Custody in Divorce Cases

How is custody decided?

Legal custody means having the legal responsibility for caring for a child. The divorce decree or court order will say who gets custody. Either parent can get custody. If the parents agree between themselves on custody, they can avoid a long and expensive court case. But if they can't agree, the judge will hear both sides and decide what's best for the child, not the parents. The judge will consider many factors such as:

• Emotional ties of the children to parents and other family members;
• Attitude of the parents towards the child;
• Whether one parent has abused the other;
• Any criminal record of the parents;
• The parents' emotional stability;
• Home environment;
• The child's age, sex, and health;
• Whom the child wishes to be with (if the child is old enough to make a good decision).

Judges will often award permanent legal custody to the parent who has had physical custody of the child. Judges do not like to change the living situation of a child who is doing well.

What kinds of custody arrangements are possible?

One parent gets legal custody of the children. The other gets parenting time rights. This is the arrangement in most cases.

• Both parents have joint custody. With joint custody all or most decision-making about the child is shared. Joint custody does not mean that the child must spend equal or substantial time in each parent's home; a joint custody order can say that one parent's home is the child's primary home and that the other parent gets parenting time. Child support can still be awarded if there is joint custody. In Oregon a court cannot order joint custody unless both parents agree to all the terms.
• The children are split between the parents. Judges usually don't order this kind of custody arrangement. They are worried that it may be harmful to the children to separate them.
• Rarely, a non parent can be awarded custody in a divorce, or in a separate lawsuit.

What if my spouse and I can't agree about custody of our children?

You must mediate. Mediation is one or more free, private counseling sessions in which a trained person tries to help you and your spouse reach an agreement about your children. Many counties offer this service through the courts.

The judge might also order a custody or parenting time study. This is an evaluation of the parents by a trained counselor or psychologist who will make his or her recommendations available to the judge. Only a few counties offer a free evaluation. Otherwise, a custody or parenting time study is usually not ordered unless one or both parents can afford the cost.

Without mediation or a study, it is up to you and your spouse (or your attorneys if you have them) to settle on custody terms. If you cannot agree, the judge will decide.

How can a non parent get legal custody of my child?

Sometimes a judge will grant legal custody to a non parent, usually a relative or stepparent who has been living with your child and providing day-to-day care on a regular basis.

A non parent can request custody in your divorce case, any other court case involving the child's custody, or in a separate lawsuit. These are called "psychological parent" cases. Usually, a judge cannot award custody to a non parent unless that person has filed legal papers that ask for custody.

Can the judge deny a parent custody just because he or she is a homosexual?

No, this cannot be the only reason for denying custody. If homosexuality will be brought up in a custody case, you definitely need a lawyer.

Without a custody order, what rights do I have?

Married parents have equal rights to have custody of the child until a court order changes this. If your child lives with you, you may be able to determine many day-to-day issues about your child, but you cannot force your spouse to return your child after a visit, or enforce any other agreement, unless you have a court order.

When parents are unmarried and paternity has not been established, the mother has legal custody and the father has no custody or parenting time rights. When parents are unmarried and paternity has been established by signatures on the birth certificate or in a lawsuit (often handled by the Support Enforcement Division or the District Attorney), custody might have been granted by the law to the child's physical caretaker, even though no court order says so.

Can I get custody without filing for divorce or bringing a separate custody case?

Yes, but only temporarily. If you have been a victim of abuse within the last six months and your children have ties to Oregon or need emergency protection, you should be able to get an emergency restraining order with custody under the Family Abuse Prevention Act. These orders usually last for one year. But if the other parent requests a hearing, the judge might change custody or parenting time terms, depending on the evidence. You will eventually need a permanent decision about custody in a divorce or other custody lawsuit.

Can I get the police to help me get my child back if I had an agreement with the other parent about child custody?

No. The police will help you only if you have a court custody order. Even with a custody order, you must get permission from the court to let the police or sheriff enforce your order. If you have filed for a divorce and reached even a temporary agreement, it is a good idea to have the judge approve the agreement and make it a court order. If your spouse is not following the agreement, you should see an attorney immediately.

Can I represent myself in a custody dispute?

Yes, but it is a good idea to get a lawyer. If the other parent has a lawyer, you definitely will need one.

