Feibleman Case Attorneys at Law - Family Law, Divorce, Estate Planning, Personal Injury, Alternative Dispute Resolution attorneys / lawyers in Oregon - Frequently Asked Questions about Children, Custody, and Parenting Time:

Frequently Asked Questions about Children, Custody, and Parenting Time:

Oregon actually has few statutes that discuss the rights of a custodial parent. On the other hand, Oregon is a leader in protecting the rights of a non-custodial parent. The following are a number of statutes, as of 1/1/05 that relate to non-custodial parents rights.

State Policy on Parental Contact (ORS 107.149). It is the policy of this state to assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.

State policy regarding parenting time (ORS 107.101). It is the policy of the state to (1) Assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child; (2) Encourage such parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage; (3) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, if necessary; (4) Grant parents and courts the widest discretion in developing a parenting plan; and (5) Consider the best interests of the child and the safety of the parties in developing a parenting plan.

The right or limitations of a custodial parent to move (ORS 107.159). In any court order or decree granting custody of a minor child and parenting time or visitation rights relating to the child, except for an order under ORS 107.700 to 107.732, the court shall include in its order a provision requiring that neither parent shall move to a residence more than 60 miles further distant from the other parent without giving the other parent reasonable notice of the change of residence and providing a copy of such notice to the court.

The effect of a sole custody award on authority of other parent (ORS 107.154). Unless otherwise ordered by the court, an order of sole custody to one parent shall not deprive the other parent of the following authority:

To inspect and receive school records and to consult with school staff concerning the child's welfare and education, to the same extent as the custodial parent may inspect and receive such records and consult with such staff;
To inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent may inspect and receive such records;
To consult with any person who may provide care or treatment for the child and to inspect and receive the child's medical, dental and psychological records, to the same extent as the custodial parent may consult with such person and inspect and receive such records;
To authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is, for practical purposes, unavailable; or
To apply to be the child's conservator, guardian ad litem or both.

When parents have to notify each other of emergency circumstances or substantial change in health of child (ORS 107.164). Unless otherwise ordered by the court, both parents shall have a continuing responsibility, once a custody or protective order concerning the child is issued, to provide addresses and contact telephone numbers to the other parent and to immediately notify the other parent of any emergency circumstances or substantial changes in the health of the child.

In a divorce involving children, the main concern of a judge will be “the best interest” of the children. Oregon law lists various factors which are to be considered by a judge such as:

The emotional ties between the child and other family members.
The interest of the parties in and attitude toward the child.
The desirability of continuing an existing relationship.
The abuse of one parent by the other.
The preference for the primary care giver of the child, if the care giver is deemed fit by the court.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Oregon law does not give a preference to mothers but the preference for the primary care giver of the child often works to the disadvantage of many qualified fathers.

Any kind of arrangement, subject to court approval, is possible. It is only limited by your imagination and the ability of the parties to agree. There are two types of legal custody, “Joint” and “Sole.” Ironically, Oregon statutes only define Joint Custody. Joint Custody does not mean a 50/50 split of time with the children. It only means what you two define it to mean, in writing, as approved by the court. Joint custody should define what does and does not require a joint decision. Both parents should be fully willing and capable of cooperating in making decisions regarding the children's residence, religion, schooling, medical/dental care, etc. Only if both parents agree can the court order joint custody. That means that if one parent wants it and the other does not there will be no joint custody. Sole Custody is the opposite of joint custody. One parent is defined as having the decision making authority. Legal “Custody” is unrelated, in a legal sense, to where the children will physically be. That is called parenting time. A parenting time award is the court ordered schedule that says where the children will be, when they will be there and the other terms and conditions of visits such as dates, times, holidays, transportation, etc. Many counties now have a default parenting time schedule which is adopted in a divorce Judgment unless the parties negotiate or the court agrees to a different schedule. These schedules are found in the local county court rules. A link to each county court can be found in our links section. A parent who does not have legal custody of a child is entitled to reasonable parenting time (visitation) with the child.

In addition a Judgment of Custody does not deprive the non-custodial parent of certain rights to the same extent as the custodial parent has them. These rights are found in ORS 107.154 and are spelled out as the right:

To inspect and receive school records and to consult with school staff concerning the child's welfare and education.
To inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent.
To consult with any person who may provide care or treatment for the child and to inspect and receive the child's medical, dental and psychological records to the same extent as the custodial parent.
To authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is, for practical purposes, unavailable.
To apply to be the child's conservator, guardian ad litem or both.

As noted in other sections of the FAQ, mandatory mediation is required in most counties. If the parents are still unable to come to an agreement regarding custody and/or parenting time, the Court will make a custody and parenting time award as part of the divorce. Sometimes a custody or parenting time study will be ordered to aid the court which is an independent evaluation of the parents by a trained counselor or psychologist who will make his or her non-binding recommendation to the judge. In this age of tight budgets this is usually privately paid by the parties.

