A father’s role in a child’s life is more than just financial support and visitations. Fathers provide comfort, care and guidance to their children. Through the years, the presumption that a mother should be the automatic caregiver and custodial parent has waned. Oregon law states that there is no preference for a mother to have custody of a child over the father. Parents have equal rights and responsibilities to their children. Whether the father is married to the mother, was married to the mother or never married the mother, he has rights to his child’s custody.
A father must be a legal parent to have the right to seek custody of his child. A legal parent is a person that adopts a child or whose parentage is established or declared under Oregon law. As a legal parent, the father must maintain food, shelter, clothing, healthcare, education and other necessities for his child until the child reaches the age of majority. If a child is physically or mentally unable to care for themselves, the father may be responsible for the child’s care for the rest of their life. A father may also be legally obligated to take care of the child past the age of majority if the child is enrolled in post-secondary education or training. Whether a legal father has custody or not, he is responsible for taking care of his child. However, the ability and consistency of taking care of his child is one factor that may determine whether the court awards in custody.
Seeking child custody
Fathers may seek child custody during their divorce. Oregon law presumes that a father is a legal parent if he is married to the child’s birth mother. He may petition the court for child custody because he is the legal father. His right to custody is equal to the mother.
Fathers may seek child custody after the divorce is finalized. This may occur if custody was given to the mother during the divorce. The court may change custody if there is a substantial change in circumstances, for example, a mother interfering with or withholding a child from parenting time with the father.
In child custody cases in which the father and mother were never married, the father may have to take additional steps to establish his right to custody. While the law presumed that a father married to the mother is the legal father, state law requires a presumed father to prove his paternity if he was never married to the mother. He may file a voluntary acknowledgment with the Oregon Registrar of the Center for Health Statistics of his paternity or take a blood test to determine whether he is the father. Paternity may also be established if the parents get married after the child’s birth and file the voluntary acknowledgment with the registrar. Once paternity is established, the father can seek custody of the child.
When a father adopts a child, he is the legal parent of the child. He has all of the rights and responsibilities to the child as if he was the biological father. Therefore, he can petition the court for child custody.
A psychological parent is a person who is not a legal parent but has established a parent-child relationship as defined by Oregon law. This type of relationship may occur between a stepparent and stepchild. A stepfather married to the stepchild’s mother may have been the caretaker and provided for the child for a significant period of time. They may have formed a parent-child relationship, especially if the legal father’s involvement with the child is strained, sparse or nonexistent.
Under state law, a stepparent may seek custody of a child during the divorce process if he shows that at six months before filing for divorce, he:
- Had physical custody of the child or child resided in the same household;
- Provided food, shelter, necessaries, care, education, clothing;
- Had day-to-day interactions;
- Gave companionship; and
- Fulfilled the child’s psychological needs.
Once the stepfather establishes that he is a psychological parent to his stepchild, he may seek legal custody of the stepchild. However, he does not become a legal parent as defined under the law. The stepfather may still not gain custody as a psychological parent because Oregon law gives preference to the legal parent. Therefore, the child’s mother will likely get custody unless it is shown that her having custody is not in the child’s best interests.