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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