Child custody in Oregon

What the law tells the judge to look at

In the order the law lists them.

1. The emotional ties between your child and other family members.ORS 107.137(1)(a)
2. Each parent's interest in and attitude toward the child.ORS 107.137(1)(b)
3. Whether it is good for the child to continue an existing relationship.ORS 107.137(1)(c)
4. Abuse of one parent by the other.ORS 107.137(1)(d)
5. A preference for the child's primary caregiver, if the judge finds that caregiver fit.ORS 107.137(1)(e)
6. How willing and able each parent is to support a close and continuing relationship between the child and the other parent. The judge may not consider this factor against a parent who shows the other parent sexually assaulted them or showed a pattern of abuse toward them or the child, and that continued contact would endanger them or the child.ORS 107.137(1)(f)

Other things the judge considers

• The judge must not decide by looking at one factor alone and ignoring the others.ORS 107.137(2)
• When the judge writes a parenting plan, the judge may consider only the child's best interests and the safety of the parties. The judge may order equal parenting time, and may deny a request for equal time only with written findings that it is not in the child's best interests or endangers the parties' safety.ORS 107.102(5)(b)-(c)
• A judge may deny parenting time only if it would endanger the child's health or safety. A judge must deny parenting time to a parent convicted of rape that resulted in the child's conception.ORS 107.105(1)(b)
• State policy is to assure children frequent and continuing contact with parents who have shown they can act in the child's best interests, and to encourage parents to make their own plan.ORS 107.101, 107.149

What the judge may not consider

No preference for a parent based only on gender. A parent's disability can be considered only if behaviors or limits linked to it endanger or will likely endanger the child. A parent's conduct, marital status, income, social environment, or lifestyle can be considered only if it is causing or may cause the child emotional or physical harm (ORS 107.137(3)-(5)).

Joint custody

No presumption. The judge cannot order joint custody unless both parents agree to it, and if the parents agreed to joint custody in an order, the judge cannot overrule that by giving sole custody to one parent.

Domestic violence

If a parent has committed abuse (as defined in the Family Abuse Prevention Act), the law presumes it is not in the child's best interests to give that parent sole or joint custody. This presumption can be overcome. A judge may not give sole or joint custody to a parent convicted of rape if the rape resulted in the child's conception.

Who has custody before a court order

If parentage is set by a filed Voluntary Acknowledgment of Parentage, the parent who has physical custody of the child when it is filed has sole legal custody until a court orders something else. The same rule applies when parentage is set in a court or child support case: the parent with physical custody when the case is filed has sole legal custody until a court order. The first time a court decides custody, neither parent has to prove a change of circumstances. Once parentage is established, unmarried parents have the same custody and parenting time rights as married or divorced parents.

Establishing paternity

How

Both parents can sign a Voluntary Acknowledgment of Parentage Affidavit (form 45-21; Spanish 45-21S) and file it with Oregon Vital Records. It must be notarized, or witnessed by hospital staff within 5 days after birth. Once it takes effect it is the same as a court finding of parentage. A signer can cancel (rescind) it within 60 days, or before the first court hearing about the child if that comes first; ask the Center for Health Statistics for the rescission form (no fee). After that, it can only be challenged in court for fraud, duress, or a material mistake of fact. The Oregon Child Support Program can also help set parentage, including free genetic testing, or you can ask a court.

Form

Voluntary Acknowledgment of Parentage Affidavit (45-21 (Spanish: 45-21S))

Cancellation form

Rescind of Voluntary Acknowledgment (request from Center for Health Statistics)

Agency

Oregon Health Authority, Center for Health Statistics (Vital Records)
https://www.oregon.gov/oha/PH/BIRTHDEATHCERTIFICATES/Pages/PaternityProcess.aspx
971-673-1147

Changing an order

You can ask the court at any time to change custody or parenting time in a judgment, by motion with the other parent served. To change custody, you must show that circumstances have changed and that the change is in your child's best interest. For joint custody orders the statute says this directly, and it says that if parents can no longer cooperate, that is enough of a change. The first custody decision after parentage is set by acknowledgment does not require a change of circumstances.

Law: ORS 107.135(1), 107.169(5), 109.161(1)

If the other parent does not follow the order

Every judicial district has a fast-track parenting time enforcement process with court forms. You file a motion with a copy of your parenting time order and serve the other parent. Unless you agree otherwise, the court must hold a hearing within 45 days. You may have to try mediation first, but you can ask to skip it for good cause. If the judge finds a violation, the judge can order make-up time, set a more detailed schedule, add conditions, require counseling or parent education, order the violator to post money that is lost if violations continue, award attorney fees, change support, or set a hearing to change custody. A separate contempt case can lead to fines or jail.

Law: ORS 107.434; ORS 33.055

Grandparent visitation

No separate grandparent statute (the old one was repealed in 2001). A grandparent, stepparent, foster parent, relative, or other person can ask under ORS 109.119. If you have an ongoing personal relationship with the child (at least 1 year of real contact), you can ask for visits, but you must prove by clear and convincing evidence that the parent's decision is not in the child's best interest. The law presumes the legal parent acts in the child's best interest. The judge may look at things like whether you recently cared for the child, whether the child would be harmed without relief, whether the parent encouraged the relationship, and whether the parent unreasonably cut off contact.

Custody by someone who is not a parent

A person with a child-parent relationship (they lived with the child and cared for the child's daily needs as a parent within the last 6 months) can ask for custody, guardianship, or visits. They must overcome the presumption in favor of the legal parent by a preponderance of the evidence, and the relief must be in the child's best interest. The judge can consider whether the parent is unwilling or unable to care for the child.

Custody and visitation in the order

Yes. The judge holds an ex parte hearing the same day or next judicial day. If you show abuse in the last 180 days, imminent danger, and a credible threat, the judge must, if you ask, give you temporary custody of the children, with reasonable parenting time for the other parent unless that is not in the child's best interest. There is no fee.

Military parents

For joint custody, a parent's temporary absence (up to 30 months) because of state active duty or federal active service in the Oregon National Guard is not a change of circumstances.

Law: ORS 107.169(6)