How Is Custody Determined? 

Child custody cases arise when one parent decides to have their children primarily in their care. When married couples separate or divorce, custody is settled with legal separation or divorce proceedings. For parents who were never married, they can file a child custody case with the appropriate court. In certain custody cases involving unmarried parents, the father’s paternity must be established to decide child custody issues.  

Custody is comprised of physical custody and legal custody. Physical custody occurs when a child lives with a parent. A parent with legal custody has the responsibility of making decisions for their child, including education, religious instruction and health care. When a court determines which parent gets legal custody, the best interest of the child is the standard.

Oregon law set factors to determine child custody. The factors include:

  • Emotional relation of the child with their parents and other family members;
  • Whether one parent has been abusive to the other parent;
  • The criminal record the parent;
  • The emotional and mental stability of the parents;
  • Which parent has been the primary caretaker of the child;
  • The age, sex and health of the child;
  • The child’s preference for living with one parent;
  • Behavior and treatment of the parent towards the child; and
  • Attitude of the parents toward the child.

The court may decide that one or both parents should have legal custody of the child. If one person receives custody, and the other parent receives parenting time, the arrangement is known as sole custody. The parent with sole custody is responsible for making major decisions for the child. Joint custody is when both parents share legal custody and decision-making. A court can only order joint custody if both parents agree to it. If both parents agree to joint custody, the court cannot overrule that decision and order sole custody. Although both parents have legal custody, the court may order that only one of their homes is the child’s primary residence. In joint custody, the custody order may also designate one parent to have sole power of making decisions.  

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