privacy in a wide variety of settings. *754 After Troxel , it appears that at least six of the justices would weigh children’s interest in protection of intimate relationships in the balance of constitutional rights.

“* * As the least powerful of groups and most vulnerable of persons, children are arguably most in need of rights. In a conceptual scheme in which adults have rights and children have mere interests, children’s interests too often are trumped by the more powerful notion of rights. Judges and legislatures are increasingly unwilling to view the rights of parents as paramount. * * * The Supreme Court has recognized children’s rights in many different settings, from juvenile justice to education. After Troxel , it seems clear that in a properly presented custody case, the Court can be expected to recognize children’s rights to due process, equal protection, and privacy in the context of custody as well. The challenge for scholars (and forjudges) is to acknowledge children’s rights in custody cases in a manner that does not treat them like small adults, that takes account of their essential difference, and that respects their complex needs for nurture, protection, identity, and connection.”

Barbara Bennett Woodhouse, Talking About Children’s Rights in Judicial Custody and Visitation Decision-Making, 36 Fam LQ 105, 113-14 (2002) (footnotes omitted).

In the wake of Troxel , courts are beginning to recognize that “a child has an independent, constitutionally guaranteed right to maintain contact with a person with whom the child has developed a parent-like relationship.” Webster v. Ryan, 189 Misc 2d 86 , 729 NYS2d 315, 316 (NY Fam Ct 2001) (addressing right to visitation). Specifically, the court held in Webster that the child’s right “is constitutionally guaranteed because it is a fundamental liberty encompassed within the freedom of association right of the First Amendment of the United States Constitution * * *. This liberty is protected by the Due Process Clause of the Fourteenth Amendment * * Id. at 316-17. For its reasoning, the court relied on First Amendment case law

“guaranteeing the freedom of speech and the right to peaceably assemble includes a freedom of individuals to associate in intimate, personal relationships. See [Griswold v. Connecticut], 381 US 479 , 85 S Ct 1678 , 14 L Ed 2d 510 (1965); [National Asso. for the A.C.P. v. Alabama], 357 US *755 449 , 78 S Ct 1163 , 2 L Ed 2d 1488 (1958). The First Amendment association rights have been found to be protected from intrusion by the State by virtue of the Due Process Clause of the Fourteenth Amendment. See [De Jonge v. State of Oregon], 299 US 353 , 57 S Ct 255 , 81 L Ed 278 (1937).”

Webster, 189 Misc 2d at 316 n 3. The court held that such a right must be balanced against the unquestionable fundamental right of the biological parent to raise the child without undue state interference.

Although not specifically relying on the First Amendment as the source of the child’s constitutional right, the California courts have followed a similar set of principles. In In re Santos Y., 92 Cal App 4th 1274, 1314-15 (2001), the court held:

“While the United States Supreme court has reserved the issue of deciding the nature of a child’s liberty interests in preserving established familial or family-Kke bonds (Michael H. v. Gerald D., 491 US 110, 130 , [ 109 S Ct 2333, 2345-2346 , 105 L Ed 2d 91 ] (1989)), our Supreme Court has declared that ‘[c]hildren .... have fundamental rights— including the fundamental right .... to “have a placement that is stable, [and] permanent.” ’ California recognizes that ‘[c]hildren are not simply chattels belonging to the parent, but have fundamental interests of their own’ .... and that these interests are of constitutional dimension. California case law [has] ‘[a]dopt[ed] the proposition that a child has a constitutional right to a reasonably directed early life, unmarred by unnecessary and excessive shifts in custody....’ ”

(Some internal citations omitted.)

An obstacle to the present enjoyment of a child’s constitutional right to the preservation of a child-parent relationship with a nonbiological parent lies in the child’s presumed inability to make a mature decision as to which relationships are most important to the advancement of her or his welfare. In that regard, some theorists posit that children have the same constitutional rights that adults have, subject only to the proviso that, depending on the nature of the right in question, its enjoyment lawfully may be deferred *756 until a certain age has been attained. According to that theory:

“At least part of the strongest philosophy of government that could justify the classification of children as persons is the moral principle of individual autonomy, which I understand to be the right of a person to govern himself, to be free from any external control to which he has not consented. If this principle is part of the moral justification of our Constitution, then it becomes clear why we should include children under its provisions. Young children do not have the competence to make many of the choices that adults make on a regular basis in complex social systems, but they will in a few years develop many of these competencies. Hence, the right to be treated as a person is best understood as a right-in-trust. Once we acknowledge this, it becomes legitimate for children to complain if they are not provided with opportunities and conditions assuring their full enjoyment of their constitutional rights when they acquire the characteristics of persons. Moreover, the classification of children as persons as a right-in-trust is not only consistent with their being regarded as individuals in custody during their minority, but it defines the limits of our custodial duties. We must provide them ‘the conditions for their becoming individuals who are able freely and in an informed way to choose and who are prepared themselves to assume responsibility for their choices.’ And we must refrain from denying children the enjoyment of their rights if we cannot show that this is necessary to protect their future autonomy. Only in this way can we legitimately discharge our custodial duties toward children as persons.”

