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,” which 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 how important decisions will be made on the child’s behalf.
Parents generally have a good idea of what they want in terms of custody, but what about what the child wants? How much, if at all, will the judge take the child’s preferences into account? The answer can be more complicated than it might seem.
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, bears on where the child will live, which parent will provide what kind of care for the child, and how much time each parent will spend with the child.
Legal and physical custody may be joint or sole. If custody is joint, the parents will share time with the child and make decisions together. If custody is sole, only one parent will make the decisions and will spend most, or sometimes all, of the time with the child.
To make 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; the entire list must be examined as a whole. 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. A parent who has been convicted of rape cannot receive joint or sole custody of a child.
A parent’s qualifying disability under the Americans with Disabilities Act of 1990 may not be considered unless the disabled parent is endangering or is likely to endanger the child. No preference is given to mothers over fathers, or to fathers over mothers. Finally, the parents’ conduct, marital status, income, social environment, and lifestyle may only be considered if they are causing or may cause emotional or physical harm to the child.
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 In the Matter of the Marriage of Remillard and Remillard, 569 P.2d 651, 654 (Or. Ct. App. 1977), the Oregon appellate courts remarked that “the expressed desire of a child to live with one parent or the other should be given 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.”
For example, in one key case, the court allowed a ten-year-old girl to express her preference about custody. In the Matter of the Marriage of Tuttle and Tuttle, 660 P.2d 196, 200 (Or. Ct. App. 1983). The young girl offered a mature opinion, explaining that she loved her parents equally but that 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.
The beginning point for many family court judges is to appoint an expert for the purpose of ordering an investigation into 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.
Next, 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 speak 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.
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 very difficult to work through as a self-represented person.