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10 Things to Know About Custody

1. Custody vs. Parenting Time

In Oregon, custody and parenting time do not necessarily have anything to do with each other.  Statistically, the parent with "custody" typically has the majority of the parenting time, but that is not a requirement.  Custody grants a parent the right to make decisions for the child, such as which school they will attend, and non-emergency healthcare decisions - whereas parenting time is merely what time each parent spends with the child.

2. Custody vs. Child Support

Oregon child support has nothing to do with custody (nothing).  The Oregon child support calculator doesn't even factor in which parent has custody.  See No. 5 below for more information about child support.

3. Court Preference for Mother vs. Father

In Oregon, the courts are not supposed to favor the mother over the father (and visa versa).  Traditionally, mothers stayed at home with the child while fathers worked.  These traditional roles led courts to consider these roles as "primary care giver" and "primary financial supporter".  Recently, courts are seeing a shift in these two roles - as fathers are being laid off and mothers are heading back to work.  Statistically, mothers are still being awarded custody more often than fathers - but that does not change the fact that courts are not allowed to favor one parent over the other based on gender.

4. Mediation

Mediation allows the parties to meet without their attorneys to try and agree upon custody and parenting time.  Many Oregon courts require mandatory mediation before parties are allowed to proceed to trial.  Oftentimes, the court has resources which pay for a certain number of hours of mediation (no cost to the parties).  Information and offers put forth in mediation are not allowed to be used as evidence at trial - and the mediator is not allowed to testify either.

5. Child Support

Oregon child support is calculated according to Oregon's Uniform Child Support Guidelines.  The child support guidelines are based upon the provisions in Oregon's Administrative Rules (OAR).  Basically, child support will be calculated by taking into account each party's gross monthly income and amount of annual overnight parenting time.  There are other factors that can significantly affect child support - such as: non-joint children, daycare expenses, and certain rebuttal factors.

6. Parenting Time

Parenting time in Oregon will be set forth in the Parenting Plan.  Oregon law requires that a parenting plan be established by the court - either according to what the parties can agree upon, or by the court's order according to what is in the child's best interests.  Mediation can often help parents come to an agreement on a parenting plan.  Some Oregon counties have standard parenting plans which courts may use (but are not required to use) for the non-custodial parent if the parties cannot agree otherwise.

7. Modification of Custody (and Parenting Time)

After an Oregon court has entered an order regarding custody and parenting time, parties are not allowed to "modify" the court's order without an additional order (called a "supplemental" judgment).  Although parents are often encouraged to be flexible and allow changes in the written plan that are mutually agreed upon, if one parent insists that the parenting plan be followed, the other parent must comply.  Even if the parties have entered a written agreement outside of formal court proceedings, the written agreement is not court enforceable.  If either party wishes to change (modify) custody or parenting time, they (or their attorney) must file a motion with the court for modification.

8. Custody Study

Sometimes the clear choice for custody is not an easy one for the court to make - for instance, if both parents have played a substantial role in raising the child, and both parents contribute equally to the family's income.  In cases where both parents are each seeking sole custody, the court may order a "custody study".  If a custody study is ordered, the parties are required to cooperate with an expert (who is approved by the court) who will interview each parent, the child, and possibly other significant people in the child's life.  Oftentimes the custody evaluator will request references from each parent.  Occasionally, the custody evaluator may require one or both parties to undergo a psychological evaluation.  Although the court has the final say as to who will be awarded custody, the custody evaluator's report is often given very heavy consideration and courts often follow the evaluator's recommendations.

9. Legal Custody vs. Physical Custody

Legal custody refers to which parent makes decisions on behalf of the child (such as which school the child will attend, and non-emergency healthcare decision).  Physical custody refers to which parent's home is considered the child's primary residence.  Although (technically) a court can award one parent "legal" custody and the other "physical" custody, this situation rarely arises.  Sometimes parents agree to this type of situation when one parent lives in a better school district, but the other parent should have legal custody.

10. Sole Custody vs. Joint Custody

Oregon permits two custody schemes: sole custody and joint custody.  Sole custody permits the custodial parent to make the decisions for the child (see No. 9 above), whereas joint custody allows both parents to participate in these decisions.  Oregon law permits joint custody ONLY when both parents agree to it.  If either parent insists upon sole custody, or refuses to agree to joint custody, the court MUST order sole custody for one of the parents and cannot award joint custody.

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