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Custody and Visitation

Custody of children is established in divorce, legal separation, paternity, guardianship, or psychological parent proceedings.

There are two types of custody: sole custody and joint custody. Each situation is unique regarding the amount of parenting time to the mother and the father. The type of custody granted also affects which parent has the final say in major decisions about the child's upbringing, such as education, religion, and medical care. In Oregon, joint custody requires the agreement of both parties. However, even noncustodial parents have significant rights including access to a child health and school records.

In determining custody and visitation issues, the court looks to the best interests of the child. This is a complex standard and involves consideration of parental capacity, which parent has had custody of a child during a separation, the attachments of the child to the parent, and other issues. Mothers and fathers are not to be treated differently in the process, but often a parent who has been the primary day-to-day caretaker of the child will be favored.

Reasonable and consistent visitation (also known as parenting time) for the non-custodial parent is preferred in most situations, regardless of the nature of custody. The custody and visitation arrangements will be described in a parenting plan, and parents will be encouraged to jointly agree to such a plan. Most courts require a parenting plan in any judgment that provides for custody of a child. Oregon law does not mandate any particular schedule, but frequently a court will refer to guidelines adopted in a particular county. Oregon has published guidelines for parenting time of children at various ages. See the link below:

http://courts.oregon.gov/OJD/OSCA/JFCPD/Pages/FLP/Parenting-Plans.aspx

Upon filing a case involving custody, Multnomah, Washington, Clackamas and other counties now mandate parenting classes that discuss these issues in detail. These classes can be attended alone or with the other parent.

Low cost or free mediation is required in most counties and can be helpful in most cases. More complex cases may require an evaluation by a psychologist or social worker. All concerned should seek to minimize involving children in custody and visitation disputes, except in consultation with an attorney or counselor.

Whether issues are mediated or litigated, parents faced with custody or visitation issues should obtain professional legal advice.

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Joint Custody

Joint custody involves equal decision-making power by each parent over the child's life. Both parents share the rights and responsibilities for major decisions concerning the child, including the child's residence, education, health care, and religious training. Joint custody does not necessarily mean that the child lives with each parent for equal time. A joint custody arrangement may specify one home as the child's primary residence and designate one of the parents to have sole power over specific decisions. A joint custody arrangement may be tailored to meet the specific needs of your family. Oregon law requires that a detailed parenting plan describing the rights and responsibilities of each party be part of the final judgment.

Joint custody is not for every family. Joint custody is recommended only for parents who can communicate effectively about their children. In Oregon, a judge will not order that the parents have joint custody unless both parents agree.

If joint custody is not agreed upon, parents may still agree to share parenting time and consult with each other on parenting issues. A noncustodial parent retains significant rights including the right to access a child's medical and school records.

If you decide to share joint custody of your children with the other parent, you should obtain professional legal advice before making a final decision.

Visitation Enforcement and Contempt

Rights of a visiting parent may be enforced through contempt or other enforcement proceedings. A visiting parent whose rights are being interfered with may file a motion with the court and compel the appearance of the custodial parent. Before hearing the case, the court will require the parents to attempt to resolve their dispute through mediation. If the court finds interference with visitation, the court may sanction the violator, including jail in extreme circumstances. The court may also order make-up visitation.

If the custodial parent severely interferes with the non-custodial parent's visitation rights, the non-custodial parent may consider filing a motion with the court to change custody from one parent to the other. However, when determining a change of custody, the court will consider what is in the best interests of the child, and not just the custodial parents' interference with the visitation schedule. In other cases, difficulties may require a modification of the visitation schedule.

If you are having difficulties enforcing your visitation rights, you should obtain professional legal advice.

Relocation -- Its Effect on Child Custody and Visitation

In many cases, the courts will allow a custodial parent to relocate to another state, even over the objections of the non-custodial parent. But each case must be considered on its own facts and in each cases, a move must be in the child's best interests. In some situations, a court may not allow the parent to relocate, or may change custody from the custodial to the non-custodial parent. The court will consider the following factors: the child's age and connections to school, friends, and other families; the child's attachment to the relocating parent; whether the parents previously agreed the child would not be moved; whether the move is primarily intended prevent the non-custodial parent from visiting with the child.

