A Parents’ Guide to Oregon Divorces

Types of Child Custody

A good starting place for parents is to become familiar with the terms relating to child custody. In Oregon, there are conceptually two types of child custody:

• Physical; and
• Legal

Physical custody is technically called “parenting time” and refers to the schedule for where the child lives. Legal custody refers to a parent’s primary right to make major life decisions for their child. Legal custody can be sole or joint. An Oregon court will only order joint legal custody if both parents agree to the arrangement. When a judge orders joint legal custody, both parents typically have a say in the major life decisions in the child’s life, including:

• Educational decisions;
• Medical decisions;
• Religious decisions; and
• Living arrangements.

The court may also order terms that deal with day-to-day decision-making. These types of decisions may include:

• Who the child may associate with (i.e. step-parents or significant others);
• Rules for disciplining the child;
• The child’s diet; and
• The child’s activities or sports.

Even if a court orders sole legal custody of a child to one parent, the non-custodial parent is still entitled to be kept up to date with how the child is doing, including the right to confer with teachers and doctors. It is also typical for the custodial parent to be ordered to tell the non-custodial parent of any substantial changes in the child’s life.

Of course, raising a child with a former spouse will raise many other custody issues not addressed here. Those with questions should consult with a dedicated Oregon divorce attorney for immediate assistance.

Child Custody: The Best Interests Standard

Child custody matters are the most contested and divisive issues in divorces involving couples with young children. Not surprisingly, parents frequently ask what a judge can consider when making child custody decisions. In both Oregon and Washington, courts are bound to base custody determinations on what is in the best interest of the child. While this may sound straightforward in theory, in practice, it is anything but.

Oregon law requires that courts consider the following factors when determining what is in a child’s best interest.

• The child’s relationship with other family members;
• Each parties’ interest in the child;
• Each parties’ attitude toward the child;
• The benefit of a continued relationship with each party;
• Whether either party engaged in any abuse of the child or the other parent;
• The child’s preference (with more weight being given to older children); and
• The willingness of each parent to foster a close and continuing relationship between the child and the other parent.

Courts must consider each of these factors, at least to the extent that they apply. A court may only make a child custody decision after it has weighed all relevant factors.

Not only does the law tell the judge what they can consider, it also prohibits the judge from considering certain things. For example, either parent’s disability or lifestyle cannot be the basis of the court’s decision unless the parent’s disability or lifestyle endanger the health, welfare or safety of the child. The court’s concern for the safety of children is paramount. Other factors that a court may consider when making a child custody decision are:

• The conduct of the spouses, if such conduct could endanger the child;
• Each spouses’ residential situation;
• A spouse’s mental health issues; and
• A spouse’s issues with substance abuse.