Southard and Larkins

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Family Law
  • Date Filed: 12-16-2015
  • Case #: A158190
  • Judge(s)/Court Below: DeVore, J., for the Court; Duncan, P.J.; & Flynn, J.
  • Full Text Opinion

In custody proceedings, custody of a child may be granted to a primary caretaker who is a stepparent of a child; a primary caretaker seeking custody of a child may overcome the presumption that a biological parent acts in the best interest of a child if the caretaker may show that the child will face a detriment if removed from the primary caretaker's custody.

Mother appealed a custody award of three children to Southard. Mother married Larkins; they divorced while Mother was pregnant with AR. When AR was born, Southard was present and was listed as AR’s father. DNA testing confirmed that Larkins was AR’s biological father. Mother and Larkins remarried. In July 2009 Mother remarried Southard. In 2012, Southard filed for dissolution and sought custody of AR. Mother sought to assert Larkins as AR’s father. The dissolution court found that Southard was AR’s legal father. The court dissolved the marriage and awarded Southard custody of AR. In another proceeding, Mother sought to remove the finding that Larkins was not AR’s father. The court acknowledged that AR was born within 300 days of the first Larkins marriage and therefore was Larkin’s child. On mother’s first appeal, Southard moved for custody of AR as a “psychological parent,” while mother moved for custody of AR, asserting that circumstances changed when AR’s paternity was revealed. The Oregon Court of Appeals held that Southard had a parent-child relationship with AR, that Mother did not act in AR’s best interest, and that the best interest of AR was to remain with Southard. Mother appealed again, assigning error to the court’s recognition of Southard as having a parent-child relationship with AR, claiming that Southard could not be awarded custody of AR as someone who is not an adoptive or biological parent. The court held that Southard, as a stepparent of AR, had been shown to have a child-parent relationship with AR at least six months before the petition, and had physical custody of AR for the requisite amount of time. The court also found that Southard successfully rebutted the presumption that Mother acted within AR’s best interest by showing that it would be a detriment to AR to remove him from Southard’s custody. Affirmed.

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