What if a child disagrees with his or her parents about custody?

Once a divorce starts, a child who disagrees with the parents over custody or parenting time arrangements has a right to have a lawyer. (But the parents are responsible for paying for an attorney that is asked for by a child in a custody case that does not involve juvenile court.)

Even if a child doesn't have an attorney, the child's wishes can be told to the judge. Sometimes the judge will talk to the child directly in the judge's office, with only the lawyers (not the parents) in the room. In deciding custody, a judge will seriously consider a child's wishes only if the child is mature enough to make a thoughtful choice, perhaps age 13 or older.

If I have legal custody, can I move out of Oregon with my children?

You should be able to move out of state with your child unless a custody order or protective order says that you cannot. But even if there are no restrictions in your orders, the other parent can stop you from moving the child by getting a new court order later. A judge will order a parent not to move the child if the judge finds that the move would not be in the best interest of the child. You must still allow parenting time to the other parent if you move. Some adjustments will have to be made and a court will decide if the parents can't agree.

What rights do I have if I don't have legal custody of my children?

Unless a court orders differently, a parent who does not have legal custody does have the right to have parenting time with the child, to know about how the child is doing in school and to have information about the child's health.

Can a custody order be changed?

Yes, if the parent without custody proves to the judge that after the last custody order something happened to make it necessary to change custody — for example, the child was neglected or abused since the time of the last custody order. If there are no new problems in the child's home, the judge will probably not change a custody order even if the parent without custody can now provide a "better" home.

Can I do anything to prevent my child from going to the other parent when I die?

Your child's custody usually goes to the other parent if you die. But after your death the judge must consider any notarized document you left. You can have a lawyer prepare an affidavit that names a person you want to take care of your child or you can state your custody wishes in a will. You can also write a letter that says who you want to take care of your child and that gives specific reasons why the other parent should not have custody. The letter must be notarized to be effective. If the other parent decides to fight your wishes, the judge will have the final say.

The other parent has taken our child and there is no court order giving custody to either one of us. Can I go to jail for taking back the child?

Probably not. Usually both parents have equal custody rights if there is no custody order. But in two situations without custody orders, unmarried parents do not have equal custody rights: (1) if paternity has not been established the father has no custody rights; and (2) if paternity has been established by signatures on the birth certificate or in a lawsuit, the child's caretaker might have automatic legal custody even if the court order does not say this. In these cases, the parents do not have equal rights to take the child even though there is no custody order.

But even if you have the right to take the child, you should not do anything that might harm the child. You should also be careful not to do anything illegal, such as trespassing or assaulting someone. Avoid taking the child if you possibly can. Try counseling or mediation, or try to get a temporary custody order from the judge. Most judges disapprove of one parent taking a child who has been living with the other parent for a long time unless there is an emergency situation like abuse or neglect.

What if I have legal custody and the child's other parent takes our child without my consent?

You should see an attorney immediately about your options. Allowing your child to remain with the other parent for an extended period of time may reduce your right to get your child back. The following are some options for self help, and for what an attorney may be able to do for you:

• You can try to get the child back yourself if this will not put you or the child in danger.
• You can get the local police or county sheriff to help you get your child back. In a few places the police or sheriff will go with you to get your child if you have a certified copy of your custody order. In most places you will have to go to court to get a "writ of assistance," which tells the county sheriff to return your child to you. Some legal services offices can help you file a writ of assistance.
• You can also ask the judge to find the other parent in contempt of court for violating the custody order. The judge can order fines or jail time until the other parent returns the child. You will need an attorney for this.
• You can ask the District Attorney to bring criminal or contempt charges because the other parent has interfered with your custody rights. If the District Attorney's office decides to bring such a case (it is up to them) and wins, the other parent could be jailed and required to repay any money you spent to find the child or get legal help.

I am unmarried and the person I was living with has taken my child but is not the child's natural parent. What can I do?

You can call the police. You can also try to get the child back by talking to the person. But you should not do anything that will be harmful or dangerous to the child.

You can also hire a lawyer to file a lawsuit against the person or ask the District Attorney to bring criminal charges because the person interfered with your parental rights. (It is up to the District Attorney's office to decide whether or not to bring charges.)