Oregon policy assures minor children frequent and continuing contact with parents and encourages parents to share in the rights and responsibilities of rearing their children after a legal separation or divorce (dissolution) when 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 determinations decide who will have decision-making authority for the minor child, while parenting time concerns when the child will be in the care of each parent.
There are two common types of custody: Joint custody, and sole custody. Joint legal custody in Oregon is defined as the sharing of parental decisions about care, control, education, health, religion and primary 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’s primary residence is. 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 deciding custody and determining the best interests and welfare of the child, 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 . 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 against the other parent or child (as defined in the FAPA Restraining Order statutes).
The court may 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. Most courts are reluctant to consider the wishes of the child, and forcing a child to “choose” a parent is often not considered to be in the child’s best interests. This is true no matter the age of the child, and there is no minimum age where a child’s wishes will be considered, although the age of the child and the reasons expressed determine how much weight is given to a child’s preference. In deciding custody, the court considers the testimony of the parties and other witnesses knowledgeable about the child or the parties. In some cases, a judge may also rely on the testimony of expert witnesses, such as psychologists, social workers, teachers, counselors, custody evaluators or psychiatrists.
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 child’s current situation and prevents either parent from removing children from their current situation. These orders are called “temporary protective order[s] of restraint” (TPOR) 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 (limited orders while the larger case is pending) concerning temporary custody, parenting time, support, where the child should be enrolled in school, etc., or related orders.
When custody is established, a court usually also decides the amount of parenting time (commonly referred to as visitation) 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. 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 fits their needs and is in the best interests of their children. The court may order parenting time to be supervised in situations where the health, safety or wellbeing of the child is concerned such as when 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 visits. 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. Also, in most Oregon counties, both parents will be required to attend a court ordered parenting class before a case involving custody and parenting time will be finalized.
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. In addition, most parenting plans will restrict a party from moving more than 60 miles from the other parent without first telling the other parent and the court 30 to 60 days before moving, in order to give the other parent an opportunity to contest the relocation or to have the court revise a prior custody determination and/or revise the parenting plan in the best interests of the child.
When determining child custody and parenting time, usually the court will also decide issues concerning 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.
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 custodial parent 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: William M. Jones, August 2016