Matter Appropriate for Judicial Disposition

Grandparent Custody RightsWhen Does A Grandparent’s Rights Case Become Inappropriate for Judicial Disposition?
Two years ago I divorced my husband in Oregon and was awarded custody of our six year old son. Six months ago, my mother filed a lawsuit against me and my ex requesting she be awarded custody instead. At the time the lawsuit was filed, my mother and I were not getting along. Since then, my mother and I have reconciled, and she is now offering to dismiss the lawsuit, but my ex is not willing to agree to a dismissal. What can I do?

First and foremost, a court must determine whether an issue is “appropriate for judicial disposition.” Yancy v. Shatzer, 337 Or 345, 349, 97 P3d 1161 (2004). The Supreme Court of Oregon has described that exercise as “a determination whether a ‘justiciable controversy’ exists.” Yancy, 337 Or at 349. A court does not have jurisdiction over a nonjusticiable controversy because, absent constitutional authority, a court may not issue advisory opinions. Cummings Constr. Co. v. School Dist., 242 Or 106, 110, 408 P2d 80 (1965). “[A]t least in general terms, . . . the constitutional grant of governmental power to the judiciary is limited by the justiciability requirement.” Yancy, 337 Or at 351. See Friends of Columbia Gorge, Inc. v. Columbia River Gorge Comm’n,215 Or App 557, 572, 171 P3d 942 (2007), aff’d in part, rev’d in part on other grounds, 346 Or 366 (2009). Justiciability excludes any “‘prudential’ considerations that might result in the discretionary expansion or contraction of categories of cases over which the court will exercise judicial power.” Friends of Columbia Gorge, Inc., 215 Or App at 572–573.

Justiciability is “a vague standard,” but a court may consider factors which it deems relevant. Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982).
A justiciable controversy is “an actual and substantial controversy.” Brown, 293 Or at 449. The “actual and substantial controversy” must exist between parties that have “adverse legal interests.” Brown, 293 Or at 449; Brumnett v. Psychiatric Sec. Review Bd., 315 Or 402, 405, 848 P2d 1194 (1993) (a justiciable controversy exists only when “the interests of the parties to the action are adverse”).

Accordingly, if the custodial parent and the grandparent agree to a dismissal of the grandparent’s petition for third-party custody, arguably, there is nothing left for the court to decide, because custody would then remain unchanged. Under such circumstances, the matter would be considered moot, and the custodial parent should bring a motion to dismiss the case based on lack of subject matter jurisdiction. In order for the non-custodial parent to be awarded custody, he would have to file a separate lawsuit; however, he would have to show the circumstances have changed substantially since the original award of custody, and that a change in custody would be in the best interest of the child.