FILED: August 14, 2002

SHERILL WILLIAMSON,

Respondent,

v.

SCOTT HUNT
and KAREN HUNT,

Appellants.

Appeal from Circuit Court, Josephine County.

J. Loyd O'Neal, Judge.

Argued and submitted May 20, 2002.

Frank C. Rote, III, argued the cause for appellants. With him on the briefs was Brown, Hughes, Bird, Rote & Wetmore.

Lynn M. Myrick waived oral argument and filed the brief for respondent.

Before Landau, Presiding Judge, and Brewer and Schuman, Judges.

SCHUMAN, J.

Reversed.

SCHUMAN, J.

The trial court awarded grandmother the right to visit grandchild despite the objection of child's parents, grandmother's daughter and son-in-law (parents). Parents appeal, arguing that the trial court's decision violated Oregon's grandparent visitation statute (subsequently repealed) and, if not, that the statute was unconstitutional. Parents also argue that the court erred in awarding grandmother temporary visitation during the litigation and in not permitting child to testify. We reverse.

On de novo review, ORS 19.415(3), we find the following facts. Child was born to Karen Hunt (mother) and Ted Weiss, mother's then-husband, on February 21, 1991. Weiss severely and repeatedly abused both mother and child, leading ultimately to his incarceration. The couple divorced in 1994. During and after their marriage, mother and child lived either with grandmother and her husband (mother's stepfather) or in a mobile home on grandmother's property, except for a short period during which mother and child lived in a shelter for abuse victims.

On January 1, 1998, mother married Scott Hunt (stepfather). After the marriage, the couple, along with child and stepfather's child from an earlier marriage, continued to live in a mobile home on grandmother's property. Child at first continued her frequent and regular visits with grandmother, but tensions began to develop as parents became increasingly dissatisfied with some of grandmother's conduct toward child (for example, giving her snacks and presents) and with the way child behaved after the visits. Those tensions came to a head in June 1998, at around the time stepfather officially adopted child, thereby terminating Weiss's parental rights. (1) In addition to their concerns about snacks and gifts, parents began to entertain more serious doubts about whether grandmother and mother's stepfather were providing a safe and healthy environment. Those doubts were based not only on conflicting attitudes toward child-rearing, but also on mother's own experience growing up in grandmother's household and her observations of that household as an adult. Although grandmother denied many of the events on which mother's doubts rested, many others are undisputed: some sibling incest, some violence, some exposure to substance-abusing sex-abusers.

Because of those concerns, parents began to keep child away from grandmother. On July 7, 1998, grandmother, through her attorney, requested that parents allow one overnight visit per week, after-school chats "to see how her day has gone," telephone communication "on a regular basis," and visitation on major holidays. Grandmother's letter informed parents that, if they refused to make the requested accommodations within six days, she would file a petition in circuit court seeking court-ordered visitation. Parents refused, and grandmother filed her petition on July 29, 1998. Between that filing and the first hearing some two months later, the parties agreed to one hour per week of supervised visitation in the offices of a social services provider in Grants Pass but, just before the hearing, those visits were suspended because parents were dissatisfied with the level of supervision.

The first hearing on the petition occurred on October 6, 1998, and resulted in an order allowing one hour of supervised visitation per week during the litigation. The trial on the merits of the petition took place in three days spread over the next two years, concluding with a judgment on October 31, 2000. Between the start of the trial and its conclusion, the United States Supreme Court handed down Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000), holding that a fit custodial parent has a fundamental right under the Due Process Clause of the Fourteenth Amendment to make decisions about the care, custody, and control of her child and that the right is violated when a trial court orders grandparent visitation over the objections of the parent without according sufficient weight to the parent's wishes or recognizing the presumption that the parent acts in the best interest of the child.

At the conclusion of the trial, the judge wrote a letter opinion stating, "This case is interesting in light of [Troxel v. Granville,]" and concluding that grandmother "has carried her burden." The court also wrote:

"I also find that the parents' prerogative concerning their children and who that child should or should not be exposed to is entitled to special weight. Therefore, during the visitation with [grandmother] the child is not to be exposed to [Weiss or Weiss's mother] and is not to be left in the house alone with [grandmother's husband] or left alone with any male without [grandmother's] personal supervision."

The judgment awarded grandmother three full days of visitation per month subject to those limitations. Parents appeal.

Before directly addressing parents' assignments of error that deal with the application and constitutionality of the grandparent visitation statute, ORS 109.121, we must decide whether that statute, repealed in 2001, was retroactively replaced by an amended version of ORS 109.119, Oregon's general third-party custody and visitation statute. Both the repeal and the amendment were contained in Oregon Laws 2001, chapter 873. The evident purpose of that act was to bring Oregon law into compliance with the dictates of Troxel. Section 1 of this "Troxel fix" amended ORS 109.119 to create a rebuttable presumption in favor of parents as against third parties. Section 2 repealed ORS 109.121. Section 3 provides as follows:

"The amendments to ORS 109.119 by section 1 of this 2001 Act apply to petitions filed under ORS 109.119 or 109.121 (1999 Edition) before, on or after the effective date of this 2001 Act [July 31, 2001]."

Or Laws 2001, ch 873,