Category: Custody

Divorces, especially with children, are often complex and draining. It can feel as though you had just come to an agreement with your former spouse as to parenting time, and then something changes and the terms of the agreement need to be modified. Perhaps, a parent is moving further away or is experiencing a change in their work schedule, which necessitates a new parenting plan. Perhaps the schedule you came up with when your child was a toddler is no longer appropriate now that your child is in school. Whatever your reasons are to adjust the current status, it is important to understand all the steps required to modify parenting time.
In Oregon, it’s a requirement to have a parenting plan in any divorce involving children. During the divorce, you and your former spouse likely created a parenting plan which determines when you and your former spouse spend time with your child. In an attempt to modify parenting time, it is always more beneficial if you can reach a compromise with your spouse, but this is not always possible.
If you are unable to reach an agreement with your former spouse, then you must file a motion with the court requesting a change to the parenting plan. The standard for modifying just parenting time (not custody) is “the best interests of the child”, so you must explain to the court why your proposed changes are in the bests interests of your child. With an experienced Portland modification of child custody attorney to help, you will have the tools at your disposal to obtain the parenting time that you want.

Grandparents, step-parents, foster parents, and other extended family members often take on important roles in raising children. Usually, these relationships work out well and the children benefit from having multiple adults who care for them, but what happens when there’s a dispute about custody or visitation? Does the grandparent or other third-party have any rights? The answer depends on the nature of the relationship between the adult and the child.

If the grandparent/third-party wants to seek custody of the child, she must first prove that she’s had a “child-parent relationship” with the child within six months of the time of the court filing. What is a child-parent relationship? Oregon law defines it as a relationship in which the adult either had physical custody of the child or resided with the child and provided the child with basic necessities such as food, clothing, shelter, care, education, and discipline. It is a relationship that “fulfilled the child’s psychological needs for a parent as well as the child’s physical needs.” ORS 109.119(10)(a).

If the grandparent/third-party wants to seek visitation, rather than custody, she must first prove that she has an “ongoing personal relationship” with the child. An ongoing personal relationship is defined as a “relationship with substantial continuity for at least one year, through interaction, companionship, interplay, and mutuality.” ORS 109.119(10)(b).

Once the grandparent/third-party is able to prove that she has either a child-parent relationship or the ongoing personal relationship, she must next prove that she can rebut the presumption that the legal parents act in the best interest of the child. Since grandparents/third-parties are not legal parents, they are viewed differently than legal parents in custody and visitation cases. The law presumes that if a legal parent wants to limit contact between a grandparent/third party and a child, that the legal parent in acting in the child’s best interest. It’s up to the grandparent/third-party to prove this is not true. The court looks at various factors to determine whether a parent is acting in the best interests of their child. Some of those factors include: whether the legal parent has encouraged or fostered the relationship between the grandparent/third-party and the child; whether the legal parent is unable or unwilling to care for the child; whether the grandparent/third-party currently is or has been the child’s primary caretaker; and whether the legal parent has unreasonably denied contact between the grandparent/third-party and the child.

Even if the grandparent-third-party is able to prove that the legal parent is not acting in the best interests of the child, there is still one final step in the process. The court must examine what is in the best interests of the child. In this step, the court looks at the same factors that it looks at in a custody and parenting time case between two legal parents. These factors are discussed in more detail in our blog post on custody. http://www.jensen-leiberan.com/blog/category/family-law-attorneys/custody/

Overall, grandparent/third-party custody and visitation cases are legally complex and it is important that you have an experienced family law attorney advocating for you if you are involved in this type of case.

Throughout the course of a marriage, people change, but few things can be as jarring as when a spouse comes out and declares their homosexuality.

“While the acceptance of gay and lesbian rights in Oregon has rightly been a cause for celebration, one of the by-products of this change is that more and more children in marriages where one parent comes out are in a custody dispute,” says Portland attorney Deanna Jensen, who’s firm frequently takes cases involving LGBT custody issues.

 

With the passage of a series of laws at the state and federal level, child custody issues should be treated just as they are in heterosexual divorce proceedings.  However, despite the letter of the law, when one of the parties in a marriage dissolution comes out as gay, there’s an increased likelihood that that  person may experience some form of bias.

 

“Although for several years now our Oregon courts have been very even-handed and often sympathetic when dealing with the LGBT community, it is not uncommon for a party and/or an attorney to present the case involving a parent who has come out with bias and derision.  This makes the dissolution process very emotionally difficult, leads to more litigation, and is often more costly for the family,” adds Jensen.

 

If you are concerned that you are experiencing bias because you have come out as gay in a heterosexual marriage, it’s best to consult a Portland attorney who has experience in LGBT custody issues.  You can get an attorney referral from the National Center for Lesbian Rights at www.nclrights.org or research possibilities on any number of other specialized data bases.

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.

 

 

 

 

Jensen & Leiberan Attorneys at Law

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