What is Custody and How is it Decided?

What is Custody?

 In Oregon, “Custody” of a minor child is different than “Parenting Time” with a minor child. Having custody means the right to make custodial decisions, which are major decisions about the child’s residence, education, health care, or religious training. ORS 107.169. Parenting time means the time that the minor child actually spends with each parent.

 Until a court orders otherwise, all parents are presumed to share “joint custody” of their children, meaning both parents share the right and responsibility of making custodial decisions. ORS 109.030; ORS 107.169. A court must make a custody order if a married parent files for divorce or if an unmarried parent files a Petition for Custody, Parenting Time, & Child Support.    

How is Custody Decided?

During a divorce or custody case, the court can award joint custody or sole custody. A court may only award joint custody if both parties agree to it. ORS 107.169. If the parties do not agree to share joint custody and do not agree on which parent should get sole custody, then the court must decide which parent should be awarded sole custody of the minor child.

 In deciding which parent should be awarded custody, the focus is on the “best interests and welfare” of the child. ORS 107.137. Per Oregon law, courts must consider at least six specific factors when determining what is in the best interests and welfare of a child. ORS 107.137. These “best interests” factors are also relevant to what parenting time should be awarded for each parent. ORS 107.102.

Each ORS 107.137 “best interests” factor is described in detail below:

The Emotional Ties Between the Child and Other Family Members

 This factor considers the relationships that the child has with other members of each parent’s family. The idea behind this factor is that strong emotional bonds between a child and family members should be maintained and encouraged, and that generally the parent who can best do that is the parent whose relation it is.

 “Other family members” could include the child’s grandparents, aunts and uncles, cousins, siblings from a parent’s prior or subsequent relationship, or other relations. If a child has a strong emotional bond with a member of one parent’s family, this factor would weigh in favor of that parent.

 Evidence that can be used regarding this factor includes (but is not limited to) the family member’s testimony, testimony that the parent and the child live or have lived with the family member or that the family member provides child care for the child, and testimony about the family member’s relationship with the child.

The Interest of the Parties in and Attitude Toward the Child

 This factor considers the time and attention each parent is willing to devote to the child, the parents’ schedule and ability to give time and attention to the child, the kind of environment each parent can provide to the child, and each parent’s interest and involvement in the child’s education and health care. See In re Marriage of Morales, 213 Or. App. 91, 105 (2007); Matter of Marriage of Lehr, 36 Or App 23, 583, P2d 1157 (1978); Matter of Marriage of Derby, 31 Or App 803, 807, modified on other grounds, 31 Or App 1333 (1977).

 This factor often weighs in favor of the parent who has historically shown the most interest in and been most involved in the child’s daily life, education, and health care. It can also weigh against a parent who says mean things to the child, exposes the child to domestic violence of other people, has an unsafe living situation, or abuses drugs or alcohol.

 Evidence that can be used regarding this factor includes (but is not limited to) testimony or other evidence regarding the time each parent has spent with the child, showing a parent’s involvement in the child’s health care and education, a parent’s living situation, that a parent has abused drugs or alcohol while caring for the child, and inappropriate statements made by a parent to or in front of the child.

The Desirability of Continuing an Existing Relationship

 This factor considers how close the child’s relationship is with each parent and whether that relationship should continue. See In re Marriage of Morales, 213 Or. App. at 105–06. In general, close relationships with a parent should be encouraged to continue as much as possible.

 Evidence that can be used regarding this factor includes testimony or other evidence regarding the amount of time a parent has spent or lived with the child, therapy or other treatment a child has received due to abandonment by or an unhealthy relationship with a parent, and any other evidence regarding the emotional relationship the child has with each parent.

The Abuse of One Parent by Another

 This factor applies when one parent has physically abused, physically threatened, or sexually abused the other parent. ORS 107.105. Emotional, verbal, and financial abuse is not covered under this factor, although it is relevant to other factors (see below). There is a rebuttable presumption that if a parent has committed abuse, they should not be awarded sole or joint custody of the child. ORS 107.137(2).

