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Child Custody

Determining Child Custody

OneTec Family Law has experience litigating complex custody disputes and creating detailed parenting plans

When it comes to your children the most important thing is having a close and nurturing relationship. At the end of any custody case or divorce case with children, the Oregon court makes a ruling on which parent will have legal custody of the parties’ child or children and how much parenting time each parent will have with the child or children. The parent with sole legal child custody will have the power to choose a child’s medical providers, school, faith, and primary residence. Parents with joint legal custody share the authority to make the same decisions. A trial court cannot grant joint custody if one parent objects. If the parents agree to share joint legal custody, the court must accept that agreement. Once a parent has been granted sole custody, the other parent must prove that the custodial parent has had a substantial negative change in his or her ability to parent in order to have the court modify the custody designation. This is a very high hurdle, which means that it is especially important to have the proper outcome at trial.

In determining which parent will have custody, the court looks to the factors set forth in ORS 107.137: Factors considered in determining custody of child. (1) In determining custody of a minor child under ORS 107.105 or 107.135, the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors:(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.(2) The best interests and welfare of the child in a custody matter shall not be determined by isolating any one of the relevant factors referred to in subsection (1) of this section, or any other relevant factor, and relying on it to the exclusion of other factors. However, if a parent has committed abuse, as defined in ORS 107.705, there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse.(3) In determining custody of a minor child under ORS 107.105 or 107.135, the court shall consider the conduct, marital status, income, social environment or life style of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the child.(4) 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.

The Oregon court has the power to appoint an expert to investigate which parent should be awarded custody pursuant to ORS 107.425.

A judgment addressing custody must include a parenting plan. Parenting plans can be general or detailed. A general parenting may include a general outline of how parental responsibilities and parenting time will be shared and may allow the parents to develop a more detailed agreement on an informal basis. At a minimum, a general plan must define minimum amount of parenting time and access a noncustodial parent is entitled to have.

A detailed parenting plan may include, but need not be limited to, provisions relating to:

    1. Residential schedule;
    2. Holiday, birthday and vacation planning;
    3. Weekends, including holidays, and school in-service days preceding or following weekends;
    4. Decision-making and responsibility;
    5. Information sharing and access;
    6. Relocation of parents;
    7. Telephone access;
    8. Transportation; and
    9. Methods for resolving disputes.
    10. That the custodial parent notify the noncustodial parent regarding specified matters concerning the child.
    11. That the custodial parent provide the noncustodial parent with an opportunity to comment regarding specified matters concerning the child.

In creating a parenting plan, the court can only consider the best intersts of the child and the safety of the parties.

The court may order equal parenting time. If a parent requests that the court order equal parenting time in the parenting plan, the court may deny the request if the court determines, by written findings, that equal parenting time is not in the best interests of the child or endangers the safety of the parties.

 

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