Child Custody in an Oregon Divorce

WHAT IS CUSTODY?

Oregon child custody laws involves three different aspects, each of which the court will decide in your divorce:

  • • LEGAL CUSTODY determines who makes major decisions for the children.
  • • PARENTING TIME (previously called “visitation”) determines how much time the children spend with each parent.
  • • PARENTING PLAN terms and conditions govern the particulars about how parenting time with each parent be exercised and how the parents are to behave with each other and with the children.

LEGAL CUSTODY

Oregon child custody laws define “legal custody” as the decision-making ability of the parents in the lives of the children. This can be sole or joint/shared. A parent with sole legal custody is solely responsible for deciding major medical decisions for the children, where the children will attend school, whether and where they will attend church, etc. Parents with joint legal custody in Oregon must agree on these matters, or have a court or mediator decide. Parents with no legal custody may still make everyday decisions (such as sports activities and minor medical decisions) for their children while the children are with that parent.

PARENTING TIME (A.K.A. “VISITATION”)

Parenting time (previously called “visitation”) is the right of one parent to spend time with the children, especially if that parent does not have legal custody of the children. If one parent is awarded sole legal custody, then the other parent is usually entitled to “reasonable parenting time” under Oregon child custody laws. Oregon law allows for any parenting time arrangement that meets the children’s needs to be ordered.

HOW DOES THE OREGON FAMILY LAW COURT DETERMINE CUSTODY?

Oregon child custody laws are intended to determine what is in the best interests of the children. Your minor children will likely have frequent and continuing contact with both parents, so long as each parent will act in the best interests of the children. However, the court will not order joint legal custody unless you and your spouse agree to jointly share that responsibility. The court will not order joint legal custody unless both parents agree to that arrangement. If the two of you don’t agree to joint legal custody, then Oregon child custody law requires that one parent have sole legal custody and that the other parent have a right to reasonable parenting time (visitation).

Custody in Oregon is determined using the following factors:

  • • Your children’s emotional ties to you, your spouse and other family members living in or near your homes;
  • • You and your spouse’s attitudes toward your children;
  • • Your children’s existing relationships with you and your spouse;
  • • Any abuse of one parent by the other;
  • • A preference for awarding custody to your children’s primary caregiver, as long as that person is a fit parent; and
  • • The willingness and ability of each parent to encourage your children’s close and continuing relationship with the other parent.

The court usually does not consider:

  • • Your income (or that of your spouse);
  • • Your conduct (such as behavior that led to the divorce);
  • • Whether either of you have remarried; and
  • • Your lifestyle.

The Oregon family law court will consider these last factors only if they can cause emotional or physical damage to your children. For instance, one Oregon family law court decision held that a parent could not have custody if he/she was a current illegal drug user, but that his/her past drug use was irrelevant to custody.

Parent Education Classes

If you have minor children with your spouse, the Oregon family law court will require both of you to attend a mandatory parenting class before you can be divorced. Your children do not attend, and you may attend a separate class from your spouse. The classes are group lectures that inform parents about the impact of family restructuring on children in divorce and custody cases. There is a small charge for the classes. The classes usually cover:

  • • Children’s developmental stages
  • • The emotional impact of a divorce or separation on children
  • • The effect on children of parental conduct
  • • Strategies for better co-parenting during and after a divorce or separation
  • • Custody, parenting time and shared parenting plans
  • • Mediation and conflict resolution

Parenting Plans

Your divorce will include a parenting plan. You may have a “general” or “detailed” parenting plan.

WHAT IS IN A GENERAL PARENTING PLAN IN OREGON?

A general parenting plan describes the minimum amount of parenting time and access that the non-custodial parent will have, and how you both will share parenting responsibilities. For instance, it may state that the children will primarily live with you and that they will spend a certain number of overnights per month with your spouse. Under a general parenting plan in Oregon, you and your spouse will have to work out the details of parenting (such as exactly which nights the children will stay with which parent) afterwards, informally. You should use a general parenting plan only if you expect to be able to co-parent and negotiate comfortably with your former spouse for many years to come. It is difficult to go back to court to enforce the informal details of a general parenting plan, because the court order itself is phrased broadly and simply.

