November 12, 2008

New Case Law: Court’s failure to specify parenting plan for father reversed

It is unusual for a court to not award parenting time to the non-custodial parent in a divorce case. Oregon’s stated policy is that good parents should have frequent contact with their children. ORS 107.101 provides that it is Oregon’s policy to:

  • Assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child;
  • Encourage such parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage;
  • Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, if necessary;
  • Grant parents and courts the widest discretion in developing a parenting plan; and
  • Cconsider the best interests of the child and the safety of the parties in developing a parenting plan.

A trial court can refuse to order parenting time, but in doing so, the court has to make a finding that parenting time will endanger the health or safety of the child. ORS 107.105(1)(b).

On October 29, 2008, the Oregon Court of Appeals published an opinion in Hickam and Hickam that overturned a trial court’s parenting time order. The trial court had failed to specify a parenting plan for the father. Instead, the court left parenting time decisions to a “parenting time coordinator.”  The parenting coordinator then withdrew from the case, leaving the father with no parenting plan. 

Both mother and father agreed the trial court made a mistake. The Oregon Court of Appeals called the mistake “plain error” as the court had denied the father parenting time but made no findings that parenting time would endanger the health or safety of the child.  The Oregon Court of Appeals noted that parenting time decisions potentially implicate a parent’s constitutional rights.

What does this mean to divorcing parents with children? Recognize that our courts take parenting time awards very seriously, and expect an award of parenting time unless a parent poses a danger to the health or safety of the child. Also, parenting time coordinators are growing in popularity in high conflict cases, but they can’t be in charge of coming up with a parenting plan.