Oregon – Who gets custody? Factors considered by the court

In Oregon, a Court cannot order joint custody unless both parties agree to it, so if the parties cannot agree, how does a Court determine who should have sole custody?

According to law, it is the policy of the State of Oregon to assure minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of the child. ORS 107.101. So what does “best interests” mean?

Is there a gender bias?
Contrary to popular belief, in Oregon, there is not a gender bias in favor of the children’s mother. Both parents are viewed equally. It is actually included in our statutes: ORS 107.137(5) provides: “No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father.”

Instead, the Court must consider the children’s best interests. To do that, the Court looks at several factors:
(a) The emotional ties between the child and other family members
This factor looks at the child’s relationships with other family members (grandparents, siblings, stepparents, etc.) As they say, it takes a village to raise a child, so the Court will look at the bonds the child has with other relatives. The Courts are also reluctant to separate siblings unless there are compelling reasons to do so. This extends to half-siblings and stepsiblings as well.

(b) The interest of the parties in and attitude toward the child
This is often judged by a parent’s willingness to put the child as the top priority in the parent’s life. If a parent chooses to go out frequently instead of spending time with the child or misses the child’s activities on a regular basis, this is something the Court will examine.

(c) The desirability of continuing an existing relationship
The Court attempts to maintain existing relationships between the parent and child.

(d) The abuse of one parent by the other
If a parent has committed abuse as defined by Oregon law, there is a rebuttable presumption that it is not in the best interests and welfare of the child to award custody of the child to the parent who committed the abuse. That said, it is very difficult to rebut. If you are subject to a Family Abuse Prevention Act restraining order, it is strongly recommended that you speak to an attorney BEFORE the contested hearing. If the restraining order is upheld against you, it is extremely difficult to overcome.

In addition, if a parent has been convicted of rape and the rape resulted in the conception of the child, there is a prohibition from that parent being awarded joint or sole custody of the child.

According to law, it is the policy of the State of Oregon to assure minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of the child. ORS 107.101. So what does “best interests” mean?

Instead, the Court must consider the children’s best interests. To do that, the Court looks at several factors:

(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court
This is one of the most important factors the Court will consider. Several recent cases from the Court of appeals have upheld the statutory preference in favor of the primary caregiver to be awarded custody. If all other factors are equal, the Court gives this factor considerable weight.

A primary parent is typically the parent who has nurtured the child and taken care of the child’s basic needs. Among other things, the Court considers which parent has been primarily responsible for feeding the child, bathing and dressing the child, taking the child to the doctor, taking the child to/from school, and assisting the child with school work. As discussed above, there is not a gender bias in favor of the mother simply because she is the mother.

(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.

Next to the primary caretaker, this factor is close to the top of the list of importance. The Court will closely examine the behavior of the parents and how they interact. If a parent takes deliberate actions to interfere with the relationship between the child and the other parent, the Court may be hesitant to award that parent custody. Examples of interference can include wrongfully withholding parenting time, not permitting the child to communicate with the other parent, or making derogatory comments to the child about the other parent.

The best interests and welfare of the child in a custody matter is be determined by looking solely at one of the above factors, but must consider all the factors. The Court also cannot ignore any factor.

What about the other parent’s lifestyle?
Often, parents will try to bring up income, the lifestyle choices, or social environment of the other parent as a reason why the other parent should not be awarded custody. In reality, Oregon law provides that the Court will consider the conduct, marital status, income, social environment or lifestyle of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the children.

The Court will not want to hear a parent complaining about the other parent’s lifestyle just to malign the other parent. In fact, too much focus on the other parent’s lifestyle may cause the Court to question the complaining parent’s ability to facilitate the relationship with the other parent. While you may not agree with the other parent’s choices, unless it is something that may be harmful to the child, the Court will not consider it.

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