Child Custody

Who Will Get Child Custody in Dissolution of Marriage?

What is custody?

There are two types of common custody arrangements: joint or sole custody. In a sole custody arrangement, the parent with custody, called the "custodial parent," makes the major decisions and usually has the child most of the time. These major decisions may include such things as the child's religious and educational training, health care, and where the child will live.

The other parent, the "non-custodial parent," is ordinarily able to visit or have "parenting time" with the child. A specific schedule for parenting time that spells out the minimum amount of time and access a non custodial parent is to have must be developed. Under Oregon law, unless the court makes a different order, the non-custodial parent has the right to access the child's school, medical, dental, police, and counselor's records. The non-custodial parent can also authorize emergency medical care. In addition, unless the court determines it is not required, neither party can move more than 60 miles from the other parent without giving the other parent and the court reasonable notice. Oregon has a policy to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the children. Another policy is to encourage parents to share in the rights and responsibilities of raising their children after legal separation or dissolution.

Joint custody in Oregon is generally defined as the sharing of parental decisions about care, control, education, health, religion and residence of the minor child. The term "joint custody" refers to the parents sharing the decision-making regardless of the amount of actual time the child lives with one parent or another. In other words, joint custody does not mean simply alternating where the child lives from time to time. In fact, there may be joint custody, but the child may live with only one parent. An award of joint custody is commonly accompanied by an award of physical custody to one parent and a parenting time schedule to the other parent. Child support may also be awarded where there is joint custody.

Until an order of the court, both parents have the same rights to be with and make decisions for their minor children. Temporary emergency legal custody can be awarded to one parent, without the other parent present, in situations in which a child is in physical danger or with a Family Abuse Prevention Act proceeding in which one parent has been abused by the other. A final judgment of "divorce" or dissolution will grant either sole custody, which means custody to one parent, or joint custody (with or without a physical custody award), which means to both parents and will establish a parenting time plan unless the court finds that parenting time would endanger the health or safety of the child

While the divorce is pending, parents can apply for a temporary order that maintains the current situation of the children and prevents either parent from removing the children from their current situation. This is called a "status quo" order or a "temporary protective order of restraint." After the divorce is filed, parties may also get temporary orders after a hearing regarding temporary custody, parenting time and child support amounts.

You must attend mediation prior to the court hearing your case. Mediation is a process where the parties sit down with a neutral third party, called the mediator, and try to reach a decision regarding custody. The mediator has no power to make a decision regarding custody. The mediator's role is to help the parties reach agreement.

If the parents are unable to reach agreement, the court will decide who gets custody. Because joint custody assumes that the parents are able to work together to make joint decisions regarding the child, the courts will not award joint custody unless both parties agree.

The court's primary consideration in awarding custody is "the best interests of the child." In deciding custody and determining the best interests of the child, the court will consider all of the following factors:

• The emotional ties between the child and other family members;
• The interest of the parties in the child and their attitudes toward the child;
• The desirability of a continuing and existing relationship;
• The abuse of one parent by the other; and
• The willingness and ability of a parent to facilitate and encourage the child's relationship with the other parent.

The court cannot give custody to a party solely because the party is the mother or the father of the child. The court will consider the child's emotional ties or bonds with the person who has been the primary caretaker of the child. The primary caretaker is usually defined as the one who attends to the child's basic needs on a daily basis and this is often the parent with whom the child is living. The court will consider the conduct, marital status, income, social environment or lifestyle of a party only if such a factor is causing or may cause emotional or physical damage to the child. Courts are reluctant to separate siblings.

The court may consider a child's preference to live with a party unless the choice is against the child's best interests. The child's preference will be considered in varying degrees, depending on the child's age and reasons for the preference. Children under 10 years of age may not be competent to testify as a witness. However, they can be shown to be competent if they can be shown to understand what they are testifying about and that they understand what telling the truth means. There is no set age in Oregon for a child to decide where he or she will live. If the parents cannot reach a decision, the judge will decide custody.

In deciding custody, a judge may rely on the testimony of expert witnesses, as well as other witnesses. Expert witnesses may be people such as psychologists, social workers, teachers, psychiatrists, or other individuals who may have specialized training. In some counties, the judge will order a custody study from the court's family services program. The person conducting the study will generally talk with the parents, the children, and in some cases, will actually visit the home environments. The individual may then prepare a written report that contains observations and opinions regarding the parental abilities of the competing parents. This individual may also testify at trial. Private custody studies can also be obtained.

The court may decide not only custody, but also parenting time and child support. The court has a great deal of latitude in ordering custody and parenting time. Most likely the court will make an order that sets forth a specific schedule. The court may order that the child not be removed from the state without notice to the other parent. In special circumstances, where there has been violence or abuse of the child, the court can order that parenting time be "supervised." This means that a designated third party, often a family friend or relative, must be present when the parent visits with the child.

The court may also make parenting time contingent upon certain requirements, for example, that the parent receive counseling, or abstain from drugs or alcohol during the visit. Only in extreme circumstances, where there is a danger to the child, either physical or emotional, will the court deny parenting time to a parent altogether.

An order of the court regarding custody may be modified later if it can be shown that there has been a substantial change of circumstances since the previous court order, and that the change would be in the best interests of the child. Court orders regarding parenting time and child support may also be modified.