Until there is a court order determining the custody of a child, both parents have equal rights to custody, regardless of whether they are married or unmarried. In order for a court to determine the custody of a child, one of the parents must either file for custody or, if married, file for divorce and seek custody of the child in the divorce proceeding.
There are two types of custody: legal and physical. Legal custody means having the legal responsibility of caring for a child and the legal authority to make decisions about the child. Physical custody refers to with whom the child lives.
Both legal and physical custody can be sole or joint. Sole legal custody means that only one parent has the authority to make important decisions for the child, like where the child will go to school, and who the child’s doctor will be. In the case of sole legal custody, the other parent still has the right to know about how the child is doing in school and to have information about the child’s health, unless a court order says otherwise. Joint legal custody means that both parents have to make all or most decisions about the child together.
Sole physical custody means that the child lives primarily with one parent (the "custodial" parent) and has “parenting time” or visitation with the other parent (the "noncustodial parent"). Joint physical custody means that the child spends a substantial amount of time in both parents’ homes.
In Oregon, the court usually orders sole legal and physical to one parent and the other gets parenting time. An Oregon court cannot order joint custody unless both parents agree to joint custody.
If both parents can agree to a custody and parenting time arrangement, either on their own or with the help of a mediator, a judge will usually accept their agreement and make it part of a court order as long as it reflects the child's best interests.
If the parents can’t agree, a judge will hear both sides and decide what arrangement is in the “best interest” of the child or children. This means that rather than the parents, the judge will say what is best for the child in a court order and the parents will have to follow the order. In determining what is in the child’s best interest, the judge must consider the following factors:
The judge can also consider other relevant facts in order to determine what is in the child’s best interest, including:
After considering the factors, the judge will generally order sole custody to one parent and parenting time to the other parent, except in unusual cases.
The law generally recognizes that it is in a child’s best interest to maintain a close and continuous relationship with both parents. Therefore, when a child and noncustodial parent have lived in close proximity to each other and enjoyed regular parenting time together, there are special considerations when a custodial parent wishes to relocate (move).
In Oregon, a custodial parent may usually relocate up to 60 miles from the other parent without notifying the noncustodial parent prior to the move. If the custodial parent plans to move 60 miles away from the noncustodial parent or outside of Oregon, the custodial parent must notify both the other parent and the court prior to relocating. Regardless of the distance, a custodial parent must continue to comply with any court order regarding parenting time unless and until that order is modified (changed). Therefore, if a custodial parent is considering relocating, it is generally best to discuss the move with the noncustodial parent to see if an agreement can be reached about the move and altering the noncustodial parent’s parenting time.
If the noncustodial parent doesn't agree to the proposed move, the noncustodial parent can file a petition in court to stop it or the custodial parent may file a petition in court asking the judge to allow the relocation. In either case, the judge must consider whether the relocation would be in the child's best interest. In considering the best interest of the child in a relocation case, the judge will consider a variety of factors, including:
Ultimately, the judge could decide that it is in the child’s best interest to: allow the custodial parent to move with the child; order the custodial parent to stay put; or allow the custodial parent to move, but change custody to the other parent. If a custodial parent is allowed to move, some adjustments will most likely have to be made to the noncustodial parent’s parenting time schedule and could include things like extended vacations and video messaging.
For the text of the statute governing best interest in custody determinations, see Or. Rev. Stat. Ann. § 107.137.
Click here for the Oregon State Courts’ website, which provides useful information regarding child custody and relocation in Oregon.