NOTE: The laws on custody of children apply to both married and unmarried parents. For unmarried parents, paternity must be established before custody can be ordered. See Questions 23 through 27 on this web site for information about establishing paternity.
Legal custody means having the legal responsibility for caring for a child. The divorce judgment or court order will usually say who gets custody. Either parent (or both) can get custody. If the parents agree between themselves on custody, they can avoid a long and expensive court case. But if they can't agree, the judge will hear both sides and decide what's best for the child, not the parents. The judge will consider many factors such as:
– Emotional ties of the children to parents and other family members;
– Attitude of the parents towards the child;
– Whether one parent has abused the other. The law now assumes that it is not best for the child to be in the custody of a parent who has abused the other parent;
– Whether one parent is more likely to help the other parent keep a close relationship with the children. The judge wont consider this if one parent shows that the other parent has been abusive and that a continuing relationship with the children would be dangerous for either the parent or the children;
– Any criminal record of the parents;
– The parents' emotional stability;
– Home environment;
– The child's age, sex, and health; and
– Whom the child wishes to be with (if the child is old enough to make a good decision).
Judges will often award permanent legal custody to the parent who has had physical custody of the child. Judges do not like to change the living situation of a child who is doing well.
62. What kinds of custody arrangements are possible?
a.One parent gets legal custody of the children. The other gets parenting time (visitation) rights. This is the arrangement in most cases.
b.Both parents have joint custody. With joint custody all or most decision-making about the child is shared. Joint custody does not mean that the child must spend equal or substantial time in each parent's home; a joint custody order can say that one parent's home is the child's primary home and that the other parent gets parenting time. Child support can still be awarded if there is joint custody. In Oregon a court cannot order joint custody unless both parents agree to all the terms.
c. In families with more than one child, one or more children live with one parent and one or more children live with the other parent. (This is sometimes called split custody.) Judges usually don't order this kind of custody arrangement. They are worried that it may be harmful to the children to separate them.
d.Rarely, a nonparent can be awarded custody in a divorce, or in a separate lawsuit. See Question 66.
Parenting time is a new term that courts use in place of visitation. Parenting time and visitation are the same thing.
A parenting plan is the part of a court order that deals with custody and parenting time. All orders about custody must include parenting plans. Parenting plans may have detailed terms or general terms. All parenting plans must establish a minimum amount of parenting time for the parent who does not have custody.
65. What if my spouse and I can't agree about custody of our children?
The judge will probably order both of you to go to an information session on mediation. Mediation is one or more free, private counseling sessions in which a trained person tries to help you and your spouse reach an agreement about your children. You must attend the orientation session, but you can go to orientation at a different time than your spouse.
After this orientation, and depending on what county you live in, the judge might order you to try to agree on a parenting plan through mediation. If your spouse has abused you in any way and you would rather not go through mediation, talk with the mediator. Mediators must take the family abuse into account when deciding whether and how to mediate a case.
The judge might also order a custody or parenting time study. This is an evaluation of the parents by a trained counselor or psychologist who will make his or her recommendations available to the judge. Very few counties offer a free evaluation. Usually, a custody or parenting time study is not ordered unless one or both parents can afford the cost.
Without mediation or a study, it is up to you and your spouse (or your attorneys if you have them) to settle on custody terms. If you cannot agree, the judge will decide.
66. How can a nonparent get legal custody of my child?
Sometimes a judge will grant legal custody to a nonparent, usually a relative or stepparent who has been living with your child and providing day-to-day care on a regular basis. Judges tend to award custody to third parties only if the judge finds that there is a good reason not to give custody to the natural parents (for example, the parents are unfit).
A nonparent can request custody in your divorce case, any other court case involving the child's custody (such as guardianship, or where juvenile court or the State Office for Services to Children and Families is involved), or in a separate lawsuit. These are sometimes called 'psychological parent' cases. Usually, a judge cannot award custody to a nonparent unless that person has filed legal papers that ask for custody. For information about guardianships and cases involving the State Office for Services to Children and Families, see Questions 149 through 158 and 168 through 172.
