I am the biological mother of my seven-year-old daughter. I artificially inseminated at home; my ex legally adopted her when she was 6 months old. We split up a year and a half ago and have been sharing custody of her since then. I have had my daughter more than 50% of the time since we split up. My ex is now asking for a 50-50 arrangement. I don't think this is in the best interest of my daughter. Do I have a chance at gaining sole custody with my ex getting alternating weekend visitations? If I were to move to Washington State, would the adoption still be legal?
The courts look at several factors when determining what is in a child's best interest. They are set forth in ORS 107.137. There is no way to tell you your chances in this forum because of the limited information. But there are two types of custody, legal and physical (parenting time). Even if you had sole legal custody, a 50-50 parenting time schedule is possible. If the adoption was legal it would be recognized in Washington. Frankly, a court would not be happy about a parent attempting to move to keep the child from the other parent. One of the best interest factors is which parent will encourage and facilitate the relationship with the other parent. You should see an attorney in private.
An adoption order in Oregon which creates a legal parental rights and obligations will be recognized in every state. Sole custody must be granted by an Oregon court if the parents cannot agree to joint custody. Unless there is an agreement, the court will award custody in the best interests of the child. It is a fact intensive inquiry which, if in court, will require the presentation of evidence. Evidence can include the recommendation of a custody evaluator. The Mult County Court will begin doing evaluations October 15. An Order is required. Alternatively, the parties can hire a private evaluator. The cost can be $5,000-$10,000 or more...to determine what is in the best interest of a child whose parents cannot agree.
Custody cases are complex, fact intensive, and are best handled with competent legal counsel.
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Certainly you have a chance - probably a better than even chance. At the start of a custody case, both parents have equal legal custody rights in their children. This also applies to adoptive parents. Once a case is filed, a specific award must be made. There are two related issues to child custody: legal custody, and physical custody.
Legal custody refers to decision-making authority over a child. A parent with legal custody decides where a child goes to school and what religion they observe, makes medical decisions for the child, and so on. Parents can agree to joint legal custody, sharing this authority, but a court will not order joint custody unless the parents agree to it.
Physical custody, or parenting time, refers to where a child lives. Each custody case ends with a parenting plan describing where the child or children stay. These plans can be as specific or general as the parents need. The parents are free to deviate from the plan if they agree to do so, but the plan is there for when they can't agree. The harder it is for two parents to agree on these issues, the more important it is that the plan be clear and specific.
Usually, a parent who has legal custody of a child also has more parenting time, but this is not required. Parents can share equal parenting time while one has legal custody; or parents can share joint legal custody while one of them has physical custody most of the time.
Under Oregon law, decisions about legal and physical custody are made according to the best interests of the children. Obviously that's really vague, but the law sets forth a few standards for determining the best interests of the children:
The dominant presumption is that the children should remain with the parent who spent most time with them before -- the "primary custodial parent." It sounds like that's been you for most of the child's life, so the likelihood is that you'll receive legal custody if you want it. The law also presumes that it is in the best interests of the children to have an ongoing relationship and continuing contact with both of their parents. If the court must decide which parent is awarded primary legal and physical custody, it is more likely to grant it to the parent who has shown that they will encourage an ongoing relationship between the children and the other parent. Parents should not try to keep their children away from each other, unless one parent has clearly been abusing the children. Alternating weekends isn't much time, for a parent who usually had more than that, so he might get more than that, and you run the risk of looking like you're trying to control and limit his time with her if you insist on it. In general, courts tend to favor stability and continuity for children, so most likely you'll get some arrangement similar to what you've been doing already, at least for the time being.
Oregon law explicitly does not consider the lifestyle choices of each parent in child custody decisions, except as it affects the welfare of the children. Judges do not want to hear parents attacking each other in court; the focus is on the children, not on each person's faults.
Moving to Washington would not invalidate the adoption. If a case has already been filed, you can't legally move out of the state without the approval of the court.
You should consult with your own attorney, in private, if there's ongoing litigation. You can call the Oregon State Bar for a free referral at 503-684-3763.
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