Child Custody and Parenting Time

Establishing legal custody and parenting time is the same process whether you are getting divorced or needing to establish custody of your children for the first time.

Oregon courts make initial custody and parenting time decisions based on what is "in the best interests of the child." In making this determination, the court is instructed to consider the following factors when deciding which parent will be awarded legal custody and parenting time with the minor children:

1. The emotional ties between the child and other family members;
2. The interest of the parent in the child and the parent's attitude toward the child;
3. The desirability of continuing an existing relationship;
4. The abuse of one parent by another;
5. The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
6. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

In practical terms, this means that in many cases, the parent who has accepted primary responsibility for bringing up the child in the past will probably be awarded the care and custody of the child in the future, provided that they encourage ongoing contact between the child and the other parent. The non-custodial parent will be awarded a visitation schedule called a “parenting time plan."

Legal Custody: Joint vs. Sole

Virtually every parent who comes to us for legal advice misunderstands the difference between legal custody and parenting time. Parents often say they want 50/50 or “equal rights” when they really mean that they want equal parenting time with their children.

Legal custody in Oregon, whether joint or sole, is about making legal decisions for a child. This includes medical and dental decisions, educational decisions, religious upbringing, and sometimes denotes a child’s primary residence.

In Oregon, joint custody can be ordered by the court but only if both parents agree. If one parent requests joint legal custody and the other sole legal custody, the court must award sole legal custody to one parent. If parents are awarded joint legal custody, both parents have an equal say in making major decisions that impact their child's life.

An agreement to share joint legal custody is an indication to the court that parents communicate well and are capable of making decisions together. If this is not the case or there has been some domestic violence in a relationship, joint custody is unlikely to work, and parents should think carefully about whether sharing joint custody is a good idea.

Joint custody can be terminated at any time simply filing a motion with the court alleging that joint custody is not working and is no longer in the child’s best interest. If a motion is filed, the court will set a hearing to determine the “best interest of the child” and decide which parent should be awarded sole legal custody. A modification of legal custody from joint custody to sole custody does not necessarily mean that the parenting time plan will change.

Sole legal custody means that one parent has the right to make major legal decisions for their child including decisions involving a child's education, religious training, health care, and the like without consultation with the other parent. Often times, custody judgments award sole custody to one parent but with an obligation that they consult with the other parent on major decisions. In those circumstances, if a disagreement arises, the parent with sole custody still has the authority make the decision over the objection of the other parent.

Modification of sole legal custody from one parent to the other is a more complicated process than modification of joint custody.

Parenting Time (formerly called Visitation)

The court will usually approve any parenting plan (visitation schedule) you and the other parent agreed to. Parenting plans have changed substantially in the last 20 years. Where it used to be appropriate for a non-custodial parent to have their children every other weekend and a “dinner visit” each week, parenting time has expanded, and children are spending a lot more time with the non-custodial parent.

Oregon law states that a non-custodial parent should have sufficient access to their children to allow for appropriate quality parenting time. To that end, the court is expected to recognize the value of a child’s close contact with both parents and encourage, when practicable, joint responsibility for the welfare of such children and extensive contact between the minor child and both parents. This does not necessarily mean that parents will share equal parenting time. It does mean that parenting time of the past, where a non-custodial parent saw their children sometimes only every other weekend (4 days per month) has significantly expanded. In 2019, the legislature enacted legislation that indicates that if a parent requests equal parenting time, the court may deny the request if the court determines it is not in the child’s best interest and makes written findings.

It’s important to note that judges sincerely hope that parents will create their own parenting time plan that addresses each family and child’s unique needs. Given the limited information a court will have, and the limited amount of time to hear evidence, any parenting plan created by a child’s parents will likely be better than the court making that decision for the parents. To that end, the court has certain requirements that parents must walk through before a court will decide for parents what is in their child’s best interest. This includes a mandatory parenting class (or co-parenting class), mediation of issues involving legal custody and parenting time and sometimes even co-parent counseling and parenting classes.

Creating a Parenting Plan That Works

Parents experiencing moderate to high conflict with one another should consider creating a more detailed parenting time plan. Once a parenting plan is entered by the court, parents may strictly adhere to the schedule, modify it and be flexible or abandon it altogether and work it out. The value of having a detailed parenting plan is that if there is a disagreement or conflict between parents who are not following the plan, there is a written document signed by the court that hopefully addresses and decides the point of contention. Periodically, parents may also wish to return to mediation to modify or update the parenting plan to reflect their child’s older age and developmental needs.

All good parenting time plans should address the following:

• Weekly parenting time. This could be every other weekend. It could be specific days of the week that a child will be with a parent every week.
• School breaks: This includes parenting time for Spring Break, Summer Break, and Winter Break.
• Holidays, including Memorial Day, Fourth of July, Labor Day, Thanksgiving, Christmas Eve and Day, New Year's Eve and Day, and any other important holiday for your family.
• General Parenting Time provisions that provide guidance on pick up and drop off of the child, communication between parents and the child, registration of the child for extracurricular activities, both parent's attendance at school events and after-school activities, use of alcohol, drugs or other intoxicants while parenting, use of seat belts and booster seats, return of the child’s toys or clothes after parenting time, and a prohibition against speaking poorly about the other parent in front of the child.

All parenting time plans should also include statutory rights and obligations, including the following:

ORS 107.154: Authority of parent when other parent granted sole custody of the child. Unless otherwise ordered by the court, an order of sole custody to one parent shall not deprive the other parent of the following authority:

1. To inspect and receive school records and to consult with school staff concerning the child’s welfare and education, to the same extent as the custodial parent may inspect and receive such records and consult with such staff;
2. To inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent may inspect and receive such records;
3. To consult with any person who may provide care or treatment for the child and to inspect and receive the child’s medical, dental and psychological records, to the same extent as the custodial parent may consult with such person and inspect and receive such records;
4. To authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is, for practical purposes, unavailable; or
5. To apply to be the child’s conservator, guardian ad litem or both.

ORS 107.159: Notice of Change of Residence.

In any judgment that awards sole legal custody, there must be a providing that neither parent may move to a residence more than 60 miles further distant from the other parent without giving the other parent reasonable notice of the change of residence and providing a copy of such notice to the court.

Sidenote: “Reasonable notice” can mean many different things to different people. Define what is reasonable, whether it's 60 days or 90 days, for example.

ORS 107.164: Parents’s duty to provide information to each other.

Unless otherwise ordered by the court, both parents shall have a continuing responsibility, once a custody or protective order concerning the child is issued, to provide addresses and contact telephone numbers to the other parent and to immediately notify the other parent of any emergency circumstances or substantial changes in the health of the child.

Finally, parents should be aware of and discuss in mediation how they will deal with a child that refuses to spend time with the other parent. To many people’s surprise, there is no age in Oregon at which a child gets to decide where they will live or whether they will go to the other parent’s house for parenting time. From experience, we can say that when a child reaches their teenage years, the court will consider their wishes, social needs, and busy schedules to some degree.

Not all parent-child relationships are safe or healthy. Parents should know that the court’s sole focus is on the best interest of the child, and if there are parental addiction issues, abuse perpetrated against the child or other parent in the past, or special considerations regarding a child’s developmental needs, the court is more likely to take a child’s wishes into account or potentially appoint them an attorney to have a voice in the court proceeding.

Our office has extensive experience writing parenting time plans. We know what provisions are absolutely necessary and what provisions may or may not need to be included to address potential problems in the future. Having an attorney with experience who can write a detailed plan is important in protecting your children and your peace of mind in the future.