Lawrence D. Houlgate, Three Concepts of Children’s Constitutional Rights: Reflections on the Enjoyment Theory, 1 U Pa J Const L 77, 93-94 (1999) (footnotes omitted).

At bottom, the notion of a child’s constitutional right to the preservation and enjoyment of a child-parent relationship with a nonbiological parent is both evolving and complex. In one respect, that right mirrors an adult’s right to maintain valuable associations, which is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. To the extent that that right is limited, it is because of the presumptive prerogative of a fit parent to make decisions involving care and custody on behalf of his or *757 her minor child. That limitation is embodied in Houlgate’s enjoyment theory of children’s constitutional rights. In a second respect, the state, acting through the courts, must safeguard the child from harm in the traditional sense, a role that implicates the child’s right to protection. Parham v. J. R., 442 US 584, 603 , 99 S Ct 2493 , 61 L Ed 2d 101 (1979). That interest also can be cast in substantive due process terms as involving a fundamental liberty interest, but there is no plausible argument for deferring its enjoyment until majority. In fact, the state’s parens patriae authority to protect minors from harm compels the opposite conclusion. In both of the respects discussed, the interests of the child have constitutional stature. Although the United States Supreme Court has not placed the enjoyment of those interests on an equal footing with the constitutional liberty interests of fit parents to make caregiving decisions, Troxel prescribes a particular form of balancing, in which a fit parent’s liberty interest is given threshold primacy in the form of a presumption that he or she will act in the child’s interests. Troxel, 530 US at 68 (O’Connor, J., plurality opinion). If the presumption is not rebutted, the Court must accord the parent’s determination of custody or parenting time special weight. Id. at 69 . However, if the Court determines that the presumption has been rebutted, the interests of the child are paramount. Id.

With that background, I turn to what appears to be the principal dispute between the concurrence and Judge Edmonds’s dissent, namely, whether ORS 109.119 can be constitutionally applied, under the facts here, to permit an award of custody to grandparents. Although the correctness of the concurrence’s application of the statutory standards to the facts of this case is subject to legitimate debate, it is far less ciear that there is anything about the statute itself, as applied, that is unconstitutional.

ORS 109.119 literally follows the Troxel template for parenting-time cases but with a twist that matters here. That statute also provides for custody awards to nonparents under certain conditions. As discussed, the Troxel plurality carefully avoided ádopting a strict scrutiny test for parenting time disputes involving a parent and nonparent. However, because a parent’s loss of custody is a far greater intrusion on a fundamental liberty interest than is the loss of parenting *758 time, it is unclear whether the Court would impose additional restrictions on an award of custody to a nonparent than it imposed in Troxel on nonparent parenting time awards. What does seem clear, though, is that the “compelling reasons” test followed by the concurrence in this case should be sufficient to save the statute, even as applied to a custody dispute.

The compelling reasons test is not expressed in ORS 109.119 or, for that matter, in Troxel . It is a holdover requirement from Sleeper and Sleeper, 328 Or 504 , 982 P2d 1126 (1999), and Hruby and Hruby, 304 Or 500 , 748 P2d 57 (1987), that this court has continued to apply to the statute in order to implement the presumption required by Troxel . Perhaps the presumption could have been implemented in another way. Its circularity, as discussed above, makes it somewhat difficult to apply in the first place. 3 However, for want of a preferable constitutional buttress, we have adhered to the compelling reasons test and that is the lens through which the concurrence properly has examined the record in this case.

In his dissent, Judge Edmonds appears to take the position that the statute is constitutionally deficient because “[t]he state law standards, ‘inadequate love and care’ and ‘undue risk of physical or psychological harm,’ are by their nature subjective. Any minimally adequate parent could be found guilty of ‘inadequate love and care’ or of creating an ‘undue risk of physical or psychological harm.’ ” 188 Or App at 741 (Edmonds, J., dissenting). I respectfully disagree. Those standards, found in ORS 109.119(4)(b)(A) and (C), may be imprecise, but they are not any more subjective than the factors that courts regularly apply in any custody determination. In fact, they effectuate the children’s constitutionally grounded protective rights. Moreover, the parental shortcomings covered by those factors must be compelling in order to justify an award of custody to a nonparent; they cannot be trifling or insignificant. 4

*759 Accordingly, the question reduces to whether the record here shows compelling reasons to find that grandparents have rebutted the presumption and, if so, that the children’s best interests will be served by an award of custody to grandparents. As the issues are framed in this case, that determination requires consideration of both the children’s associational rights, ORS 109.119(4)(b)(B), and their rights to protection from harm, ORS 109.119(4)(b)(A) and (C).