Unless there is a court order preventing it, a custodial parent has the right to move the children. Normally the Judgment of Divorce will include a provision in the custody/parenting time order requiring that neither parent may move more than sixty miles without giving reasonable notice to the other parent and to the Court. On the other hand, there is a different Oregon law that provides for a “Status Quo” order which can require that nothing change while a motion to modify is pending. The only issue at a status quo hearing is what was the status quo for the 90 days prior to the motion. That means that your spouse can effectively prevent your move pending a hearing on a motion to prevent your move or to change custody. The best thing is to give lots of notice and where possible, get permission from the court or your spouse.

The parent who does not have physical custody will have scheduled parenting time with the children. Most local rule plans actually spell out each parent’s time.

Each case is unique and the amount of parenting time ordered depends on facts such as the age of the children, time and scheduling requirements (based on the school year, for example) and the distance between the parents' households. As noted above, most counties have default schedules for your review. The typical schedule for many families is alternate weekends, mid-week contact, half the summer, half of winter break and alternating holidays such as Thanksgiving weekend, holiday weekends, birthdays, etc.

There is no age in Oregon where a minor child has the right to not visit. Also, the children need to go on all visits Court ordered, even if they don't want to go. You should try to find out why the children do not want to visit the other parent and work out any problems together or through counseling and through joint meetings with the other parent.

No. You must give the other parent the parenting time ordered even if child support is not being paid.

The difference between joint custody and sole custody is the degree of rights that the non-custodial parent has in the decision making process for the child. Basically, joint custody is an arrangement wherein the parents legally share rights and responsibilities for major decisions concerning the child. These decisions could include the child’s residence, education, health care, religious training, and other major decisions involving the child. However, the Court can designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions. For example, an order providing for joint custody may specify one home as the primary residence for the child and provide a set parenting time schedule for the other parent.

No. "Joint custody" does not mean that the child has to live with each parent fifty percent of the time. Custody and parenting time are two separate issues. You and the other parent could share joint custody, you could provide the primary residence, and the other parent could have visitation pursuant to a visitation schedule (which typically provides for every other weekend, alternating holidays, etc.), or some other schedule which may better fit your needs. The visitation schedule is something that will need to be worked out whether you choose joint custody or sole custody.

Sole custody gives to the custodial parent the sole right to make the major decisions for the child. If you had sole custody, you and you alone would have the right to decide if you want your child to go to public or private school, whether or not you want a particular medical procedure performed, or if the child would be raised in a particular faith. Sole custody does not mean that you have to make these decisions without input from the other parent, but it does give you the right to do so.

To inspect and receive school records and to consult with school staff concerning the child's welfare and education, to the same extent as the custodial parent may inspect and receive such records and consult with such staff;
To inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent may inspect and receive such records;
To consult with any person who may provide care or treatment for the child and to inspect and receive the child's medical, dental and psychological records, to the same extent as the custodial parent may consult with such person and inspect and receive such records;
To authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is, for practical purposes, unavailable; and
To apply to be the child's conservator, guardian ad litem, or both. Note: a Guardian ad litem is someone who can sue on behalf of the child. For example, if a minor child was hurt in an automobile accident and suit needed to be filed, someone would have to sue on behalf of the child because he is not an adult.

The Court cannot order joint custody if both parties do not agree to it. However, if one party requests joint custody and the other party is not in agreement, the Court can direct the parties to participate in mediation in an attempt to resolve their differences regarding custody. In most counties all parents are now required to go to mediation when they have children.

One important point to keep in mind is the matter of modification. After entry of the judgment, either party may file a motion with the court asking that the judgment be "modified." The items in a judgment which can be modified by the court are custody, visitation and support (child and spousal). However, the person requesting the modification needs to show that there has been "a substantial change of circumstances" since the entry of the judgment which could not have been anticipated at that time. If, for example, you had sole custody of your child, still resided in the same area, the other parent still lived in the same area, and nothing really had changed since the entry of the judgment, there would likely be no grounds to ask the court for a modification of the judgment. There had been no change of circumstances. If you had joint custody, there is a one big difference. The only change of circumstances that would need to be shown in a modification proceeding is that the two of you no longer have the ability to cooperate with regards to your child. From a legal viewpoint, this is significant. Also, if you wanted to move, the other parent would have greater standing to prevent it. Finally, agreeing to joint custody is an admission that the other parent is an equally-fit custodial parent.

We believe joint custody can be a very positive arrangement when the parties are determined to work together for the best interest of the child. However, for joint custody to work, it is imperative that the parties are able to communicate regarding the child and that neither party feel intimidated or controlled by the other parent. It is your decision whether or not you want to agree to a joint custody arrangement. We are here to help you make that choice.

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