The court has no authority to order joint custody “unless both parties agree to the terms and conditions of the order.” ORS 107.169(3). (Some jurisdictions allow the court to order joint custody over the objection of one parent, but Oregon does not.) The Oregon Legislature reasoned that parents with joint custody must discuss and eventually agree on important decisions about their children. Their inability to agree on joint custody indicates a probable lack of agreement in other important decisions.
If one parent has been the primary caretaker, this statute may give that parent more leverage in bargaining for sole custody. However, an increasing number of joint custody cases involve households of two-income parents in which both parents have been involved in child-rearing. In that situation, both parents are more aware of the needs of the children and are more willing to cooperate. In addition, both parents equally run the risk of losing custody altogether if they oppose joint custody, which also leads to cooperation.