Written by attorney Max J Mizejewski

Child Custody Rules in Oregon, ORS 107.137

Child custody, though commonly thought of as being about the amount of time each parent will have with a child after divorce, is actually about decision-making rights. Parenting time is the term used when determining the number of overnights and vacation days each parent spends with their children. Child custody and parenting time disputes are always the most difficult part of a divorce or legal separation. They are also the most important; your children's future will depend on the outcome of your child custody case. Hiring a Eugene custody attorney to guide you through the complex process is the best way to protect yourself and your children. There are few decisions as important during your divorce as who should have custody of your child and have the final say regarding important life decisions. If both you and your spouse agree, the court can award joint custody over a child. Joint custody is defined in Oregon as the sharing of parental decision-making regarding education, health care, religion and where the children live. Sole legal custody means one parent makes all the major decisions regarding the children. It is most common for the children to live with the sole legal custodial parent, but it is not always that way. Courts often award sole legal custody with parents sharing 50% of the parenting time. Regardless of where the children live, both parents have the right to access the children’s school, medical, dental, police and counselor’s records. Both parents can also typically authorize emergency medical care. If you do not agree, child custody will be established by determining what is in the child's best interests, not what is best for you. Determining what is in a child’s best interests necessitates an inquiry into a variety of factors, including statutes (laws), appellate cases interpreting the laws, and administrative rules. ORS 107.137 requires a court to consider the following factors equally when determining child custody:

  • The emotional ties between the child and other family members,
  • Which parent has historically been the children's primary caregiver, the length of time the children have lived in a stable, satisfactory environment, and the desirability of maintaining continuity for that child,
  • The love, affection and other emotional ties existing between the parties involved and the child,
  • The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs,
  • Whether one parent is more likely to help the other parent keep a close relationship with the children, unless one parent shows that the other parent has been abusive and that a continuing relationship with the children would be dangerous for either the parent or the children,
  • Whether there has been any abuse of one parent by the other (Oregon law presumes that it is not best for the child to be in the custody of a parent who has abused the other parent), and
  • The preference of the child, if the court considers the child to be old enough to express a preference.

A parent’s conduct, marital status, income, social environment or lifestyle can also be considered when determining what is in a child’s best interests, but only if it is shown that those factors are causing or may cause emotional or physical damage to the child. There is a presumption (which can be rebutted) that it is not in a child’s best interests to award custody of that child to a parent who has committed domestic abuse.

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