Father’s rights in Oregon
Fair warning, this is an in-depth article delving a bit deep into custody issues. It includes case law and statutory references. There are sections that are broader, but then some get more specific. If you still have questions, feel free to contact us.
CAN UNMARRIED FATHERS OBTAIN CUSTODY?
Oregon family law is gender neutral at least, it is in theory. Courts presume that children do better when both parents are involved in their child(rens) lives. But there are some gaping holes in the law and its application that can leave certain fathers (especially working fathers) at a disadvantage when it comes to obtaining child custody and visitation.
One of biggest statutory disadvantages for working fathers is, “Who is the primary caretaker of the child?” The primary caretaker is the parent who is with the child the most often. This usually disadvantages working fathers. The person who is with the child the most may not be the most caring parent, but the statutory presumption is there. Oregon Revised Statutes (“ORS”) 107.137 “Factors considered in determining custody of child”.
UNMARRIED FATHERS MUST SECURE THEIR RIGHTS
Unmarried fathers can find themselves in especially challenging positions. Under Oregon law, unmarried fathers have no right to be in their child’s (children’s) lives without taking legal action.
Both parents may voluntarily formalize the father’s position by naming him as the father on the child’s birth certificate (usually done at the hospital at the time of birth). They must also sign an acknowledgement of paternity. Doing so grants the father full paternal rights, which may then be exercised.
If one of the two parties refuses to sign the voluntary acknowledgement of paternity, the man may also petition the court (circuit court) by submitting to a paternity test, a non-invasive mouth swab that is quite accurate. Once the court issues an order naming them as the father, the man can then seek custody and visitation, through the circuit court.
THE IMPACT OF LACK OF PATERNITY ON OTHER FAMILY MEMBERS
Under the Oregon Revised Statutes (“ORS”) 109.119 Rights of person who establishes emotional ties creating child-parent relationship or ongoing personal relationship; presumption regarding legal parent; motion for intervention and Troxel v. Granville, 530 U.S. 57 (2000), clear and convincing evidence that the parent cannot act in the best interests of the child and visitation by the non parent is in the best interests of the child. In our experience, unless there exists a clear issue (severe drug addiction, for example) a non parent has a very difficult road toward visitation.
MARRIED DADS WHO DIVORCE CAN ALSO HAVE PROBLEMS
Problems with father’s rights usually arise in the context of contested divorces. Courts prefer parents to work out matters for themselves and submit the agreed-upon custody and visitation arrangements to the court (usually done through mediation). Parents, especially fathers, who litigate custody or visitation matters in court could find themselves fighting an uphill battle in some jurisdictions and some courtrooms, even though the law is clear. Consequently, working fathers often need lawyers who will be their strong advocate in court.
There may also be instances where a non-biological father is listed on the birth certificate for a child, but they are not the biological father (not “bio dad”). The father may file for non-paternity to avoid payment of child support for a child that is not biologically theirs.
In the alternative, if a father turns out not to be a biological parent and the mother has filed a petition for non paternity, the father will have to fight to establish himself as “psychological parent” in order to obtain any rights to the child.
GET HELP FOR YOUR CUSTODY CONCERNS TODAY
Sadly, working fathers often need to meet a higher standard to demonstrate their suitability as parents. Moreover, working fathers appear to be victims of parental alienation campaigns more frequently, making it less likely that they will be seen as appropriate custodial parents.
GOOD NEWS
Oregon is moving toward 50/50 parenting time, so long as both parents have a bond with the child. Working parents are beginning to be recognized as equal providers in the parents relationship.
There is a lot of research to suggest that parents need to spend equal time with kids regardless of whether they are working. There is also a lot of research to support the notion that a child needs to spend time around a working parent so that they can view it (working/successful career) as a goal.
Each parent provides world experience that is important for the child(ren) and those experiences need to be recognized and promoted.
While it is wonderful for one parent to stay home with the children (especially present with mothers at younger ages) the role that a working parent takes should not be diminished. It is often the case that one parent must work and one is then able to stay at home. Neither parent is giving less than the other, in those relationships.
In today’s world, (reality) usually, both parents have to work. And the law needs to keep up with that. It’s important who changes the diapers but it’s also important who buys them.
BIO DAD FIGHTING FOR CUSTODY
107.137 Factors considered in determining custody of child…
(a) The emotional ties between the child and other family members;
(b) The interest of the parties in and attitude toward the child;
(c) The desirability of continuing an existing relationship;
(d) The abuse of one parent by the other;
(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
(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.
Because this is the area that most dads we meet with are interested in, we will expand with potential hypothetical situations for each factor. Hopefully, some situations will stick out (ring true) and make sense for you.
Overall this is factors test, and no one factor out-weighs the others. They must all be considered together, based upon your particular circumstances.
(a) The emotional ties between the child and other family members
How close is your immediate family to the child (children)?
Do you have step-children?
Do the grandparents spend time with the children? Is it important for those relationships to continue?
Are the children close with aunts and uncles?
Does the mother of the children facilitate all of these relationships?
(b) The interest of the parties in and attitude toward the child
This factor is difficult to quantify, it comes down to questions like:
Who (which parent) has taken the child to the Dr.?
Who has taken the kids to the parent teach conferences?
Who has invested the most time with relationships with other people and who has taken to the most activities (park, playground, intramural sports)?
Even if you (as a parent) didn’t go to the Dr., did you call the Dr. to find out what happened during the visit?
Did you call the dentist to find out the results of the check-up?
Who takes the kids to daycare?
Who cares about the kid being at daycare (wants to make sure they are enrolled and being properly socialized)?
How involved are you (as a parent) in the day to day lives?
Is your child failing algebra? Are they getting and A in social studies?
What is your discipline style? Judges disfavor spanking and favor time outs and talking through problems. DO NOT SPANK YOUR CHILDREN.
(c) The desirability of continuing an existing relationship
These questions focus around things like the following:
Is the kid happy to be around you?
Does the court want the child to continue the existing relationship (as it stands) with you?
Is it (the relationship) healthy? If it is, present evidence of its health. Explain that if you do not have a relationship with the child, the child will be upset, that it will ultimately be detrimental to the child.
Kids need their dads. Why would you not have dads around unless they were a clear and present danger? You wouldn’t, unless you are only trying to win the case and not interested in the best interests of the child(ren).
(d) The abuse of one parent by the other
This issue focuses on things like the following:
Is there a restraining order in place?
Did you abuse the mom in front of the children? If you did, go to counseling, and ask the counselor to address any issues you have that might involve the child. Then ask the counselor to testify that you are capable of being a father, despite the history of abuse. That the benefits outweigh the detriments. Be honest, it will be coming out if you’re fighting for custody.
(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court
This was discussed above in this article. This is where the unfairness in the factors lies for working fathers. A mother this is a “stay-at-home-mom” has an advantage over the working father.
(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
If there is alienation between father and child, this factor will go in your favor. If mom says, “You cannot see your children,” this will actually favor you in court, as the mom is alienating the children from you, their father.
By the way, it’s worth noting at this point, if you want custody, you had better get a “Custody Evaluator“. Pay the money and take their advice. They are the professional in this regard. If they, the evaluator, say you should not have custody, heed their advice and become a better parent before blaming everybody else.
This is a good start, but it is only part of the story. Do not rely on this as your whole strategy, you should always consult with a lawyer.