Child Custody Modification

In the United States, millions of minor children depend on their parents to provide food, clothing, shelter, healthcare, safety and guidance. They may live in different parental homes – some with married or cohabitating parents, others with single-parent living arrangements. According to the United States Census Bureau report for 2021, over 42 million children live with their married parents, and more than three million reside with their parents who are unmarried partners. 

Single-parent homes may occur due to death, divorce, separation, end of a nonmarital relationship, or absence of the other parent. The Census data shows that 15.6 million children live only with their mothers, while approximately 3.6 million are single father households.

Oregon law gives both parents equal rights and responsibilities for the care and decision-making of their minor children. They also have the same entitlement to the custody of their child. Child custody is the legal and physical relationship between parents with their children. A custodial parent has the right to make significant decisions for the child, including healthcare, education, religion and education.

Married parents can seek child custody during their separation or divorce lawsuit. If unmarried,  one parent can file a case for the court solely to decide custody. The court must determine who the legal parents are before they can resolve a child custody case.

Oregon law defines the legal mother as the person who gives birth to or adopts the child. A law or court order may also establish a person as the legal mother. 

State law presumes the legal father is a person married to the birth mother at the child’s birth or within 300 days after the end of the marriage or a court order for legal separation. Unmarried parents, however, must prove the identity of the legal father. The alleged father can establish paternity by submitting a form that voluntarily acknowledges paternity., 

The father and child can take a blood test to settle the paternity issue. The test is any kind that takes genetic material from a person’s tissue and looks for markers that determine parentage.

A court may order a joint or sole child custody arrangement. In joint custody, the parents share the authority to make significant decisions for their kids. Although they share decision-making, the one parent’s home may be the children’s primary residence. Sole custody means one parent is the custodial parent. The other parent is the noncustodial parent and can visit and spend time with the children during the designated parenting time. 

Under Oregon law, parents can only have joint custody if they agree. However, the judge must award sole custody to one of the parents when they do not agree to a joint custodial arrangement.

The court must make child custody determinations in the child’s best interest. It also must consider the safety and well-being of the child. Oregon law lists factors to ensure the custody arrangement is best and safe for the child. The judge must evaluate the following:

  • The emotional connections of the child with other family members;
  • Each parent’s interest in the child;
  • Each parent’s attitude toward the child;
  • Each parent’s desire to continue the existing relationship with the child;
  • One parent’s abuse toward the other;
  • Preference to the child’s primary caregiver (if the court deems the parent fit); and
  • Each parent’s willingness and ability to support and assist in the child maintaining a close relationship with the other parent

Once a child custody order is in effect, both parents must follow the court’s terms. However, as time passes, situations may arise that require a modification of the custody arrangement. Both parents may agree to change particular custody conditions and jointly ask the court for a modified order. When they disagree, one parent may file for the modification.

The parent seeking modification must file a motion with the court telling it the changes wanted. The filing party must notify the other party by serving them with a copy of the motion.

Once the non-filing party receives the motion, they have 30 days to respond with their objections. They can also provide information to support their disagreement with the filing party’s requests. 

The court considers modification appropriate if the change in circumstances occurs after the original order. The nature of the change must adversely affect the child’s welfare or the ability of the custodial parent to take care of the child. To ensure that the changes to the custody terms are appropriate for the child’s safety and well-being, the judge applies the same custody factors in the modification proceedings as in the case. 

After the judge approves and signs a child custody modification order, the parents must follow the new provisions. The custody terms that the court did not modify remain in effect. 

To schedule a consultation with one of our family law attorneys in Oregon or SW Washington, call us now at 503.222.9116 or write us.

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