Family Law

How do Judges Decide Child Custody in Oregon

By Melissa Heinig, Attorney
Custody and parenting time are often the biggest challenges that face divorcing couples. Learn what factors Oregon judges will consider when making custody arrangements.

Custody and parenting time are often the biggest challenges that face divorcing couples. Parents should work together to make a parenting plan that will benefit everyone in their family, but if they can’t agree, a judge will decide custody and parenting time.

What Is Custody?

Like most states, Oregon entitles both parents to have frequent and continuing contact with their child and encourages parents to share in the rights and responsibilities of raising their children after a divorce. Parents have broad discretion in developing a parenting plan, which includes legal custody, physical custody, and parenting time.

Legal Custody:

Parents with legal custody have the right to make decisions regarding their child’s education, health, and general welfare. Some common issues that arise during legal custody disputes often include the child’s:

  • residence
  • religion
  • education, and
  • major medical decisions, like surgery or braces.

The court may award sole legal custody (to one parent) or joint legal custody (shared between both parents). Aside from extreme situations, courts typically award joint legal custody. In Oregon, judges will not award joint custody if the child is a product of rape by one of the parents. Other extreme circumstances for sole legal custody may include:

If the court awards one parent sole legal custody, that parent can make all major decisions about the child’s welfare without consulting the other parent.

With joint legal custody, parents will share rights and responsibilities for major decisions about the child. If parents simply can’t agree despite their best efforts, they will need to ask the court for help deciding.

When a court orders joint legal custody, it may specify one parent’s home to be the child’s primary residence and may grant each parent specific rights and responsibilities. For example, one parent may be responsible for the child’s medical decisions while the other takes care of all educational decisions.

Physical Custody

Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or joint physical custody.

If a judge awards one parent sole physical custody, it means that the child will reside with that parent for most of the year, and the other parent will have visitation rights with the child.

What Is a Parenting Plan?

When parents (or a court) decide custody, they must create a plan that includes all aspects of custody and visitation. A parenting plan is a general outline of how parents will share responsibilities and will provide parents a calendar of visitation. Plans can be general or detailed, but it must grant the noncustodial parent the minimum amount of parenting time allowed by law.

What Does a Parenting Plan Include?

A detailed parenting plan should include the following:

  • where the child will reside
  • holiday, birthday, and vacation plans
  • weekends, including holidays and school breaks
  • decision-making responsibilities (legal custody)
  • a statement which allows both parents to have access to the child’s educational and medical records
  • whether the parents are entitled to telephone access to the child
  • who will be responsible for transportation during visitation, and
  • what methods the parents will use to resolve disputes.

What Is Visitation?

If a court awards one parent sole physical custody, the next step is to determine a visitation schedule for the noncustodial parent and the child. Families should work together to determine a schedule that will work best for everyone, especially the child. Often, families aren’t completely happy with a court-ordered visitation schedule, so when parents work together, they hold more control over their final schedule.

In situations where unsupervised visitation isn’t appropriate, a judge may award the noncustodial parent supervised parenting time. In this type of visitation, a neutral third-party will attend all visits between the parent and child in a preapproved visitation location, such as a county visitation center. The noncustodial parent will be responsible for any fees for the supervised visits.

How Does the Court Determine Custody?

Courts recommend and prefer that parents work together to determine their ideal custody arrangements. Like visitation schedules, parents know what works well for their family, so deciding on a plan together is best.

If parents can’t agree, a court will determine custody based on the child's best interests. When reviewing custody, a judge will evaluate what is best for the child using the following general factors:

  • the emotional ties between each parent and the child
  • each parent’s interest in and attitude toward the child
  • the desirability of continuing the existing relationship
  • any history of abuse by either parent
  • the preference of the child’s caregiver (if applicable)
  • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
  • each parent’s marital status and past conduct, and
  • each parent’s income, social environment, and/or lifestyle.

During the custody hearing, each parent will have the opportunity to present evidence to show why a judge should favor them in each factor listed above. An example of the type of evidence commonly used during custody trial may include:

  • social media posts
  • phone or text message records
  • witnesses, and
  • medical and school records.

Once the court creates a final parenting plan, both parents must follow it. If either parent wants to change the arrangement at a later date, that parent will need ask the court to modify custody. The court clerk will schedule a hearing so each parent can explain to the court why it should or should not change custody. At the hearing, the requesting parent must prove there has been a change in circumstances and that it is in the child’s best interest to alter custody or visitation.

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