67. Can the judge deny a parent custody just because he or she is a homosexual?
No, this cannot be the only reason for denying custody. If your or your partner's homosexuality will be brought up in a custody case, you definitely need a lawyer.
68. Without a custody order, what rights do I have?
Married parents have equal rights to have custody of the child until a court order changes this. If your child lives with you, you may be able to determine many day-to-day issues about your child, but you cannot force your spouse to return your child after a visit, or enforce any other agreement, unless you have a court order.
When parents are unmarried and paternity has not been established, the mother has legal custody and the father has no custody or parenting time rights. When parents are unmarried and paternity has been established by signatures on the birth certificate or in a lawsuit (often handled by the Division of Child Support or the District Attorney), custody might have been granted by the law to the parent who is the child's physical caretaker, even though no court order says so. See Question 29.
69. Can I get legal custody before my divorce or other custody case is final?
Maybe. See Question 58.
70. Can I get custody without filing for divorce or bringing a separate custody case?
Yes, but only temporarily. If you have been a victim of abuse within the last six months and your children have ties to Oregon or need emergency protection, you may be able to get an emergency restraining order with custody under the Family Abuse Prevention Act. See Questions 6 through 8 for more information about restraining orders. These orders usually last for one year. But if the other parent requests a hearing, the judge might change custody or parenting time terms, depending on the evidence. You will eventually need a permanent decision about custody in a divorce or other custody lawsuit.
71. Can I get the police to help me get my child back if I had an agreement with the other parent about child custody?
No. Usually, the police will help you only if you have a court custody order. If you have filed for a divorce and reached even a temporary agreement, it is a good idea to have the judge approve the agreement and make it a court order.
72. Can I represent myself in a custody dispute?
Yes, but it is a good idea to get a lawyer. If the other parent has a lawyer, you very probably will need one.
73. What if a child disagrees with his or her parents about custody?
Once a divorce starts, a child who disagrees with the parents over custody or parenting time arrangements has a right to have a lawyer. (But the parents are responsible for paying for the child's attorney in a custody case that does not involve juvenile court.)
Even if a child doesn't have an attorney, the child's wishes can be told to the judge. Sometimes the judge will talk to the child directly in the judge's office, with only the lawyers (not the parents) in the room. In deciding custody, a judge will seriously consider a child's wishes only if the child is mature enough to make a thoughtful choice, perhaps age 13 or older.
74. Do I have to tell the other parent that I'm moving?
Not if you're moving less than 60 miles farther from the other parent (unless a court order says you have to give notice even for this short move). Usually, custody orders other than restraining orders require a parent moving more than 60 miles farther away to tell the other parent and the court. But you don't have to give this notice if you can show the judge that you have a good reason not to.
75. If I have legal custody, can I move out of Oregon with my children?
You should be able to move out of state with your child unless a custody order or protective order (see Question 58) says that you cannot. But even if there are no restrictions in your orders, the other parent can stop you from moving the child by getting a new court order at the time of the move. A judge will order a parent not to move the child if the judge finds that the move would not be in the best interest of the child. You must still allow parenting time to the other parent if you move. Some adjustments will have to be made and a court will decide if the parents can't agree.
76. What rights do I have if I don't have legal custody of my children?
Unless a court orders differently, a parent without legal custody does have the right to parenting time with the child, to know about how the child is doing in school and to have information about the child's health.
77. Can a custody order be changed?
Yes, if the parent without custody proves something happened to make it necessary to change custody -- for example, the child was neglected or abused since the time of the last custody order. If there are no new problems in the child's home, the judge probably will not change a custody order even if the parent without custody can now provide a 'better' home.
78. Can I do anything to prevent my child from going to the other parent when I die?
Your child's custody usually goes to the other parent if you die. But after your death the judge must consider any notarized document you left. You can have a lawyer prepare an Affidavit (sworn statement) that names a person you want to take care of your child or you can state your custody wishes in a will. You can also write a letter that says who you want to take care of your child and that gives specific reasons why the other parent should not have custody. The letter must be notarized to be effective. If the other parent decides to fight your wishes, the judge will have the final say.