Among the many contentious issues in family law and divorce, it is child custody that is the most inflammatory. As a result, the family law attorneys at Gearing Rackner & McGrath receive more questions and inquiries on this issue than any other. Our clients with children always say the same thing: the kids are most important. These clients want to understand the process and potential outcomes of a custody battle.
Although the law in Oregon is quite clear on the factors to be considered in a custody dispute, it can be difficult to predict the outcome in any given situation. Here’s why.
Deciding the Best Interest of the Child
Similar to most states, the law in Oregon requires that child custody cases be determined based on what would be best for the kids. In fact, the applicable statutes effectively prevent the court from considering anything else. The only exception to this rule is the situation where one parent has abused the other.
The broad question of what is in the children’s best interest requires a deep factual inquiry. The court must understand nearly every aspect of the family’s current and historical dynamic. This can include questions about the child’s developmental stage, relationship with each parent, the parent’s willingness and availability to spend time with the child, and each parents’ living situation.
Absent obvious red flags such as abusive behavior, drug addiction or alcoholism, the court will often rely heavily on the parents’ historical roles with respect to feeding, grooming, bedtime routine, homework, and so on. Because these activities typically take place inside of the home, it can be difficult to prove what has actually occurred.
What Is the Statutory Standard for Child Custody Cases?
The Oregon Revised Statutes (ORS) provide that the best interest of the child cannot be determined based on a solitary factor to the exclusion of others. Instead, the court must consider all of the factors enumerated in ORS 107.137. As of this writing, these factors are: (1) the emotional ties between the child and respective family members; (2) the interest of the parties in and towards the child; (3) the desirability in continuing a relationship between the child and each party; (4) abuse by one or another of the parties; and (5) preference for the primary caregiver of the child, if the primary caregiver is “fit” as a parent.
The same section of the Oregon Revised Statutes allows the court to consider other factors in addition to those enumerated in the rule. For example, it is common for courts to consider psychological testing of a parent, a parent’s substance abuse or alcoholism, the special needs of the child, and practical concerns such as the distance between the households.
Does the Mother or Father Have a Stronger Case in Oregon?
Oregon doesn’t allow child custody cases to be determined based solely on the fact that the mother is the mother of the child or that the father is the father of the child. However, it is acceptable in child custody cases to consider the conduct, marital status, income, social environment, and lifestyle of either parent. It is only the issue of gender that must be removed from the equation.
Determinations of Custody
If the parents cannot agree on a custody arrangement for their child, the court must make a determination after a trial. In Oregon, it is common for child custody evaluations to be performed by a neutral expert. These experts can conduct clinical interviews, perform psychological testing, observe or communicate with the children, and contact collateral witnesses. The expert will then produce a report with a custody recommendation for the court. If either party rejects the report, there will be a trial, and the expert will testify.
If you are currently embroiled in a custody disagreement or facing a divorce where custody will likely be at issue, you need a family law attorney with specialized experience. The family law team at GRM can help.