WHAT IS IN A DETAILED PARENTING PLAN IN OREGON?

Detailed parenting plans describe your children’s residential schedule (including weekends, holidays, birthdays and vacations) in more detail. In Oregon, detailed parenting plans may also include provisions for decision-making and responsibility, information sharing and access, relocation of parents, telephone access, transportation between homes, and methods for resolving disputes.

IS THERE A STANDARD PARENTING PLAN IN OREGON?

Many Oregon counties have adopted “model” parenting time guidelines, which often have schedules that apply for children of different ages. One- or two-year-old children, for example, may be recommended to have one or two visits per week, but no overnights. Children six years old and over may be recommended to have alternating weekends plus a two-week summer visit with the non-custodial parent. By the time children are teenagers, parenting plans should consider the children’s own employment and activities.

But these are guidelines, not requirements. The Oregon family law court is likely to approve any parenting plan that is agreed upon by both you and your spouse, no matter how “non-standard” it is. For instance, you and your spouse might agree on a 50-50 schedule, with your children alternating weeks between your homes.

If you cannot agree on a plan, the Oregon family law court may refer to its guidelines, but should adapt them for your particular family’s needs. For instance, if you and your ex-spouse will live in separate states, then the court might ignore the guideline for weekend visits and instead order most parenting time to take place during school breaks.

WHAT IF THERE IS ABUSE?

If there are safety or abuse issues in your marriage or with your children, you may wish to consider a safety-focused parenting plan. In Oregon, you have three main options.

    • First, if you feel your child cannot be safe alone with your spouse, then your plan might include supervised parenting time or even no parenting time. In order to require that your spouse have only supervised time, you must show that there is a clear danger to your child. In practice, this is often difficult to prove unless there is clear evidence (such as police or doctors’ reports) of child abuse. • A second option, if you feel that your child can safely spend limited time with the other parent under certain conditions, is for no overnight parenting time. • A third option protects you rather than your child. If you feel your child can safely spend time with the other parent, but you are not safe when the other parent is with you, then your plan might allow overnight parenting time but require drop off and pick up to take place in a public place (even a police station) rather than at your homes. You may also need a restraining order against your spouse.

Parental Rights

In addition to the parenting time and decision-making provisions detailed in your parenting plan, both parents always (unless ordered by the court) have certain rights in Oregon:

  • • To inspect and receive school records and to consult with school staff concerning your child’s welfare and education;
  • • To inspect and receive governmental agency and law enforcement records concerning your child;
  • • To consult with any person who may provide care or treatment for your child and to inspect and receive your child’s medical, dental and psychological records;
  • • To authorize emergency medical, dental, psychological, psychiatric or other health care for your child if the custodial parent is, for practical purposes, unavailable; and
  • • To apply to be your child’s conservator, guardian ad litem, or both.
  • In practice, enforcing these listed rights requires only that you ask for this information. At your child’s school, ask when parent-teacher conferences are scheduled and ask that your child be assigned two conferences (one for each parent). Ask your child’s teacher to set up a second cubby or folder with second copies of report cards and school flyers for you. Call your child’s doctor and ask for a copy of his or her medical chart.

    Note that parents who are involved in family counseling with their children, or whose children are in counseling themselves, may need legal advice regarding the ability of the other parent to obtain treatment notes and other records from the counselor.

    The Oregon child custody laws allow both parents to access this information from third parties (like doctors and schools). The law does not require one parent to provide the information to the other parent. However, one parent’s unreasonable refusal to provide such information could be punishable by the court, depending on the circumstances.

    Both parents, regardless of custody, also have certain responsibilities to the other parent after divorce according to Oregon child custody laws. You must both provide current addresses and contact telephone numbers to each other. You must also immediately notify the other parent of any emergency circumstances or substantial changes in the health of your children.