Frequently Asked Questions (FAQs) Regarding Oregon Child Custody
Do mothers always get custody?
No. In Oregon, courts are not permitted to award custody based upon gender. The courts will take into account what is in the child's best interests. In addition, the court will look to which parent has been the primary care giver vs. the primary financial supporter - and oftentimes award custody to who has been the primary care giver to the child.
What factors influence child custody determinations?
The Oregon law that helps courts determine which parent is awarded custody is Oregon Revised Statute (ORS) 107.137. The statute states:
(1) Except as provided in subsection (5) of this section, 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, other than as described in subsection (5) of this section, 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.
(5)(a) The court determining custody of a minor child under ORS 107.105 or 107.135 shall not award sole or joint custody of the child to a parent if:
(A) The court finds that the parent has been convicted of rape under ORS 163.365 or 163.375 or other comparable law of another jurisdiction; and
(B) The rape resulted in the conception of the child.
(b) A denial of custody under this subsection does not relieve the parent of any obligation to pay child support.
If my ex and I share joint custody will I still have to pay child support?
Maybe. The calculation of child support in Oregon has nothing to do with custody. Child support is calculated primarily upon each party's gross monthly income and annual overnight parenting time. Therefore, even if parties share joint custody, one party may still be ordered to pay child support.
Can I stop allowing my ex their parenting time if they do not pay their child support?
No. In Oregon, parenting time is set forth in the parenting plan contained in the court's order. One parent has no authority to deny the other parent his or her parenting time without an order from the court to the contrary. If your ex is not paying child support, you may seek legal remedies, but denial of his or her parenting time is not allowed.
What is the difference between sole custody and joint custody?
Sole custody (basically) allows one parent to make decisions for the child (such as which school they attend, and non-emergency healthcare decisions). Joint custody (which must be agreed upon by both parents) allows both parents to participate in the child's decisions.
How is child support determined?
Oregon child support is calculated according to Oregon's Uniform Child Support Guidelines found in Oregon's Administrative Rules (OAR). There is also an online child support calculator to assist attorneys, courts, and parties in determining child support in most circumstances.
How much does a custody study cost?
It varies by county. Some counties (such as Multnomah) have their own Family Court Services department who facilitate the custody studies - other counties (such as Marion) merely have a list of court-approved custody evaluators. Private custody study evaluators can also be hired so long as they have appropriate experience and education. Depending upon a court's resources, the cost of custody studies can vary greatly. For example, the approximate cost of a custody study in Multnomah county is $600 per parent - compare to Marion county where the approximate cost is $1,500 per parent. Private custody study evaluators can cost up to $3,000 per parent.
Who is responsible to pay for the cost of the custody study?
The court has discretion to apportion the cost as it sees fit. Oftentimes the court will make each parent pay for half of the cost of the study. Sometimes, the court may make one parent pay the entire cost, but can also reserve the right to re-apportion the study's costs at the final trial.
My ex's attorney has requested bank statements, pay stubs, and tax returns - do I have to provide these documents?
Probably. Oregon's Rules of Civil Procedure (ORCP) allow each party to request "discovery" documents from the other party to help determine factors that calculate child support - such as gross monthly income. Bank statements, pay stubs, and tax returns are the most commonly requested records to help the other party determine your gross monthly income. If you fail to provide documents which have reasonably been requested, the other party may seek an order from the court requiring you to comply. The real question is: Is the request reasonable? If you feel that you have received an unreasonable request for production of documents, you should immediately seek the advice of a licensed attorney to help you determine the proper course of action. If you do not object to unreasonable requests for information before the ORCP's timeframe expires, you may potentially waive the right to object - even if the request is unreasonable.
What can I do if my ex stops letting me see my child or denies me my parenting time?
If you ex is not allowing you to see your child or denying you your parenting time - contrary to your court ordered parenting plan, you should seek the advice of a licensed attorney immediately. Time is of the essence! The faster you take legal action, the more likely you are to preserve the parenting time you had. Typically, you or your attorney can file a motion with the court for help enforcing the parenting plan.
What can I do if my ex stops paying child support?
Oftentimes child support is collected by the District Attorney's (DA) office (Department of Justice (DOJ) - and the Child Support Program - CSP). If this is the case, the Department of Justice will take legal actions against your ex to encourage him or her to pay their child support and/or catch up on any arrearages. If the DOJ is not actively pursuing collection efforts on unpaid child support, you may want to call your local DA's office and bring the non-payment to their attention. In addition, you may be able to seek a civil money judgment against your ex for child support arrearages. If you obtain a money judgment, you will be able to pursue collection efforts like any other creditor - including garnishment of your ex's paycheck, garnishment of his or her bank account, and attachment of his or her property for sale at Sheriff's auction.
If I have custody of my child can I move to another state?
Maybe. Oregon law requires that anytime one parent plans to move further than 60 miles away from the other parent, they must provide the other parent with reasonable notice before they move. The Oregon presumption is that the custodial parent cannot move out of state and take the child with them, however, this presumption can be rebutted if good cause is shown (in court).
Can my child testify at trial?
Yes (technically), but it might be a bad idea. Oregon judges are remiss to encourage children testifying in their courtrooms because it inherently places the child in a position to either chose one parent over the other, or testify negatively about one (or both) parents. The decision to call a child as a witness at trial should be made by a licensed attorney. If you do not have an attorney, and you are considering calling your child as a witness, you should definitely seek the advice of a licensed attorney first. An alternative to having a child testify in open court is for the parties to agree that the child may speak with the judge (off the record) in judge's chambers with only the attorneys present.
Does my child get to choose which parent they live with?
No (usually). Oregon courts do not let children decide which parent they get to live with (or have custody over them). This is especially true with young children. However, as children grow into their teen years, a court is more likely (sometimes) to allow the child to voice his or her opinions regarding which parent they would like to live with and why.
Where can I learn more about Oregon divorce laws?
The Oregon divorce laws are mostly contained in Oregon Revised Statute (ORS) chapter 107.
Where can I learn more about Oregon custody laws?
The Oregon custody laws are mostly contained in Oregon Revised Statute (ORS) chapter 109.
What if my child is in danger?
If you child is truly in danger with the other parent, Oregon laws permit you to seek what is called Immediate Danger Custody. The statute that permits a parent to petition the court for immediate danger custody is ORS 107.097(3), and it states (in relevant part):
(3)(a) A court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:
(A) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
(B) The court finds, based on the facts presented in the party’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.
(b) The party requesting an order under this subsection shall provide the court with telephone numbers where the party can be reached at any time during the day and a contact address.
(c) A copy of the order and the supporting affidavit must be served on the other party in the manner of service of a summons under ORCP 7.
The burden of proof required to obtain an immediate danger custody order is "clear and convincing". Which means, you must have very persuasive evidence that the child will be in immediate danger if the other parent is allowed parenting time. Immediate means "now" ... not next week, not last week.