When a mother and a father do not live together and both want custody of the children, a judge decides who is awarded sole custody. What criteria does the judge utilize? Do judges use the same factors with paternity parents as they do with divorcing parents? Are mothers and fathers treated equally in custody decisions in Oregon’s Courts? Is “joint custody" the same as “shared custody?" What is the difference between “legal custody" and “physical custody?"
The judge is required to “give primary consideration to the best interests and welfare of the child" ORS 107.137(1). There are five factors that the judge is required to consider in granting sole custody to one parent over the other parent: (a) Emotional ties between the child and other family members; (b) Each parents’ interest in and attitude toward the child; (c) The desirability of continuing an existing relationship; (d) The abuse of one parent by the other and (e) The willingness and ability of the parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
If both parents were living with the child just before the legal action started, the parents begin the custody dispute on equal footing. The next step is to discern which parent is the “primary parent." In ORS 107.137 (1)(b) the judge is required to consider the parties’ interest in and attitude toward the child. This has general been interpreted as determining who fills the role of primary parent. Of the five statutory factors, this factor has the most significance with judges.
The primary parent is the one who handles most of the decision-making and care-taking of the child. The primary parent interacts with the child and spends more time with the child than the other parent, and makes most of the day-to-day decisions about the child’s activities. In some marriages, there is no clear-cut primary parent, as the parents divide the parenting duties more or less equally. However, in most marriages the primary parent is the mother. The younger the child, the more likely the mother will be the primary parent.
Therefore, the parents’ behavior, as parents, prior to the custody dispute largely determines who will be granted “sole legal custody" and “physical custody" of the child. Absent unusual circumstances, the non-custodial parent is granted a visitation schedule wherein he or she has the child every other weekend, half the annual holidays and several weeks each summer. The Courts are extremely reluctant to deny contact between the child and the non-custodial parent, as they recognize that a child needs time with both parents.
ORS 107.137 also states: “No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father." In actual practice, most mothers have an edge over most fathers due to the fact that the mother is usually the primary parent. This is especially true of paternity mothers, as often the father has never lived with the child.
When a married couple has a baby they have joint legal custody of the baby, even though no one calls it that. “Joint legal custody" means that each parent is equal under the law as regards to the decision-making for and on behalf of the child. When a child is born out-of-wedlock, the child has only one legal parent, the mother. Joint legal custody does not take effect unless and until the mother and the biological father sign a paternity affidavit and file it with Oregon’s Vital Statistics office, or the Court declares a man to be the legal father.
During a divorce, parents have the option of continuing joint legal custody of the children, but they must both agree to do so. The judge does not have the authority to aware joint legal custody over the objections of one parent. The judge only has authority to grant sole legal custody to one parent and a visitation schedule to the other parent.
The term “physical custody" merely designates the adult with whom the child resides. This is typically the same adult who also has legal custody, but it does not have to be. In the past decade or so, it is not unusual for a single parent to turn the children over to his or her parent(s) to raise, both with and without signing formal custody documents. The parent retains legal custody, but the grandparent has physical custody. This means that the parent still has all the legal authority to make decisions about the child, including moving him to another caretaker.
Shared custody between parents consists of the child living in both households. For example, the child lives one week at mom’s house, the next week at dad’s house, the following week at mom’s house again and so on. These parents typically have joint legal custody of the child, but it isn’t mandatory. This counsel has seen custody arrangements where one parent has sole legal custody, yet the parenting schedule has the child living half the time with dad and half the time with mom (i.e. the child resides with each parent about 50% of the time).
Family Law Attorney