concurring.
In their petition for reconsideration, grandparents have asked us to remand this case because “the record necessary to support grandparents’ case has been compromised by a post-trial, pre-appeal sea change in the law.” I agree with the dissent that, when the parties did not have a fair opportunity to develop the record because the governing legal standards have changed, considerations of fundamental fairness, if not due process, require that we remand the case to give the parties that opportunity. A party, however, who seeks a remand to offer new evidence must do more than say that the standards have changed. A party also has the burden of identifying what sort of evidence he or she would offer on remand. The burden is not onerous; summarizing the sort of evidence that would be offered on remand ordinarily should suffice. Cf. State v. Phillips, 314 Or 460,466, 840 P2d 666 (1992) (describing what is required for an offer of proof); Benchmark Properties v. Hipólito, 161 Or App 598, 604-05, 984 P2d 927 (1999) (same).
Grandparents have not met that burden here. As the lead opinion notes, grandparents did not ask the trial court to reopen the record in light of the Supreme Court’s decision in Troxel v. Granville, 530 US 57,120 S Ct 2054,147 L Ed 2d 49
*23(2000), nor did they ask us to remand the case for that purpose when they filed their brief in this court. Only after we ruled that father was entitled to custody have grandparents asked us to remand the case because they did not have a fair chance to develop the record at trial. Not only is grandparents’ request for a remand somewhat late, but grandparents have not identified what they would introduce on remand that they did not introduce in the original hearing. In the absence of such a showing, I agree with the lead opinion that we need not remand for an evidentiary hearing.
Haselton and Schuman, JJ., join in this concurrence.