  If a parent has obtained a Family Abuse Prevention Act (FAPA) restraining order against the other parent, the parent has also established the rebuttable presumption that the abusive parent should not be awarded custody. In re Marriage of Ringler, 221 Or. App. 43, 52 (2008). The rebuttable presumption can also be established by offering evidence during a custody trial that the parent was abusive, such as testimony from the victim, pictures of injuries, doctor’s reports, or other documentation of abuse.

 The presumption against awarding custody to a parent who committed abuse can be rebutted by showing that they regret the abusive conduct and have satisfactorily participated in services intended to make sure that no abusive incidents occur again. In re Marriage of Morales, 213 Or. App. at 107–08. Evidence that can be used to rebut the presumption includes (but is not limited to) testimony from the abusive parent, certificates of completion from a batter’s intervention program or other treatment, and testimony from third parties about the abusive parent’s rehabilitation efforts and expressed remorse.

The Preference for the Primary Caregiver of the Child, if the Caregiver is Deemed Fit by the Court

There is a strong preference to awarding custody to the parent who has historically been and is the child’s primary caregiver, so long as that parent is deemed fit by the court. See ORS 107.137(1)(e); In re Custody of MT, 237 Or. App. 192, 204 (2010). Caregiving activities include providing the child with morning routines, meals, bathing, bedtime routines, play and activities, coordinating the child’s health care, education, and social activities, going to the child’s health care appointments and educational activities, and all other activities associated with providing daily care to the child.

 Sometimes parents equally share the responsibility for such caregiving activities, in which case this factor will likely not weigh in favor of either parent. Other times one parent provides most caregiving activities to a child, and this factor would weigh in favor of that parent if that parent is deemed fit by the court. A parent who has been the primary caregiver may be considered unfit if they are unable to meet their child’s needs or have neglected the child, have abused the child or exposed the child to dangerous situations, abuses drugs or alcohol, and in other situations.

Evidence that can be used regarding this factor includes (but is not limited to) testimony or other evidence regarding the daily caregiving activities performed by each parent, DHS investigations or findings regarding abuse or neglect, abuse that has taken place in the child’s presence, and that a parent has abused drugs or alcohol while caring for the child.

The Willingness and Ability of Each Parent to Facilitate and Encourage a Close and Continuing Relationship Between the Other Parent and the Child

 This factor is the one most likely to get a parent in trouble with the courts. It considers whether each has made sure, and will continue to make sure, that the other parent gets parenting time with a child and maintains a good relationship with the child. Also relevant is how the parent speaks to or about the other parent in front of the child. A parent’s willingness to keep the other parent updated about the child’s well-being, health care, and education is also considered.

 Courts are not permitted to consider this factor for a parent who shows that the other parent has sexually assaulted them or engaged in a pattern of abuse against them or the child AND that a continuing relationship with the other parent will endanger the health or safety of either parent or the child. ORS 107.137. However, in practice this is a very difficult showing to make. Even when there has been a history of abuse by the other parent, a parent may still be expected to do their best to facilitate a close and continuing relationship between the abusive parent and the child.

 Evidence that can be used regarding this factor includes (but is not limited to) testimony or other evidence regarding efforts to facilitate the child having visitation or parenting time with the other parent, a parent withholding or hiding the child from the other parent, communications between parents regarding the child, and a parent’s communications to or in front of the child about the other parent.

 Although other relevant factors or circumstances can be considered by the judge, these “best interest” factors are the ones that a judge has to consider when deciding what is in the best interests and welfare of a child. If the matter ends up in trial, parents are wise to present specific evidence or testimony that addresses each of these factors.

Need Help?

Do you have questions about issues of custody or parenting time or how the “best interests” factors may apply to your case? The Commons Law Center can help! Give us a call at 503-850-0811 to set up a meeting with an attorney.

The Commons Law Center Blog is for information purposes only. It is not legal advice.

posted April 24, 2020

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