It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
Oregon policy encourages parents to share in the rights and responsibilities
of rearing their children after a legal separation or divorce (dissolution).
It is also state policy to ensure that children have frequent and continuing
contact with parents who have shown the ability to act in the best
interests of their children. Courts take these policies into account
when they are deciding custody issues. Decisions regarding custody
of, and parenting time with, a child are collectively called a “parenting
plan.”
There are two common types of custody: Joint legal custody, and sole
legal custody. Joint legal custody in Oregon is defined as the sharing
of parental decisions about care, control, education, health, religion
and residence of the minor child. The term joint custody refers
to the parents sharing the decision-making about a child regardless
of the amount of actual time the child spends with, or lives with,
one parent or the other. Joint custody does not mean that a child lives
with each parent 50 percent of the time. In fact, there may be joint
legal custody where a child lives primarily (or even exclusively) with
one parent. Joint legal custody also does not eliminate a parent’s
duty to support a child. A court cannot award joint custody in Oregon
unless both parents agree to it. Sole legal custody in Oregon means
that the custodial parent makes all major decisions regarding the child.
These major decisions may include the child’s religious and educational
training, health care and where the child will live. Usually the child
lives with the sole custodial parent most of the time.
The court’s primary consideration in awarding custody is “the
best interests and welfare of the child.” In deciding custody
and determining the best interests and welfare of the child, the court
will consider all of the following factors:
- "The emotional ties between the child and other family members;
- "The interest of the parents in and attitude toward the child;
- "The desirability of continuing an existing relationship;
- "The abuse of one parent by the other;
- "The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court. (Primary caregiver is the parent who attends to the child’s basic needs on a daily basis, and who is more closely bonded to the child);
- "The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
The court cannot give custody to a parent only because the parent
is the mother or father of the child. Also, the court will consider
the conduct, marital status, income, social environment or lifestyle
of a parent only if it is shown that those factors are causing or may
cause emotional or physical damage to the child. Typically, courts
are reluctant to separate siblings. There is a presumption (which can
be rebutted) that it is not in the best interest and welfare of a child
to award custody of a child to a parent who has committed abuse (as
defined in the FAPA Restraining Order statutes).
The court may— though most judges don’t want to — consider
a child’s preference as to where he or she wants to live, but
a court does not have to follow the child’s wishes. This is true
no matter the age of the child, although the wishes of older children
(i.e., teenagers) clearly have more weight than those of younger children.
In deciding custody, a judge often relies on the testimony of expert
witnesses. Expert witnesses may be people such as psychologists, social
workers, teachers, counselors or psychiatrists. The judge also considers
the testimony of the parties and other witnesses knowledgeable about
the child or the parties.
Until there is an order of the court, both parents have the same rights
to be with and make decisions for their minor children. Temporary emergency
custody can be given to one parent in cases when a child is in immediate
danger. While a divorce case is pending, parents can also apply for
a temporary order that maintains the current situation and prevents
either parent from removing the children from their current situation.
This is called a “temporary protective order of restraint” (TPOR)
or “status quo” order. Also, while a case is pending,
either party can ask the court for temporary custody or parenting time.
When custody is established, a court usually also decides the amount
of parenting time (visitation) for the non-custodial parent if sole
custody is ordered. Like custody, parenting time is also based on the “best
interests of the child.” There are many variations to a parenting
time schedule. Common parenting time schedules include every other
Friday to Sunday, Friday to Monday morning, midweek evening visits,
extra time in the summer and during holidays, etc. There are many variations,
and parents are encouraged to work out a plan that makes sense for
them and their children. The court may order parenting time to be supervised
in situations where there has been abuse, drug activity or neglect. “Supervised” means
that a designated third party, often a family friend or relative, must
be present when a parent visits with the child. The court may also
require that a parent receive counseling, take parenting classes, or
abstain from drugs or alcohol during the visit. Only in extreme circumstances,
where there is clear danger to the child, will a court deny a parent
parenting time completely.
Either the parents or the court will determine a parenting plan that
spells out the minimum amount of time each parent will have with a
child. In many counties in Oregon, before a court will make a decision
regarding custody or parenting time, the court requires the parents
to try to work out a plan with a neutral third party called a mediator.
Then, if the parents cannot agree, the court will decide issues of
custody and parenting time.
Under Oregon law, both parents almost always have the right to access
the child’s school, medical, dental, police and counselor’s
records. Both parents can also typically authorize emergency medical
care. In addition, most parenting plans will restrict a party from
moving more than 60 miles from the other parent without telling the
other parent and the court 30 to 60 days before moving.
The court will usually also decide issues of child support. The specifics
of a parenting plan can impact the amount of child support ordered.
A court order for custody may be changed later if it can be shown that
there has been a substantial change of circumstances since the prior
order, and that a different parenting plan would be in the best interests
and welfare of the child. A parent can ask for a change in a parenting
time schedule without having to show a substantial change in circumstances,
but he or she would have to show that a different parenting time schedule
is in the best interests of the child.
Legal editor: Joel K. Overlund, June 2008