When two parents split up and can’t agree about who should have custody of their child, they have to go to court and ask the judge to make an “initial custody determination.” Asking the court for help means that the court decides for the first time where the child will live, how much time the child will spend with each parent, and who will make important decisions on the child’s behalf.
Parents generally have a good idea of what they want in terms of custody, but how much, if at all, will a child’s preferences matter? Will a judge consider a child's opinion on custody? Continue reading to learn more.
There are two kinds of custody in Oregon: physical and legal. Legal custody refers to a parent’s right to have a voice in making important decisions on behalf of the child, like the child’s medical, educational, cultural, and religious upbringing.
Physical custody, on the other hand, refers to where the child will live, which parent will provide care for the child, and how much time each parent will spend with the child. (Or. Rev. Stat. Ann. § 109.704.)
Legal and physical custody may be joint or sole. When physical custody is joint (or shared), the parents will each spend substantial amounts of time with the child. With sole physical custody, one parent will be the primary caretaker, while the noncustodial parent will visit the child.
When parents share joint legal custody, they will both take part in making important child-related decisions such as medical treatments, where the child will go to school, and whether the child will practice a certain religion. If legal custody is sole, only one parent will make the decisions, without requiring input from the other.
When creating an initial custody determination, Oregon judges must consider a laundry list of factors that collectively reflect a child’s best interests. The court can’t pick out one factor and use it to the exclusion of the other factors. Instead, the judge must examine the entire list of factors. The factors include:
If a parent has committed abuse against the child, the court will presume that it’s not in the child’s best interests to award custody to the abusive parent. (Or. Rev. Stat. Ann. § 107.137 (2).) Oregon custody law prohibits the court from awarding joint or sole custody or a child if that parent is guilty of rape. (Or. Rev. Stat. Ann. § 107.137 (6).)
The court can’t use a parent’s qualifying disability under the Americans with Disabilities Act of 1990 as a negative factor in deciding custody unless the disabled parent is endangering or is likely to endanger the child. (Or. Rev. Stat. Ann. § 107.137 (3).)
Additionally, the court cannot give preference based on a parent’s or child’s gender. In other words, the law prohibits judges from giving custodial preference to mothers over fathers or to fathers over mothers. (Or. Rev. Stat. Ann. § 107.137 (5).)
Finally, the court can consider the parents’ conduct, marital status, income, social environment, and lifestyle but only if they are causing or may cause emotional or physical harm to the child. (Or. Rev. Stat. Ann. § 107.137 (4).)
For more information about custody decisions and family law matters, the Oregon Judicial Department maintains a family law website that contains forms and additional research. You can also browse the Oregon Revised Statutes to read firsthand what the custody laws say.
Oregon family law judges will not necessarily consider a child’s preference in every case. The decision varies with the facts of each case. To admit such evidence, the court must decide that the child’s preference also reflects the child’s best interests.
There is no hard and fast rule about how old a child has to be before a judge can consider what the child wants. In one Oregon case, the Oregon appellate courts remarked that “the expressed desire of a child to live with one parent or the other should be given consideration,” but also cautioned that such testimony “must be used cautiously” because a young child’s opinion may be marked by immaturity.
The court commented that if a child is too immature, “he may simply be responding to the greener pastures presented by the [other] parent,” or may “consciously or unconsciously be taking sides and playing one parent against the other for his own benefit.” (In the Matter of Marriage of Remillard and Remillard, 569 P.2d 651 (1977).)
In another key case, the court allowed a ten-year-old girl to express her preference for custody. The young girl offered a mature opinion, explaining that she loved her parents equally, but she didn’t want to lose stability by moving away from her mother. The court was impressed by the bond between mother and child and gave the girl’s opinion weight because it was mature and well-reasoned.
Had the girl testified that she wanted to live with her mother because the mother bought her nice clothes or let her stay up later at night, however, the court likely would not have admitted her testimony because it would be based on childlike, immature considerations. (In the Matter of the Marriage of Tuttle and Tuttle, 660 P.2d 196 (1983).)
The beginning point for many family court judges is to appoint an expert to investigate the child’s life. The investigation covers the character, family relations, past conduct, earning ability, and financial worth of the parents. The court can also order the parents and the children to submit to independent physical, psychological, psychiatric, or mental health examinations. The judge can also appoint an attorney to represent the children’s interests. (Or. Rev. Stat. Ann. § 107.425.)
If the judge believes that a child can express a mature and reasonable preference, the court has the option to take testimony from the child. Either parent may ask that the judge speaks with the child, or the court can make the decision itself.
The judge has the power to speak privately with the child, in the judge’s secure, private chambers instead of in open court, if the judge believes that it’s in the child’s best interests to exclude parents from the conversation. This enables the child to speak freely and candidly with the court and express an honest opinion about custody.
There is no specific age at which a child can decide to refuse to visit with a parent or change custody arrangements without the court’s approval. Pennsylvania law defines a minor child as one who has not yet reached at least 18 years old. (Or. Rev. Stat. Ann. § 109.510.) When the child turns 18, the court no longer has the jurisdiction (power) to require custody or visitation with either parent.
If the custodial parent withholds or fails to send a child for visitation, the other parent can ask the court to enforce the orders.
If the custody or parenting time arrangements are no longer benefiting the child, you can submit a formal request to the court to modify the orders. It’s always best to speak with the other parent before you file official documents with the court.
If you can agree on new terms, and the court agrees that the new terms benefit the child, the judge will approve your agreement and issue a new custody order based on your terms. (Or. Rev. Stat. Ann. § 107.174 (1).) If, however, you can’t agree on a new arrangement, the judge will decide for you.
Before the court modifies custody, the requesting parent must prove that, since the last order, there has been a change in circumstances affecting the parent or child and that a change in custody is in the child’s best interest. (Greisamer and Greisamer, 276 Or. 297 (1976).)
It’s important to note that the court does not take custody modifications lightly and emphasize the importance of stability in a child’s life. Unless you can demonstrate that a change in custody will greatly benefit the child, the court will not uproot the child to change custody.
If you and the other parent can’t agree about who should have custody of your child, you should contact an experienced Oregon family law attorney to represent you. Contested custody cases are challenging to work through as a self-represented person.