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Child Custody
Determining Child Custody
In determining the custody of a minor child, the court will give primary consideration to the best interests and welfare of the child, including:
(1) The emotional ties between the child and other family members
(2) The interest of the parties in and attitude toward the child
(3) The desirability of continuing an existing relationship
(4) The abuse of one parent by the other
(5) The preference of the primary caregiver of the child, if the caregiver is deemed fit by the court
(6) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child
(7) No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father.
Sole Custody vs. Joint Custody
There are two types of custody: Sole custody and Joint custody. In joint custody, the court awards the child's legal custody to both parents, with a provision for the child's primary place of residence. Even though each parent will have an equal say in making major decisions that affect the child's life, the child may not spend an equal amount of time with each parent. Joint custody may be ordered by the court only if both parents agree and joint custody will be terminated at any time simply by the request of either parent.
In sole custody, one parent has the sole right to make vital decisions regarding the child's education, religious training, health care, etc. Reasonable and consistent visitation for the non-custodial parent will be allowed under both sole and joint custody under what Oregon calls a "parenting plan."
Custody Evaluation
If the spouses cannot agree on custody or visitation, they may agree or the court may order that the spouses undergo a custody evaluation. The evaluation is performed by a social worker or psychologist who interviews and observes both parents, the children and other relevant people acquainted with the family in order to determine what is in the best interests of the children. Some courts have a family services department which can perform these evaluations for a minimal charge. Private evaluations are also available for use in more complex cases, but generally costs thousands of dollars. If the spouses still cannot agree after the evaluation and the issues are litigated, either party may call the evaluator as a witness in this litigation.
Parenting Plan
It is the policy of state of Oregon to assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child and to encourage the parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage. The court will generally approve a parenting plan which has been agreed upon by the spouses. Every county has a model parenting plan which can be used by families who do want to develop their own plan. A typical parenting plan includes provisions for:
(1) Residential schedule
(2) Holiday, birthday and vacation planning
(3) Weekends, including holidays, and school in-service days preceding or following weekends
(4) Decision-making and responsibility
(5) Information sharing and access
(6) Relocation of parents
(7) Telephone access
(8) Transportation
(9) Methods for resolving disputes.
Visitation Enforcement
If the visitation rights of the non-custodial parent are interfered with by the custodial parent, the non-custodial parent may file a contempt proceeding and compel the appearance of the custodial parent. Prior to the hearing on the contempt proceeding, the court will mandate that the parents attempt to resolve their dispute through mediation. If the court determines there was interference with the visitation, the court may sanction the custodial parent, order make-up visitation and/or alter visitation. If the custodial parent severely interferes with visitation, the non-custodial parent may file a motion to transfer custody to the non-custodial parent.
Mandatory Parenting Class
Under Oregon law, both spouses are required to complete a parenting class early in the divorce proceedings which usually runs for about four hours and deals primarily with ways that parents can help their children adjust to divorce. A divorce cannot become final until both parents have completed the class and filed the appropriate certificate with the court.
Mediation
After both parties have completed the mandatory parenting class, they will be required to attend mediation, where each parent speaks with a neutral third-party hired by the court to help the parties reach an agreement on custody and the parenting plan (the mediator will not discuss financial issues, give advice or provide therapy).
Modifying Custody or Visitation Orders
A custody or visitation order may be modified by either written agreement between the parties (which is signed by a judge and filed with the court) or by the order of a court after a hearing. An existing custody order cannot be modified unless the requesting party shows that a substantial and unanticipated change of circumstances (i.e. custodial parent's inability to care for the children) has occurred since the previous order was filed. The court may also consider other factors (e.g. remarriage or relocation). A change in the visitation schedule may be sought without showing a substantial change in circumstances, providing it is demonstrated that the change is in the child's best interests.
Effect of Relocation on Child Custody and Visitation
Generally, the courts will allow a custodial parent to relocate, even over the objections of the non-custodial parent as long as the move is in the best interests of the child or children. However, is some instances, the court may not allow the custodial parent to relocate or may change custody to the non-custodial parent.
The following factors will be considered by the court: The child's age and connections to school, friends, and other families; The child’s attachment to the custodial parent; Whether the parents previously agreed the child would not be moved; and whether the move was primarily intended to prevent the non-custodial parent from visiting the child.
The Oregon courts have ruled that a move out-of-state by a custodial parent, in and of itself, is not enough to allow a transfer in custody to the non-custodial parent. If the relocation is allowed, the non-custodial parent has the right to modify his or her visitation schedule to make visitation more feasible (probably fewer but longer visits).
Unmarried Couples
Although unmarried couples (both opposite-sex and same-sex pairings) can use the court system to resolve disputes when their relationships terminate, the court does not apply the same standards to these cases that it does to cases involving married couples. For example, the court will not award spousal support to an unmarried couple. With respect to property division, the court will divide the property of an unmarried couple based on what it finds to be the intent of the parties rather than “equitably” as required with married couples. However, when it comes to child custody and support, the rules for unmarried and married couples are basically the same.
Romano Law, P.C. and Michael G. Romano are licensed to practice in the state of Oregon only. The information provided on this website is offered for informational purposes only. It is not offered as legal advice and does not constitute legal advice. Romano Law, P.C. does not seek to represent you based upon your visit to or review of this website. This website may be considered advertising under the rules of the Oregon Bar Association. You should not make legal decisions based upon brochures, advertising, or other promotional materials. If you would like to schedule a consultation to discuss a specific legal matter, please contact our offices.