Willamette Law Online

Oregon Court of Appeals


ListPreviousNext


Stewart and Stewart

Summarized by: 

Date Filed: 05-15-2013
Case #: A150549
Ortega, P.J.; Sercombe, J.; and Hadlock, J; Per Curiam
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A150549.pdf

Family Law: A parent's incarceration does not require that visitation rights be denied. Each case must be decided on the merits, not on a general policy disallowing children to visit parents while incarcerated.

Wife appealed the trial court's decision denying her all parenting time without finding that granting parenting time would endanger the health and safety of the wife and husband's two minor children. During the dissolution hearing, Wife was serving a prison sentence expected to last for another 14 years. The trial judge, in his written judgment, crossed out the phrase "endanger the health and safety of the children" and instead wrote "wife is currently serving a Measure 11 prison sentence." After striking out that phrase, the trial judge did not perform the proper inquiry into whether visitation would endanger the health and safety of the two children. The trial court erred in this omission. The Court of Appeals has consistently held that a parent's incarceration does not require that visitation rights be denied. Moreover, each case must be decided on the merits, not on a policy disallowing children to visit parents while incarcerated. The Court of Appeals also noted that it is the trial court's job, as opposed to a third party, to develop a parenting plan in the best interest of the children. Reversed and remanded.