May 12, 2007

Common Divorce Myth: Mothers always get custody of the kids

Just in time for Mother’s Day, we’re going to dispel a mother-centered family law myth. In a word, the response to the notion that mothers always will get custody of the children is: Nope. Oregon statutes are gender-neutral in this regard: in fact, there’s a mandate that courts not give preference for either parent just because that parent is either the mother or the father. ORS 107.137(4).

Instead, ORS 107.137 provides a list of factors for courts to use in determining who should receive custody of the children in a divorce case. (The same factors apply to determination of custody matters when the parents aren’t married, too, via ORS 107.103.)

Roughly speaking, these factors boil down to the “best interest of the child.” More specifically, this means the court looks at the following factors, not giving undue weight to any one factor:

  • emotional ties between the child and other family members;
  • the interest of the parties in the child and their attitude toward the child;
  • the desirability of continuing an existing relationship between the child and the parties;
  • any abuse of one parent by another;
  • the preference for the primary caregiver of the child, if that person is determined to be fit;
  • the willingness and ability of each parent to facilitate and encourage a close relationship between the child and the other parent – but not where facilitating this relationship could pose a danger to the safety and health of the child.

ORS 107.103(1)(a)-(f).

Another factor not enumerated in the statutes but which has been mentioned in case law is the drug use of a parent. In Johnson and Johnson, 154 Or App 560, 962 P2d 752 (1998), the Court of Appeals (rather understatedly) held that drug use is not compatible with childrearing. Johnson at 566. In Johnson, the court also held that where a mother’s drug use was behind her and where the father had not been significantly involved in caring for the children, it would be inappropriate to shift custody from the mother to the father. Id.

In many cases, especially where both parties work and split childcare duties and there are no drug or abuse issues, these factors may not seem terribly helpful to the parties in looking at their case and in trying to work out a settlement.

Oregon encourages parties to resolve these disputes early on. Where custody is at issue, the parties are required to go through a mediation process after starting a child education program (these requirements are occasionally waived, but only for very good reasons).

If the parties still can’t agree, before the case goes to trial, either side can request a custody study be performed either through a public agency or a private expert. We’ve found private studies to be a very important tool in custody or parenting time disputes. The expert, usually a licensed clinical social worker or a psychologist, who conducts the study will do a very thorough evaluation, interviewing not only the parties and observing their interactions with the children, but also interviewing other references and delving into the background of the case. And while an expert may testify at trial, the expert’s report frequently assists the parties in settling the custody or parenting time issues prior to trial — saving clients subsequent attorney fees and costs.