In Oregon, courts are directed to do what is best for children. So that everyone knows the rules about how the courts decide custody, ORS 107.137 tells the court that it should consider the following:
- The emotional ties between the child and other family members;
- The interest of the parties in and attitude toward the child
- The desirability of continuing an existing relationship
- The abuse of one parent by the other
- The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
- However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.
Courts are unlikely to separate children who have a close bond to each other.
Example: if a mother has two children with two different fathers and both children have lived with mother for the previous six months or more, it is unlikely that the court will separate those siblings if it is otherwise in the child’s best interests to stay with the mother.
The court also considers how well bonded the child(ren) are with other family members. This can come into play if one of the parents has had a minimal role with the child(ren) and then returns and wants to play a bigger role. If the child(ren) have not had much contact and bonding with the non-primary parent, the court will consider this when deciding whether to change custody.
Interest and Attitude
Among other things, the court will look at a parent’s willingness to arrange their work and other schedules such that the parent has meaningful time with their children. This can be hard for some people, as not everyone can tell their employer they can’t work because of their children. However, if such flexibility is an option, the court looks favorably on a parent who makes time for their kids.
In the digital age, a new issue is arising. Parents who are always on their phone or who hand their kids a tablet are increasingly facing scrutiny for failing to show interest in their children. The court will consider a parent’s attentiveness to their child(ren) when making decisions about which parent should have custody.
Court also look at a parent’s willingness to encourage a child to engage in activities, such as sports and extra0curricular activities. If one parent is deeply involved and the other is not at all, the court is more likely to look for favorably on the parent who is involved.
Most of the time, the court will find that it is desirable to continue the relationship between the child and both parents. In very limited circumstances, the court will find that it is undesirable to continue a relationship between a parent and child.
If this question is in play, most likely DHS/CPS and the police are involved. The sorts of cases that result in a finding that it is undesirable to continue the relationship between parent and child often involve one of the parents either having their parental rights terminated by the state or going to prison.
Most often, when someone asks me if they can terminate the other parents right or keep them from having parenting time, the answer is no.
In Oregon, if one parent has been found to have abused the other parent, there is a presumption that it is not best for the child to be in the custody of the abuser. A presumption means that we act as if it is true that it is not best for the child to be in the custody of the abuser. There are several ways that a person can be found to have abused someone:
- If a person has a Family Abuse Prevention Act (FAPA) restraining order served on them and that person challenges the restraining order and loses (the restraining order stays in place), abuse has occurred;
- If a person is convicted in the criminal courts of abusing the other parent, abuse has occurred; or
- If a person can prove to the family law court by a preponderance of the evidence (51% likely), abuse has occurred.
If it is established that abuse has occurred and the person found to be the abuser wishes to challenge the presumption that it not best for that person to have custody, they must present evidence and convince the court that the presumption does not exist. This is very challenging and usually is only successful if a long period of time has passed between the finding of abuse and the custody case.
A finding of abuse does not mean that the parent found to have abused the other parent will not get parenting time. There may be restrictions and other protections in place, but the children are still entitled to see their parent.
This is one of the more important factors. Often, the primary parent is described as the administrative parent. This parent makes doctor’s appointment, brushes teeth, makes dinner and lunches, wipes noses, tucks in, kisses owies, signs the child(ren) up for school and activates, does the school shopping, and other necessary things required for a child’s day to day needs. Sometimes it is very clear who this parent is, sometimes it is not. Sometimes (more so in recent years) both parents are the primary caregiver.
Statistically, mothers are the primary caregivers, which gives the impression that the law favors mothers. For those fathers who want custody of their children, they are well advised to know what size clothes and shoes their child wears, know their children’s teacher’s and friend’s names, and can respond to the children without mother’s guidance.
The court favors the primary caregiver because the child is usually more bonded to the primary caregiver and feels safe and secure with the primary caregiver. The court will very infrequently remove a child from the primary caregiver, and then only if the other parent can demonstrate that the primary caregiver is unfit.
Often when parents’ divorce or separate, one parent will take the children. If the parent left behind wishes to maintain the regular contact they had with the children until a more permanent solution can be had, that parent is well advised to work with an attorney to get a temporary order in place within the first 3 months of the separation. Waiting too long establishes the other parent as the primary parent and creates an unnecessarily steep uphill battle to regain the time you once had.
Another highly important factor is a parent’s willingness to foster and encourage a close and continuing relationship between the child(ren) and the other parent. This means that the parent encourages the children to like, love, respect, communicate with, and see the other parent.
Examples of not doing this:
- Allowing the child(ren) to decide if they talk to or see the other parent;
- Speaking poorly about the other parent in front of or to the child(ren) so that the child(ren) think poorly of the other parent;
- Failing to make the children available when the other parent calls;
- Failing to take the children to an exchange when scheduled;
- Moving the children far away from the other parent without good cause; or
- Rewarding the child(ren) for saying one parent is the favorite.
Whether parents like each other or not, their children are entitled to love and bond with each parent. Only in the limited situations described above should a parent interrupt a child’s relationship with their other parent. Courts have changed custody in extreme cases of parental alienation.