Legal Custody vs. Physical Custody

In a child custody case, there are several potential outcomes for parents and their children. Predicting the outcome of a dispute can be difficult due to the factors involved. Oregon courts strive to rule in favor of a child’s best interests in a custody case.

There are different types of custody that encompass far more than just where a child will live. Understanding what they are and how they work is important. If you are involved in a divorce or custody dispute, you need a knowledgeable and experienced family law attorney to guide you through this stressful and complicated process. The family law team at Gearing, Rackner & McGrath is ready to help you protect your parental rights.

What is the Difference Between Legal Custody and Physical Custody?

The goal in any child custody case is for both parties to co-parent and share responsibility for and time with their children. Obviously, this is not always possible. In Oregon, as in many other states, child custody can be divided into two main categories: legal custody and physical custody. These terms refer to different aspects of a parent’s rights and responsibilities regarding their child.

• Legal custody is the authority to make important decisions for the child about their upbringing and welfare. These decisions are typically related to education, healthcare, religious upbringing, and general welfare.
• Physical custody is where and with whom the children will live and spend most of their time. In Oregon, this is generally referred to as “parenting time.”

Legal custody can be shared by both parents or possessed by only one parent. Both must agree to share custody before joint legal custody or shared parenting time will be granted.

After a judge looks at all the information provided in the case, they will grant some form of legal custody and parenting time for the parents if it is in the child’s best interests to do so. Sometimes, unusual circumstances may also warrant a judge to find another, more appropriate arrangement that will better suit the child. For example, a parent may be deemed unfit due to alcohol addiction or physical neglect of the child, or a parent may have a mental health condition that prevents them from taking care of the child.

Types of Child Custody

There are two different kinds of custody that may be awarded in Oregon:

• Legal custody: When one parent is given sole legal custody of the child, they will have the final say in making important decisions about their health, schooling, religion, residence, and lifestyle. Ideally, both parents will make decisions even when not mandated to share this responsibility. Unless denied by the courts, each parent has the right to be informed about the child’s education and health, whether they have legal custody or not.
• Parenting time: This arrangement allows the child to spend significant time living with each parent. The child’s time is split between the parents in a way that enables ongoing and substantial contact with both. Although each parent may have equal input in making important decisions, the child may not necessarily spend the same amount of time with each parent.

The amount of parenting time the noncustodial parent will receive is based on what is in the best interests of the child and logistical factors like distance and school. The Court can award one party legal custody. The Court can only approve an agreement to joint legal custody 一 the Court cannot order joint custody over the objection of one party.

Some families have parenting time schedules with the non-custodial parent. This can include arrangements such as spending time every other weekend visits, midweek visits, or summer and holiday visits. Whatever works for and is agreed upon by the parents and child will likely be accepted by a judge. If the parents cannot reach an agreement, though, a parenting time schedule will be created with the child’s best interests in mind.

The Oregon child custody attorneys at Gearing, Rackner & McGrath have experience handling many different types of custody cases. We are ready to help you navigate the difficult decisions involved with child custody matters while ensuring your parental rights are protected throughout the legal process.

Courts Prioritize the Child’s Best Interests

Judges in Oregon make custody decisions based primarily on the child’s best interests. The court takes various factors into account when determining custody arrangements, including the child’s emotional and physical needs, the parent’s ability to co-parent effectively, any history of abuse or neglect, which parent has taken on most of the caretaking responsibilities, and other relevant factors. A judge will not grant automatic custody to one parent over the other simply because the parent is the child’s mother or father.

Child custody matters often evoke strong emotions. As a result, parents often attempt to bring up any issues they believe will bolster their position in a custody dispute. However, when evaluating factors such as a parent’s income, marital status, conduct, or lifestyle, courts can only take them into account if they have the potential to harm the child emotionally or physically.

Additionally, the state encourages parents to develop a parenting plan that outlines custody and visitation arrangements. This plan can be submitted to the court for approval, or the court can establish a plan if the parents are unable to reach an agreement.

The court may consider a child’s wishes about their living arrangements. However, a judge is not required to make custody decisions based on the child’s preferences. Nonetheless, the preferences of older children hold more weight compared to those of younger children. The decision to allow a child to testify in a custody case should be handled with great care due to the emotional effects it may have on the child.

What is a Parenting Plan?

Oregon courts encourage both parents to continue participating in the lives of their children even after they have separated or ended their marriage. A parenting plan primarily addresses the allocation of time between parents and their child. This plan can arise from a mutual agreement reached by the parents.

A judge will typically approve a parenting plan which has been agreed upon by both parents. In the absence of an agreement, the court must come up with a parenting plan.

Recognizing that parents have the most knowledge about their children, courts generally prefer that parents try to create a practical parenting plan either by themselves or via mediation. Nonetheless, if the parents cannot agree, a court-ordered parenting plan becomes necessary.

The level of detail included in parenting plans can vary, ranging from simple to intricate. However, at the very least, a parenting plan specifies the amount of time the child has with each parent. This is often indicated in terms of the number of nights. In Oregon, parenting plans may also incorporate other particulars related to the parents’ co-parenting arrangements, such as:

• Plans for birthdays, holidays, and summer vacations
• Schedules for weekends and school closures
• Each parent’s involvement in the child’s major life decisions
• Restrictions on a parent’s ability to relocate
• Each parent’s obligation to communicate with the other parent
• Ways to resolve future disagreements between the parents.

A court may implement supervised parenting time due to concerns about a child’s safety when spending time with a parent. Under this arrangement, the child is only allowed to spend time with the parent in the presence of a third party. In certain instances, the designated supervisor may be a therapist or other professional.