Generally, in order to change custody a parent must show that there has been a substantial change in circumstances since the last custody order. The Oregon courts have determined that a move out of state by a custodial parent is not, in and of itself, a sufficient change of circumstances. If challenged, the relocating party must prove that the move serves the best interests of the child.

If you are the non-custodial parent and your child is being relocated, you have the right to modify your visitation schedule and make your visits more reasonable. Often this means having fewer but longer visits with your child. You can also consider a change of custody modification.

Oregon law now provides that a final judgment establishing custody rights include a provision requiring the custodial parent to give reasonable notice to a non-custodial parent before relocation.

Whether you are the relocating parent or the parent being affected by the change, you should obtain professional legal advice as soon as information about the relocation is known.

Custody Evaluations

If there is a dispute between parents regarding custody or a visitation schedule, the parents may agree or the court may order that the parents undergo an evaluation. In an evaluation, a social worker or psychologist will interview and/or observe both parents and the children, and other relevant people acquainted with the family, in order to make a determination of what is in the best interests of the children. Psychologists will often also perform a variety of mental heath testing on the parents. Multnomah County has a family services department which can perform these evaluations at a relatively low cost. If the parents agree or if there are complicated mental health or substance abuse issues, the court may order a private evaluation be performed. A private evaluation may cost anywhere from three to ten thousand dollars. If the parents cannot agree to a custody and visitation schedule after receiving the recommendations of the evaluator, either parent may call the evaluator to testify in a custody or visitation trial.

Evaluations can be helpful tools in determining what is in the best interests of the child. All concerned should seek to minimize involving children in their custody and visitation disputes, except in consultation with an attorney or counselor. To choose the appropriate evaluator and provide the evaluator with the most relevant information you should seek professional legal advice.

Mediation Resources

Mediation is a settlement negotiation process facilitated by a neutral counselor. Unless and until an agreement is reached, all discussions are strictly confidential. Mediation is encouraged as an alternative to litigation. In most Oregon courts, mediation is required whenever child custody or visitation issues are disputed. Before you can have a court hearing, you must attend a mediation session. During the mediation session, you will attempt to determine which parent shall be primary legal custody of the child, or you may agree on joint custody. You will also discuss setting up a parenting plan and visitation schedule. In counties where mediation is not mandatory, mediation is encouraged for parents with custody and visitation disputes.

Although clergy, friend and families, are often called upon to mediate, the best mediators have professional training and experience in family relations. The following court sponsored mediation resources may be helpful.

  • In Multnomah County, call (503) 988-3189.
  • In Clackamas County, call (503) 655-8415.
  • In Washington County, call (503) 846-3428.
  • Or contact the Oregon Mediation Association at (503) 872-9775.

Mediation can be an excellent and low-cost way to achieve agreement in divorce or separation issues. However, to make mediation effective and successful, it is helpful to consult with an attorney during the process. An attorney can help you gather information prepare for mediation sessions. In almost all cases, you should review your proposed agreement with an attorney before signing it. An attorney can review the agreement to make sure that it is fair and meets the requirements of state law.

Modifying Your Custody or Visitation Order

Your custody or visitation order may be changed or modified by either a written agreement between you and the other parent or by the court after a hearing. Regardless of which method you choose, you should formalize your agreement in writing, have it signed by a judge, and file it with the court.

For a court to modify a current custody order, the requesting party must show that a substantial and unanticipated change of circumstances has occurred since the previous order was filed. These changes of circumstances may involve a custodial parents' inability to care for the children, and an improvement in the parental abilities of the non-custodial parent. Sometimes other factors such as remarriage or relocation are considered. Mediation and custody evaluations are often used to help resolve disputes over modifying custody orders.

Unlike custody changes, you may seek to modify your visitation schedule at any time. You do not need to show that there has been a substantial change of circumstances, but you must show that modifying the current schedule is in the child's best interests.

To determine if a modification is appropriate for you, you should obtain professional legal advice.

Grandparent and Psychological Parent Rights

In certain circumstances, Oregon Law protects the rights of third parties, including grandparents who have formed relationships with children. Under current case law and legislation, Oregon Law presumes that a legal parent acts in the best interest of a child. The presumption may be rebutted by a third party seeking custody or visitation rights. Only when this presumption is rebutted may an Oregon Court consider granting custody or visitation rights, and only if an award of such rights are determined to be in the best interest of the child or children.

