In Oregon, a Court cannot order joint custody unless both parties agree to it, so if the parties cannot agree, how does a Court determine who should have sole custody?
According to law, it is the policy of the State of Oregon to assure minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of the child. ORS 107.101. So what does “best interests” mean?
Is there a gender bias?
Contrary to popular belief, in Oregon, there is not a gender bias in favor of the children’s mother. Both parents are viewed equally. It is actually included in our statutes: ORS 107.137(5) provides: “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.”
Instead, the Court must consider the children’s best interests. To do that, the Court looks at several factors:
(a) The emotional ties between the child and other family members
This factor looks at the child’s relationships with other family members (grandparents, siblings, stepparents, etc.) As they say, it takes a village to raise a child, so the Court will look at the bonds the child has with other relatives. The Courts are also reluctant to separate siblings unless there are compelling reasons to do so. This extends to half-siblings and stepsiblings as well.
(b) The interest of the parties in and attitude toward the child
This is often judged by a parent’s willingness to put the child as the top priority in the parent’s life. If a parent chooses to go out frequently instead of spending time with the child or misses the child’s activities on a regular basis, this is something the Court will examine.
(c) The desirability of continuing an existing relationship
The Court attempts to maintain existing relationships between the parent and child.
(d) The abuse of one parent by the other
If a parent has committed abuse as defined by Oregon law, there is a rebuttable presumption that it is not in the best interests and welfare of the child to award custody of the child to the parent who committed the abuse. That said, it is very difficult to rebut. If you are subject to a Family Abuse Prevention Act restraining order, it is strongly recommended that you speak to an attorney BEFORE the contested hearing. If the restraining order is upheld against you, it is extremely difficult to overcome.
In addition, if a parent has been convicted of rape and the rape resulted in the conception of the child, there is a prohibition from that parent being awarded joint or sole custody of the child.