The evidence shows that the children have a very close relationship with grandparents. Gary MacKendrick, who had provided psychological services to the children after their parents’ separation and dissolution, opined that grandparents had “always been the basis of consistency and nur-turance to both of these children.” The custody evaluator, Dr. Charlene Sabin, also concluded that the relationship between the children and grandparents was the more stable and nurturing. However, the evidence also shows that the children are very close to mother and their siblings who live in her home. In fact, Sabin testified that there was no “differential attachment” between the children and the two families. The record, then, leaves the impression that, although the children would be better off, from a “best interests” standpoint, in grandparents’ custody, they are equally attached to both families. 5

*760 As pertinent to the children’s rights to protection, the evidence shows that mother has been insensitive to the children’s emotional needs. However, much of the evidence to that effect involves conduct relating, directly or indirectly, to the death of the children’s father and the present custody dispute. Although that evidence is troubling, I do not weigh it as heavily in the balance as I would if it involved less stressful circumstances. It is also true that the children’s physical circumstances while in mother’s care were not optimal. In that regard, the evidence concerning A’s tooth decay is a cause for concern, but it does not necessarily suggest serious neglect on mother’s part. In sum, although much of the evidence does not flatter mother, the overall quality of her parenting is no worse than that of thousands of Oregonians who struggle with their own limitations but ultimately succeed, without state intervention, in raising their children safely.

In my view, the evidence pertaining to the factors described in ORS 109.119(4)(b)(A), (B), and (C) does not furnish one or more compelling reasons to award custody of the children to grandparents. It follows that grandparents have not rebutted the presumption, for custody purposes, that mother will act in the children’s best interests.

Accordingly, I respectfully dissent.

Landau, J., joins in this dissenting opinion.

See Troxel, 530 US at 66 (O’Connor, J., plurality opinion); id. at 77 (Souter, J., concurring in the judgment); id. at 80 (Thomas, J., concurring in the judgment); id. at 86-87 (Stevens, J., dissenting); id. at 95 (Kennedy, J., dissenting). Justice Scalia alone concluded that court-ordered visitation burdened no fundamental right of parents. See id. at 92 (Scalia, J., dissenting).

I include the four-member plurality and Justices Stevens, Kennedy, and Souter. See id. at 68-69 (O’Connor, J., plurality opinion); id. at 77-78 , 78 n 2 (Souter, J., concurring in the judgment); id. at 86, 89-90 (Stevens, J., dissenting); id. at 98 (Kennedy, J., dissenting).

The circularity of the Troxel standard, discussed above, apparently led the legislature to adopt identical factors for consideration by the court in determining whether the presumption has been rebutted and, if so, whether the child’s best interests would be served by an award of custody to the nonparent contestant.

Judge Edmonds’s dissent also suggests that the statute erroneously prescribes a preponderance, rather than a clear and convincing evidentiary standard, *759 for rebuttal of the statutory presumption. 188 Or App at 729-30 n 10 (Edmonds, J., dissenting). There is support for that proposition. See, e.g., In re Marriage of Harris, 92 Cal App 4th 499 (2001), rev allowed, 115 Cal Rptr 2d 191 (2002) (holding that, because the constitutional right of parents to care for their children as they see fit is afforded more protection than the statutory right to visitation of grandparents, it is appropriate to require the higher evidentiary standard of clear and convincing evidence under California’s nonparent visitation statute); Greer v. Alexander, 248 Mich App 259 , 639 NW2d 39 (2001), rev den, 465 Mich 971 (2002) (same). However, as the concurrence points out, we appear to have assumed that the preponderance standard is constitutionally sufficient. I believe that we were right to do so. A clear and convincing evidence standard arguably would be redundant to the underlying requirement that compelling reasons support rebuttal of the presumption that a fit parent will act in his or her child’s best interests. More substantively, as discussed, children have important constitutional rights in actions under ORS 109.119 that must be weighed in the balance. To the extent that a heightened burden of proof would add a further barrier to nonparent custody or parenting time where a child-parent relationship exists, it would further skew the delicate balance of family interests toward the parent and away from the child.

I do not mean to suggest that “attachment to the parent is the most significant issue in custody cases between a parent and nonparent.” See 188 Or App at 715 (Deits, C. J., concurring). Rather, I part company with the concurrence’s determination that the record shows compelling reasons, as opposed to a “best interests” basis, for an award of custody to grandparents.