Fighting for the custody of your children can be a very intense and emotional process. As a father of four, Mr. Grossman knows how much custody and parenting-time can mean to parents involved in this kind of dispute. Whether you are married or unmarried we will help you determine the best course of action. If a custody order is already in place, we can assist you in getting the order modified or enforced.
The Child Custody Determination.
Oregon law requires that child custody determinations be based upon the best interests and welfare of the child. The relevant code section can be found at ORS 107.137.
In determining the best interests and welfare of the child, the court may consider the following relevant factors:
(1) The emotional ties between the child and other family members;
(2) The interests of the parties in and attitude toward the child;
(3) The desirability of continuing an existing relationship;
(4) The abuse of one parent by the other;
(5) The child’s preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
(6) Each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider this factor if one parent shows that the other parent has sexually assaulted or engaged in a pattern 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. ORS 107.137(1).
Child Custody Factors.
a. Parent and Child Relationship
In determining custody of a minor child, one of the statutory factors that the court must consider is the “preference for the primary caregiver of the child, if the caregiver is deemed fit by the court.” ORS 107.137(1)(e).
All other factors being relatively equal, considerable weight is given to which parent has been the primary caretaker. "Primary caretaker" generally means which parent has provided for the day to day needs of the child, ie. who has fed, dressed, put to bed and spent the most time with the child on a daily basis. Typically if one parent works full-time and the other parent stays home with the children the stay at home parent will be considered the primary caretaker.
Sometimes there is no clear cut answer as to who the primary caretaker is. Sometimes both parents can be the primary caretaker. In such a case this factor will likely not decide the custody determination.
Furthermore, if there is evidence that the parent identified as the primary caretaker is unstable or potentially harmful to the child's well being, then a court may decide that it is not in the child's best interest to be with the primary caretaker.
b. The Child’s Preference
The court may give weight in a custody determination to a child’s preference to live with one parent unless the choice is clearly against the child’s best interests. There is no age at which the child gets to decide who to live with. That decision is always up to the judge and based upon the statutory factors. However, as children get older a judge will generally give their preference more weight.
The Court may take testimony from or confer with the child, and may exclude the parents and other persons if the court finds it to be in the best interests of the child. The court must permit a lawyer for each party to attend the conference, however, and the conference must be reported. ORS 107.425(7).
c. Separation of Siblings
Judges are reluctant to separate siblings in custody cases and do so only when there are compelling reasons. Keeping children together can be the deciding factor in awarding custody.
Continuing a relationship with the children’s other relatives can be a factor in determining which parent should be awarded custody. If the child has strong relationships with grandparents, aunts, uncles, cousins, etc., it is important to make the judge aware of that fact.
e. Interest of the Parties in and Attitude Toward the Child
A parent’s interest in and attitude toward a child can be reflected by the parent's willingness to organize working hours, weekends, and vacation plans into a schedule that allows the parent to spend more time with their children or focus on their child’s needs and interests.
While most parents will usually have to make some child-care arrangements, the court may look more favorably upon a parent that can adjust their schedules to allow the parent to be with the child on a fairly regular basis. As such, future plans of a parent seeking custody may be as important as conduct demonstrated during the marriage.
f. Conduct of Either Party
The conduct or lifestyle of the parents is generally not considered as part of the child custody determination unless there is evidence that the parent's behavior is harmful to the children. ORS 107.137(3).
(3) In determining custody of a minor child under ORS 107.105 (Provisions of judgment) or 107.135 (Vacation or modification of judgment), the court shall consider the conduct, marital status, income, social environment or life style of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the child.
Evidence that one parent left the other parent or had an affair that caused the breakdown of the marriage is not necessarily relevant to the ability to provide good care to a child. It must be shown, for example, that the parent's lifestyle choices or the misconduct of one parent had or will have a detrimental effect on the child before that evidence can be the basis for awarding custody to the other parent.
A parent’s conduct that endangers the child certainly can be grounds to award custody to the other parent. For example, a parent’s persistent abuse of alcohol or drugs can be justification to award custody to the nonabusing parent.
Joint Custody vs. Sole Custody.
Joint custody can be an appropriate solution to a custody dispute. If you feel this is a desirable outcome, we can help you work towards to achieving a joint custody resolution. In Oregon, however, joint custody is only allowed by stipulation of the parties. That means both parents must agree to a joint custody arrangement. If the case proceeds to a contested trial, the Court cannot order joint custody. ORS 107.169(3)
ORS § 107.169 Joint custody of child
(1) As used in this chapter, joint custody means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the childs residence, education, health care and religious training. An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.
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