Whenever the welfare of children is involved during a family law dispute (initial dissolution or modification of prior judgments), one or both of the parents may seek to gain sole custody of the child or children. There are various state custody laws in place in Oregon and a good custody lawyer in Portland can help you unravel them.
In Oregon, at the outset of the dissolution process, both parents are the joint legal custodians of their children. However, there is the potential for a court ruling that grants temporary legal custody to one or the other of the parents, with a final determination of legal custody made at the time of the divorce. Either parent can seek temporary custody, and the decision to award temporary custody, or not, is within the discretion of the court based on the facts of the case and a list of statutory factors related to the child’s best interest. For example, if there has been physical abuse by one parent of the children or of the other parent, the abuser will not be awarded temporary custody of the children, and likely not be awarded custody at the conclusion of the case.
Oregon courts will not make a final award of joint custody to the parents unless both parents agree to joint custody. If the parents do not agree, the court will give sole custody to one of the parents based on a determination of what is in the children’s best interest.
What is custody? It is the right to make major decisions for your child(ren). Major decisions include where the children live, where they go to school, who their health care providers are, major medical decisions like surgery, day care providers, religion, joining the military and so forth. Sole custody means that the decisions for your children involving these matters rests with the parent who has sole custody. Joint custody means that the parents make these decisions together. The Oregon legislature determined that if the parents can agree on joint custody, it is likely they can make joint decisions for their children. On the other hand, if they cannot agree to joint custody, it is likely they will not be good at making joint decisions for their children, so only one parent will have that right.
How is custody decided when parents don’t agree? The court has a list of statutory factors it considers in deciding which parent should have custody. The list is not exclusive and the court can look at other factors that are important to the children’s best interests, but it always begins with these: (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 for the primary caregiver of the child, if the caregiver is deemed fit by the court; and (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child unless a continuing relationship with the other parent would endanger the health and safety of either parent or the child.
What is parenting time (or visitation)? It refers to the amount of time each parent has with his/her children. It can be anywhere from a 50/50 split of time to some other percentage split. The parents can design their own parenting plan taking into account holidays, days off from school, Winter, Spring, and Summer breaks and so on. If the parents cannot agree on a parenting plan, the Court will impose one after taking evidence from each parent and any other persons or experts about the needs of the children.
Custody and parenting time judgments are modifiable based on a substantial change of circumstances affecting the welfare of the children.