Common Divorce Myth: Courts Always Keep Kids Together
There is a fair amount of truth to this myth, actually. Placement of children in a dissolution action (and in any custody proceeding) is based on the “best interest of the child,” and often keeping siblings together does serve the best interests of children. McBrayer v. Randolph, 191 Or App 553, 559-62, 83 P3d 936 (2004). (We’ve discussed the “best interest of the child” standard previously in a post on this blog.)
But keeping children together is only one factor to consider. Recently, the Oregon Court of Appeals heard a case originally from Washington County, where it determined it wasn’t in the child’s best interest to be placed with his sibling. In Morales and Morales, 213 Or App ___ (2007), a child, E, was subjected to negative comments and attitudes about his father by his mother and sibling and was criticized for wanting to live with his father. Id. When living with his father, E made healthy choices and lost weight (he had been an overweight child to begin with) and father encouraged him to exercise. Id. E missed school when he lived with his mother, but his father was in frequent contact with E’s teachers at school. Id.
The Court determined E was better off with his father, because the siblings weren’t close, E expressed a preference for living with his father, and because the Court did not find the mother’s testimony to be credible and because the Court had misgivings about the mother’s tendency to involve the older child in her disputes with the father. Despite the fact his father in the case had physically assaulted the older child of the relationship at one time in the past, the Court found the father was appropriately remorseful, had taken steps that this would not happen again, and found E would be better placed with his father than his mother. Id.
The moral of Morales appears to be that an appropriate child custody placement involves far more than a simple “keep the kids together” determination, and that a parent’s concern, caretaking, and involvement in a child’s life can overcome powerful arguments — including past domestic violence — to give custody to the other, less involved parent.
