Do Kids Get a Choice in Custody Arrangements?

October 20th, 2022
Posted By
Sarah M. Litowich
Unhappy Couple Pulling at Their Daughter - kids choice in custody concept
Ending a relationship when parties have children together doesn’t only affect the parties. It can have a tremendous impact on the couple’s children, especially when custody is at issue. While parents usually know what’s best for their kids when it comes to custody matters, children might sometimes have their own preferences concerning where and with whom they live. However, Oregon judges won’t always consider a child’s choice in custody for every case — their decision will vary based on the specific facts and circumstances of each matter.

What is Custody?

In Oregon, there is custody and parenting time. Custody concerns who has the authority to make crucial decisions about things like education, healthcare, and the child’s religious upbringing. Parenting time refers to how much time each parent will spend with the child. Custody can be “sole” and belong only to one parent, or “joint” and be shared by both. Until the court issues a custody and parenting plan order, both parents have the same rights to spend time with their children and make decisions on their behalf. Once a judge signs a custody agreement and parenting time, it becomes binding and can be legally enforced by the courts. As a family’s or child’s needs change, a custody and parenting plan order can be modified by showing the court that there has been a substantial change in circumstances from the time the prior order was put into place.

When Do Oregon Courts Consider a Child’s Choice in Custody Matters?

The court will evaluate a number of criteria in an Oregon custody matter. First and foremost, a judge will consider the best interests of the child. They will also examine a list of specific factors set forth by statute, including the following:
  • The child’s emotional ties to their other family members — Courts are unlikely to separate siblings who have a close bond.
  • The parents’ interest in and attitude toward the child — The court will consider the parents’ willingness to spend time with the children and encourage the child to participate in extracurricular activities.
  • The desirability of continuing an existing relationship with the child — Courts usually find that it is desirable for both parents to continue a relationship with the child, except in cases where the child’s welfare would be in danger.
  • Whether one parent abused the other — If one parent was abusive toward the other, there is a rebuttable presumption that it is not in the child’s best interests to be in the abuser’s custody.
  • The preference for the child’s primary caregiver — Courts usually favor the child’s primary caregiver since they can offer a sense of safety and stability.
  • The willingness of each parent to facilitate a relationship between the child and their other parent — Whether the parties are amicable or not, a court finds it very important that each parent encourages the child to bond with their other parent.
In addition to the above factors, a judge will consider the social environment of the child, and the conduct, income, and marital status of each parent if there is a risk of emotional or physical harm to the child. Critically, neither parent is given automatic preference for custody, simply because they are the mother or father. A judge also has the discretion to consider the child’s choice in custody matters. But in Oregon, there is no statute that mandates a judge grant custody based on a child’s preference or minimum age imposed at which the child’s wishes must be considered. Rather, their level of maturity may be taken into account. The opinions of an older child are typically given greater weight than those of a younger child.

Can Children Testify in Court Regarding Their Custody Choices?

Courts do not want children involved in their parent’s disputes. Accordingly, children are not usually permitted to testify in Oregon custody and parenting time cases. But in certain matters, they are allowed to confer with the judge upon the court’s own motion or the motion of any party. In these cases, a judge can speak with the children without the parents present if it would be in their best interests. However, the parents’ attorneys must be permitted to attend the conference and question the children. In some custody and parenting time cases involving minor children, an investigation into the past conduct, character, and earning ability of the parties may be required to protect the children’s welfare in the future. This can involve a physical or mental health examination of the parties or their children, as well as interviews or evaluations by experts. If the court finds it to be necessary, it can appoint an attorney for the children. In the event the children request an attorney, the court must provide them with one. One of the parties will be ordered to bear the cost of the attorney’s fees.

Contact an Experienced Oregon Divorce and Family Law Attorney

Child custody can be an emotional issue. It’s important to have a knowledgeable divorce and family law attorney who can advise you regarding your rights and ensure the best interests of your children are protected. Based in Salem, Litowich Law provides compassionate counsel and effective representation for a wide variety of family law matters, including custody, throughout Oregon. We welcome you to contact us for a consultation.
Categories: Child Custody