Although Tel-Law information is periodically reviewed, it is important for you 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.

If you do not have an attorney, the Oregon State Bar Lawyer Referral Service can help you. Online Lawyer Referral Service information and a fill-in form is available. Or you may contact the service by phone: The number to call from the Portland area is 503-684-3763 or toll-free from anywhere else in Oregon, 1-800-452-7636.

The following information regarding child custody in dissolution of marriage is brought to you as a public service by the lawyers of the State of Oregon. The material presented is general legal information intended to alert you to possible legal problems and solutions.

It is a policy in Oregon to encourage parents to share in the rights and responsibilities of rearing their children after legal separation or divorce. Another policy of the state is to ensure that children have frequent contact with parents who act in the best interests of their children. Courts take these policies into account when they are deciding custody.

What is custody? There are two common definitions of custody: joint or sole custody. There are also two common types of "parenting schedules." One type is that the primary physical residence of the child is with one parent, and the other type is a shared parenting schedule where each of the parents has a significant number of overnights with the child.

If one parent has the primary physical residence of the child, the other parent will usually have a parenting schedule such as every other weekend and one evening a week. There are many variations, and parents are encouraged to work out a schedule that works for them.

In a sole custody situation, the parent with custody, called the "custodial parent," makes the major decisions and usually has the child most of the time. These major decisions may include the child's religious and educational training, health care, and where the child will live.

The other parent, the "non-custodial parent," is able to have "parenting time" with the child. Either the parents or the court will make up a schedule that spells out the minimum amount of time and access a non-custodial parent is to have. Under Oregon law, the non-custodial parent almost always has the right to access the child's school, medical, dental, police, and counselor's records. The non-custodial parent can also authorize emergency medical care. In addition, neither party can move more than 60 miles from the other parent without telling the other parent and the court.

"Legal joint 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 regardless of the amount of actual time the child lives with one parent or another. Joint custody does not mean simply alternating where the child lives from time to time. In fact, there may be legal joint custody, but the child may live with only one parent. Joint custody does not eliminate the duty to support the child.

Until an order of the court, both parents have the same rights to be with and make decisions for their minor children. Temporary emergency legal custody can be given to one parent in cases when a child is in physical danger or one parent has been abused by the other. A final judgment of divorce will grant either sole custody, which means custody to one parent, or joint custody, which means to both parents, and will establish a parenting time plan unless the court (in rare cases) finds that parenting time would endanger the health or safety of the child.

While the divorce is pending, parents can apply for a temporary order that maintains the current situation of the children and prevents either parent from removing the children from their current situation. This is called a "status quo" order or a "temporary protective order of restraint."

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 with a neutral third party, called a mediator. The mediator helps the parents try to decide together. If the parents cannot agree, the court will decide who gets custody. The court cannot award joint custody unless both parents agree to it.

The court's primary consideration in awarding custody is "the best interests of the child." In deciding custody and determining the best interests 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 the child and their attitudes toward the child;
• The desirability of a continuing and existing relationship;
• The abuse of one parent by the other; and
• the willingness of a parent to encourage the child’s relationship with the other parent.

The court cannot give custody to a parent only because the parent is the mother or the father of the child. The court will consider the child's emotional ties or bonds with the person who has been the primary caretaker of the child. The primary caretaker is usually defined as the one who attends to the child's basic needs on a daily basis and this is often the parent with whom the child is living. It is a very important factor in determining custody issues. The court will consider the conduct, marital status, income, social environment or lifestyle of a parent only if it does or may cause emotional or physical harm to the child. Courts are reluctant to separate siblings.

The court may consider a child’s preference to live with a parent but does not have to follow the child’s wishes. In deciding custody, a judge may rely on the testimony of expert witnesses, as well as other witnesses. Expert witnesses may be people such as psychologists, social workers, teachers or psychiatrists.

The court may decide not only custody, but also parenting time and child support. The court may order that the child not be removed from the state without notice to the other parent. In special circumstances, where there has been violence or abuse of the child, the court can order that parenting time be "supervised." This means that a designated third party, often a family friend or relative, must be present when the parent visits with the child. The court may also require that the parent receive counseling, or abstain from drugs or alcohol during the visit. Only in extreme circumstances, where there is a danger to the child, will the court deny parenting time altogether.

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 previous court order, and that the change would be in the best interests of the child. A parent can ask for a change in a parenting schedule without having to show a substantial change.

This information is from the Oregon State Bar's Tel-law service, a collection of recorded legal information messages prepared by the lawyers of Oregon. In addition to being online, the Tel-law service is accessible by telephone at 503-620-3000 or toll-free in Oregon only, 1-800-452-4776. A touch tone phone allows direct access 24 hours a day, 7 days a week. To receive a free Tel-law brochure listing the subjects available call 503-620-0222, ext. 0.