Oregon law directs that the court award custody “in the best interests of the child.” In making this determination, the court is instructed to consider the following factors when deciding which parent will be awarded custody of minor children:
- The emotional ties between the child and other family members;
- The interest of the parent in the child and the parent’s attitude toward the child;
- The desirability of continuing an existing relationship;
- The abuse of one parent by another;
- The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
In practical terms, this means that the parent who has accepted primary responsibility for bringing up the child in the past will probably be awarded the care and custody of the child in the future provided that they encourage ongoing contact between the child and their former spouse. The non-custodial parent will be allowed reasonable rights of visitation. Oregon law calls this visitation schedule a “parenting plan.”
Joint Custody vs. Sole Custody
Joint custody is an award of the child’s legal custody to both parents with a specific provision made for his or her primary place of residence. It assumes that each parent has an equal say in making major decisions that impact the child’s life. Joint custody does not necessarily mean equal parenting time. The court is only allowed to order joint legal custody if both parties agree to the award. In general, joint custody will work only if both parents communicate and cooperate with each other. Joint custody can be terminated at any time simply by the request of either parent. At that time the court will be required to determine which parent should be awarded sole custody as well as the non-custodial parent’s parenting time schedule.
Conversely, an award of sole custody means that one parent has the sole right to make vital decisions regarding a child’s education, religious training, health care, and the like. Sole custody is far more common due to the agreement and cooperation required to make joint custody work and the ease of termination of joint custody. Disagreement over custody and time-sharing is guaranteed to put you right in the middle of a contested and expensive divorce.
Parenting Time (Visitation)
The court will usually approve any parenting plan (visitation schedule) agreed to by you and your spouse. A typical schedule is to alternate weekends and specify time during the summer and holidays. We encourage liberal time-sharing except in extraordinary circumstances.
Every county has a model parenting plan that can be used by those families that do not want to write their own. A copy of Marion County’s default rule can be found on this site as an example. Contrary to popular belief, the model plan is not a statement of the law, a minimum or a maximum time allowed between the child and the non-custodial parent. It is exactly what it says it is: a model plan that can be adopted or ignored at your own discretion.
Mandatory Parenting Class
Oregon requires that both you and your spouse complete a parenting class early in the divorce process. Information, including a course schedule, for the Marion County required class can be found at https://cope-ccioregon.org/. The typical class lasts four hours and covers topics including ways that parents can help their children adjust to divorce and how to make shared parenting time better for the children. The court will not allow your divorce to become final until both parents have completed the class and filed the appropriate certificates with the court.
Mediation Regarding Children’s Issues
You and your spouse will be required to attend mediation once each of you has completed the mandatory parenting class. Mediation is a procedure in which both parents speak with a neutral third-party hired by the court to help you reach an agreement on custody and to set a parenting schedule. The mediator will not discuss financial issues, give advice, or provide therapy. Approximately 80% of our clients that enter mediation leave the process with an agreement regarding the children. Our success rate is high because our clients spend time with us preparing for mediation before entering the process.
Modification of a Prior Custody Order
After a custody judgment is entered, the court will not modify its judgment unless the parent seeking to modify custody proves two elements. The first element is proof that after entry of the original judgment, there was a “substantial” change of circumstances regarding ability and/or willingness to properly care for the child. Second, the party seeking modification must prove that it is now “in the best interest of the child” to change custody. The factors the court uses in deciding what is in the best interest of the child are the same factors that the court uses to make an initial custody decision, discussed above.