concurring in part and dissenting in part.
I agree with the lead opinion that the 2001 amendments to ORS 109.119 apply to this case. For the reasons articulated by Judge Landau, however, I believe that this case should be remanded to develop the factual record. However, because the case will not be remanded, I write separately to emphasize the concerns about the lead opinion’s statutory analysis that Judge Landau identifies.
The lead opinion reasons, in part, that, because the 2001 amendments apply,
“[t]he presumption in ORS 109.119(2)(a), that a legal parent acts in the best interests of the child, is the legislature’s statement of the parent’s constitutional right that we described in our previous opinion. Two of the nonexclusive criteria in ORS 109.119(4)(b) are directly relevant to the constitutionally required test of whether the legal parent can provide the care that the constitution requires in order for that parent to retain custody. A legal parent who is unwilling or unable to care adequately for the child, ORS 109.119(4)(b)(A), necessarily ‘cannot or will not provide adequate love and care’ for the child. Whether circumstances detrimental to the child will exist if relief is denied, ORS 109.119(4)(b)(C), is closely related to whether placing the child in the legal parent’s custody would cause an undue risk of physical or psychological harm to the child. Those statutory criteria thus relate to the threshold issue of whether the nonparent has rebutted the presumption.
*24“I conclude, for the reasons that we stated in our previous opinion, that the application of those statutory factors in this case leads to the same result that we reached in our previous decision under the constitutional tests, and I would therefore adhere to that result.”
187 Or App at 19-20.
Our analysis in the custody cases that we have decided under ORS 109.119 (1997) was statutory. In other words, using the methodology of PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), we interpreted ORS 109.119 (1997) as incorporating the federal constitutional presumption that gives effect to father’s fundamental due process right to the care, custody, and control of his children, and our holdings were based on the application of that statute. A new statute applies to this case. We cannot assume that the new statutory language will be interpreted to incorporate or reflect the constitutional presumption or the factors necessary to rebut that presumption as we have described them. Instead, we must interpret the statutory language and apply it to the facts of a case, and, if a nonparent receives custody under the statute, we must determine whether the application of the statute has infringed on the fundamental right of the parent to the care, custody, and control of his or her child.
The lead opinion implies that the presumption under the statute is equivalent to the constitutional presumption and that two statutory factors are equivalent to the two necessary factors that we have identified to rebut the constitutional presumption. That may not be correct. For example, by definition, the term “ ‘[circumstances detrimental to the child’ includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child.” ORS 109.119(8)(b). That definition could be interpreted to be broader than the prong of the constitutional analysis concerning whether the child will face an undue risk of physical or psychological harm. Additionally, in State v. Wooden, 184 Or App 537, 546-51, 57 P3d 583 (2002), we reasoned that a parent who has established a sufficient relationship with the child has the fundamental right and is entitled *25to the presumption. However, under the statute, a legal parent is entitled to the presumption.1 ORS 109.119(2)(a). The lead opinion implies, without any analysis, that the constitutional presumption and the two factors necessary to rebut it are a part of the statute. However, the opinion does not explore the relationship between the statute and the constitutional presumption that effectuates a parent’s fundamental right nor does it explore the relationship between the two statutory factors that it identifies and the other nonexclusive statutory factors.
As Judge Landau correctly asserts:
“I suppose that it could be argued that, if the statute merely ‘codifies’ the Troxel[ v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000),] decision, the parties would be in no position to complain that they could not have adequately developed the record. But the argument rests on an assumption that the statute has such a limited effect. That assumption is debatable, to say the least. And we have not yet had occasion to decide the matter. Indeed, to determine whether the assumption is well founded would require us, among other things, to interpret the new statute, determine its constitutionality, address the standard of proof that it prescribes, and articulate its relationship to Troocel — all that simply to decide whether to remand the case. It strikes me that the better use of our resources is to address those questions as they arise, and are briefed, in concrete cases.”
187 Or App at 29-30 (Landau, J., concurring in part, dissenting in part).
I agree that, in this case, even though the amendments apply, there is no need for us to apply them on reconsideration. If we were to apply ORS 109.119 (2001), it would result in a determination either that father receive custody under the statute’s terms or that grandparents receive custody. A determination that father receive custody is consistent with the result in our former opinion. A determination that grandparents receive custody would require that we then determine whether father’s substantive due process *26right to the care, custody, and control of his children was infringed through an application of the statute that results in an award of custody to grandparents. That is essentially what we did in our former opinion in this case. As we explained:
“Thus, to overcome the presumption in favor of father under ORS 109.119(2)(a) (1997), grandparents must establish that the evidence as a whole preponderates in their favor, that is, that father cannot or will not provide adequate love and care for the children or that placement of the children in father’s custody will cause them undue physical or psychological harm. Said another way, for a nonparent to prevail on those issues, the weight of the evidence in favor of the nonparent, when considered in light of the evidence in favor of the parent, must be such as to overcome the weight of the presumption. That means that the court must find by a preponderance of the evidence either that the parent cannot or will not provide adequate love and care or that the children will face an undue risk of physical or psychological harm in the parent’s custody. We review the evidence in this case to determine whether grandparents have met that standard. In doing so, we do not balance the benefits to the children of being in father’s custody against the benefits of being in grandparents’ custody; rather, we determine whether the children would receive inadequate parenting or would suffer undue harm in father’s custody.”
O’Donnell-Lamont and Lamont, 184 Or App 249, 256-57, 56 P3d 929 (2002). Based on the reasoning in our former opinion, the statute could not be applied to deny father custody of his children because grandparents have not rebutted the constitutional presumption in his favor. Thus, there is no reason to apply ORS 109.119 (2001) on reconsideration because we have already determined the legally required result.
I respectfully dissent.
Landau, Linder, and Brewer, JJ., join in this dissent.
A legal parent is “a parent as defined in ORS 419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.” ORS 109.119(8)(d).