# In Re the Marriage of Winczewski

> Court of Appeals of Oregon · July 16, 2003 · 188 Or. App. 667

URL: https://www.frixlaw.com/law-library/cases/9787375

## Case

- **Full name:** In the Matter of the Marriage of Eileen WINCZEWSKI, AKA Eileen Ordway, Appellant, and Stephen WINCZEWSKI, Respondent Below, and Oliver WINCZEWSKI and Barbara Winczewski, Respondents
- **Court:** Court of Appeals of Oregon
- **Decided:** July 16, 2003
- **Citations:** 188 Or. App. 667; 72 P.3d 1012; 2003 Ore. App. LEXIS 903
- **Precedential status:** Published
- **Opinion:** Dissent by Schuman
- **Judges:** Deits, Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Kistler, Brewer, Schuman
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9787375

## How later opinions describe it (automated extraction)

- finding constitutional a custody and visitation statute that requires only a “preponderance of the evidence” standard for a non-parent to rebut the presumption that the legal parent acts in the best interest of the child

## Opinion text

SCHUMAN, J.,
dissenting.
I agree with the concurrence that our recent cases interpreting Troxel v. Granville, 530 US 57 , 120 S Ct 2054 , 147 L Ed 2d 49 (2000), stand for the proposition that the state violates the Due Process Clause if it permits interference by a nonparent with a parent’s right to the care, custody, or control of his or her child unless the nonparent can establish by a preponderance of the evidence that the parent cannot or will not provide adequate love and care for the child or that state interference is necessary to avoid an undue risk of physical or psychological harm to the child.
However, the harm that can justify abridging the parental right must be far, far more serious than what has been demonstrated here. In that respect, I agree with Judge Edmonds’s able dissent. I do not fully subscribe to that dissent only because of the rule that Judge Edmonds uses to *761 reach his conclusion—the “fundamental right,” “compelling state interest” rule familiar from federal Fourteenth Amendment law. The number of cases in which the United States Supreme Court has held that government action survives this level of heightened review can probably be counted on the fingers of two hands. Thus, under Judge Edmonds’s standard, the line between tolerable and intolerable parenting is predestined to fall in such a way as to make the parental presumption virtually irrebuttable. That could not be what the Troxel plurality intended.
I also agree with Judge Brewer that the resolution of cases involving disputes between parents and third parties requires a more sensitive evaluation of the child’s interest than Troxel appears to acknowledge. I do not join Judge Brewer’s dissent only because I see no need to label the child’s interest as a free-standing fundamental substantive due process right instead of an interest protected by the state as parens patriae.
Armstrong, J., joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9787375. Public record. Not legal advice.