Both relatives and non-relatives who have maintained an ongoing personal relationship with the minor child may petition the court for visitation and contact rights. Such persons must show a substantial degree of contact with the child for a period of at least one year but physical custody is not required.

A petition for visitation or custody rights by grandparents and others may be filed in new legal proceeding or through intervention in an ongoing juvenile court, guardianship or domestic relations proceeding.

Custody may also be sought in special circumstances, where you can show a child/parent relationship. To seek custody, you must show physical custody of a minor child within six months before a case is filed. It is important but not sufficient to show that you provided food, clothing and shelter to the child. If a legal parent opposes custody, you must overcome the presumption that the legal parent acts in the best interest of the child.

Oregon law also allows placement of children who are neglected, abused, or who have special needs with relatives and non-relatives in guardianship and juvenile court proceedings.

Establishing visitation or custody rights for a grandparent, relative, stepparent, or others can be emotionally difficult and legally challenging. Whenever possible, professional legal advice should be obtained.

For further information about your rights in this area see the guide in the following web link:

http://kramer-associates.com/mkgrandparentsrights.pdf

Adoption and Guardianship

When a child is adopted, the birth parent's rights are terminated and the adoptive parent is the child's legal parent. Adoption is permanent. If a couple adopts a child and later divorces, each must realize that either party could be awarded custody of the adopted child or be ordered to pay child support.

An adoption usually requires the consent of both birth parents. However, consent of either or both parents may be waived upon a showing of willful neglect or abandonment for a period of one year or more before filing.

Oregon now recognizes open adoptions. In an open adoption, a birth parent or grandparent can maintain minimal or substantial contact with a child through a contractual agreement which is filed at the same time an adoption is ordered.

A guardianship may be ordered by a court where a child's needs are not being met by a birth parent. A guardianship does not result in termination of parental rights, and may be continued or terminated by the court as the situation of the child or birth parents changes.

A delegation of parental rights may also be established without court intervention by the signed agreement of the child's custodian. Delegations of parental rights cannot be longer than six months but can be renewed.

After a guardianship is ordered, the guardian has full custodial rights over the child and is required to provide for the child's care, comfort and maintenance. The guardian has no formal obligation to provide financial support to the child, but may seek child support from the child's estate or birth parents. A guardian is required to file a yearly report with the court.

Guardianships may be modified or ended with court approval.

Paternity and Unmarried Parents

Paternity establishes the legal status of a child's father. Paternity proceedings can also establish custody, child support, and visitation rights of both parents. Paternity proceedings may be initiated by either mother or father, or the state, when a child has been born out of wedlock. If either party disputes that the alleged father is the natural father of the child born out of wedlock, they may request that the mother, alleged father, and child all take part in DNA testing of blood or saliva. Professional testing is usually very reliable. Once paternity has been established, either by agreement of the parties or by parentage testing, or through a court proceeding, the court may determine custody, child support, and visitation rights of both parents, based on the best interests of the child.

Unmarried couples with children may or may not have legal rights, depending on the circumstances. If you and the other person are established as the child's legal parents, then custody, visitation and support issues are handled like a divorce. If paternity of the child is not established, either the mother or alleged father can file a legal action to establish paternity and then determine custody, support, and visitation.

If you are not biologically related to the child and there has been no legal relationship established by the other person, you may qualify as a psychological parent under Oregon law. Psychological parent status may allow you to have visitation with the child, if a court finds that it would be in the child's best interests. However, unless it is in the best interests of the child, a psychological parent will not be awarded custody over a biological parent. Persons with an ongoing personal relationship with a child but not a psychological parent relationship may seek visitation and contact rights. For further information see the link on this website for Grandparent and Psychological Parent Rights.

These issues are complex, and if you have questions about children of unmarried parents, you should obtain professional legal advice. If you have been served with paternity documents, child support requests, or would like to file a paternity petition, you should obtain professional legal advice as soon as possible.

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Kramer & Associates
520 SW Sixth Avenue
Cascade Building #1010
Portland, Oregon 97204
503-243-2733