Joint Custody

As a divorce lawyer, I am constantly discussing child custody issues with clients.  One of the first questions that I often receive is “what does joint custody mean and how can I get it?”  ORS 107.169 is the Oregon statute that defines joint custody.  “[J]oint custody” means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care and religious training.”  Basically, the idea is that the parents will work together to make all decisions regarding the child even though they are divorced or are having a court decision made regarding their child.

A court cannot order joint custody.  The parties have to agree to it.  The legislature figures that if people have to have a court make a decision regarding the children then they will not be able to work together regarding their child. 

The parties have the right to define the scope of joint custody.  Under the statute, “An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.”  This means that if a parent has a strong concern about the other parent’s ability to make a decision for the child regarding a specific issue (i.e. a difference of opinion regarding private vs. public school) then the parties can agree to have only one parent have decision making on that issue. 

Joint custody has no effect on parenting time or child support.  An agreement to share custody does, however, usually lead to the parties being able to reach a settlement regarding the other issues as well.

Joint custody is subject to modification by either parent.  The statute provides:  “Modification of a joint custody order shall require showing of changed circumstances and a showing that the modification is in the best interests of the child such as would support modification of a sole custody order. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order.”  The parties must clearly demonstrate these requirements to the court. In a recent trial of mine where I represented the children, both parties asked for a modification from joint to sole custody.  The court refused to grant the modification because neither party actually testified to any difficulty in making decisions jointly.

At the end of the day, joint custody is an important emotional decision.  It is important for children to have a united parental front even if the parents are not together.  It is important for both parents to believe that they have input into their child’s life.  

Before making a decision regarding custody, I suggest that a parent have a consultation with an attorney to fully understand the issues at play.

About Daniel Margolin

Daniel Margolin is a founding partner of Stephens & Margolin LLP and a Portland, Oregon native. His practice focuses on all aspects of family law litigation. Dan applies his litigation expertise to provide additional expertise when assisting clients with Family Law Appeals and Collaborative Divorce matters. To find out more or contact Daniel Margolin, visit Stephens & Margolin LLP
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12 Responses to Joint Custody

  1. Sam hasler says:

    Your case is the polar opposite of my usual joint custody cases – they agreed to it to get the divorce done and then find out they cannot cooperate for anything.

  2. greenmama says:

    I have joint- 50/50 custody of my 9 year old son with his father. Here’s my question…His dad signed him up to be in a fall baseball league. There is a tournament in Redding, CA during a weekend that he has him. He is unable to take him and made arrangements for him to go with another family against my wishes. Its my understanding that this is a big enough decision that it would require us to be in aggreement to let our child go out of state without a parent???? Thank you for your time- its greatly appreciated!

  3. Jane says:

    I have joint legal custody w/ my ex husband, he is the primary caregiver. I am behind on financial agreements and he tells me when I start paying in what I owe him then I can make some of the decisions. He moved more 60 miles away from me 3 years ago and came back after living there for 1 yr. Now he is moving out of state which is more than 60 miles from me again. There was no consalting me on the matter, just said this is what he is doing.He has been this way about everything with the kids.Plus I ws told about it him going and laying down w/ my 10 yr old daughter in a seperate area of the house and going to bed w/ her till her step mom comes and tells her it is time to go to bed. There is alot more but this the basic drift of my concerns. Please get back to me on this I would greatly appreciate it. Thank you!

  4. Heidi dickie says:

    we were divorced in alturas california where custody and the divorce went thru court now 5 yrs laters i have moved to lake county oregon have been here 3 yrs does he have to file for custody here in oregon

    • admin says:

      Ms. Dickie. Oregon has adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) which sets forth the requirements for initiating or modifying a child custody determination in Oregon. If a parent still resides in the original state, in your case California, then the Oregon court does not have jurisidiction to modify the initial determination absent certain circumstances. You should consult an attorney to understand whether some of those extenuating circumstances exist in your case.

  5. jenny says:

    Iam about to serve papers to my ex for joint custody.. I’m just woundering if I will be able to get it because I know from him telling me that he does not agree to that and he wants sole custody. Can the courts still award joint custody for the best intrest of the child even if the other parent does not agree to that. As of now we are sharing the kids equally as it is and make decisions so I think its more about his reputation and not the kids.. I also know if the legislation agreed to joint custody that he would abide and it would go smoothly as it already is.. please tell me what u think in this case. Thanks. Medford oregon

    • admin says:

      Jenny:

      The court has no power to award joint custody of a child if either parent objects. If one parent doesn’t want joint custody, the court must decide between the parents as to who should have sole custody. You should call our office or a local lawyer’s office to discuss your specific rights.

  6. P. Carrow says:

    I have joint custody. My 8 yr old daughter is in mental therapy. The papers for the joint custody were drawn up in Oregon. The mother and child moved to Washington state years ago and then I moved there years ago as well, she has never moved the paper work to Washington state. The therapist would like to have appointments so that my daughter and I could work together alone with the therapist. The therapist thinks that she would have to be granted permission by the mother (she resides in her home most of the week) in order for my daughter and myself to get therapy. Does the therapist need permission from the mother or can I, do to joint custody just set an appointment and she and I can attend without her agreeing? Also since we all reside in Washington state is it true that the paper work in Oregon no longer holds any legal grounds neither state laws apply and I can set an appointment and attend with my daughter and the therapist has no legal restrictions that would hold up this therapy by the mother? Based on the fact neither state laws govern over my daughter at this time?

    • Having the legal right to do something doesn’t always mean it’s the best course of action. Unless your judgment addresses which parent has the authority to provide health care, under a joint custody arrangement, either parent should be authorized to get counseling for the child. That said, it makes sense to discuss the therapy with the Mother. Regarding your Oregon judgment, it’s valid in other states. You cannot enforce the judgment in Washington unless you take steps to register it, but a move across the Columbia does not invalidate an Oregon judgment.

      Many of your questions seem strategic in nature, and you would likely benefit from speaking to a lawyer. I encourage you to call a Washington State lawyer to discuss your case.

  7. This is helpful information – thanks for sharing.

  8. Tina says:

    My fiance has joint custody of his kids, his 14 year old daughter now wants to come and live with him so the mother is grounding her and not even letting her come for visits. How do we change custody?

  9. …I might add that in Oklahoma Family Court, the judges have to assume from the beginning of the case that joint custody is in the children’s best interest.

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