Oregon custody laws aim to ensure that minor children have frequent and continuing contact with both parents. The laws also encourage parents to share in the rights and responsibilities of raising their children. Both of these goals are important so long as they are in the best interests of the children. Courts take these policies into account when they are deciding custody and parenting time issues. There is a distinct difference between a custody determination and parenting time. Custody decisions are about who will have decision-making authority for a minor child or children. Parenting time is the schedule that determines when the child will be in the care of each parent.
There are two common types of custody: joint custody, and sole custody. Joint custody in Oregon means the parents share authority to make decisions about the care, control, education, health, religion and primary residence of a minor child. It is not about the amount of time each parent spends with the child. Some people think joint custody means the child lives with each parent 50% of the time. That is not true. Parents may have joint custody even when a child lives mostly (or even exclusively) with one parent. Joint 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 custody in Oregon means that the parent who has custody makes all major decisions regarding the child. These may include the child’s religious and educational training, health care and where the child’s lives. Usually a custodial parent has a majority of the parenting time with a child.
The court’s primary consideration in awarding custody is “the best interests and welfare of the child.” In making a decision on custody, the court will consider all of the following factors:
In determining custody, the court may not give preference to the mother or father based on gender. Nor will the court consider the conduct, marital status, income, social environment or lifestyle of a parent unless it has or could damage the child physically or emotionally. Typically, courts are reluctant to separate siblings. Generally, it is not considered in the best interest of a child to award custody to a parent who has committed abuse against the other parent or child. (See Restraining Orders and Domestic Violence for definitions and information on abuse.)
The court will consider the testimony of the parents and other people who know the child or the parties. Sometimes a judge may also rely on the testimony of "expert witnesses." These experts include psychologists, social workers, teachers, counselors, custody evaluators or psychiatrists. The court may consider a child’s preference about where he or she wants to live, but does not have to follow the child’s wishes. But many judges prefer not to put a child in the position of "choosing" a parent. That is often not in the best interests of the child. There is no minimum age at which a child’s wishes will be considered, although the child's age might affect how much weight their preference is given.
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. Parents can also ask for a temporary order to prevent either parent from removing children from their current situation. These orders are called “temporary protective order[s] of restraint.” The order can be either for “temporary emergency custody” or a “status quo” order. Also, while a case is pending, either party can ask the court for pendente lite orders. These are limited orders on temporary custody, parenting time, support, where the child should go to school, etc.
Usually decide on parenting time at the same time as custody. Parenting time (sometimes called visitation) is the time each parent will have with the child. Like custody, parenting time is also based on the “best interests of the child.” There are many variations to a parenting time schedule. There is no presumption in Oregon law for equal parenting time. One common schedule is every-other weekend, plus midweek evening visits and extra time in the summer and holidays for one parent. With that schedule, the other parent has the child the rest of the time. There are many variations, and parents should try to work out a plan that fits their needs and is in the best interests of their children. If there has been abuse, neglect or drug activity by a parent, the court may order parenting time to be supervised. “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 visits. Only in extreme circumstances, where there is clear danger to the child, will a court deny parenting time completely.
Either the parents or the court will determine a parenting plan that spells out the amount of time each parent will have with a child. In many counties in Oregon, the court requires the parents to try to work out a plan with a neutral third party called a mediator. Only then, if the parents cannot agree, the court will decide issues of custody and parenting time. Also, in most Oregon counties, both parents must attend a court-ordered parenting class. Both must complete the class before a case involving custody and parenting time is final.
Under Oregon law, both parents almost always have the right to access the child’s school, medical, dental, police and counseling records. Both parents can also typically authorize emergency medical care. Most parenting plans will restrict both parents from moving more than 60 miles without first telling the other parent and the court. The parent who wants to move must give notice 30 to 60 days before moving. That gives the other parent an opportunity to contest the relocation or to have the court revise custody or parenting time.
When deciding on custody and parenting time, the court will probably also decide about child support, health insurance for the minor children, and payment for uninsured medical expenses for the children. The specifics of a parenting plan can impact the amount of child support ordered.
Custody may be changed if a parent can show that there has been a substantial change of circumstances since the prior order. Again, the court would have to decide that a different custodial parent would be in the best interests and welfare of the child. There does not need to be a substantial change in circumstances to ask for a change in a parenting time schedule. The parent asking for a change would still need to show that a different parenting time schedule is in the best interests of the child.
Legal editor: William M. Jones and Cambell Boucher, May 2020