Oregon Divorce Frequently Asked Questions

If parents are able to discuss and choose the legal custody arrangement themselves or with the help of a mediator, it can save them substantial legal costs, stress and conflict. Otherwise, custody is usually negotiated between each parent's attorneys as a part of their divorce settlement.

If the attorneys are not able to reach settlement, the decision is made by a family court judge. An adjudicated custody case is usually the most expense, time consuming, and difficult process to determine custody, and often involves the use of an in-depth custody evaluation by a family therapist.

• Sole Custody. Either parent can have sole custody for the child. While they may discuss or include the other parent in decisions, the parent with sole custody ultimately has the legal right to make the major decisions for the child.
• Joint Custody. Both parents can have joint custody of the child, meaning they have equal authority to make the major decisions for the child. If parents are not in agreement about the major decision, they need to work together and/or get outside help from a mediator or counselor until they are able to make the decision together. Otherwise they may each legally pursue sole custody in order to make that decision.
• Nonparent Custody. In rare cases when neither parent is available, has the capacity, or is deemed by child protective services as unfit to parent, a different family member or the State may be awarded custody of the child.

The judge will assess and make a custody ruling based on the best interest of the child(ren). Some of the many factors the judge considers are:

• Who has been the child's primary caregiver
• Emotional attachments of the children to the parents and other family members in the parent's home
• Each parent's parenting style and attitude towards the children
• Which parent is most likely to support the other parent's close relationship with the child
• Each parent's home environment, health, emotional stability
• The child's health, age, and gender
• For older children (14 +) the court may consider the child's wishes
• Any history of criminality, drug use, or abuse by the parents

Legal Custody identifies who has the legal right for making the major decisions regarding each child and who is legally responsible to care for each child. "Major decisions" are not regular, daily parenting choices, but more significant or lasting decisions in specific topic areas. In Oregon, these areas include residence, education, health care, and religious training. Legal custody is distinct from the amount of time you each spend with each child (your parenting time schedule). For example, the parent with more parenting time may not be the parent who has legal custody of the child.

Physical Custody is a term that is rarely used in current Oregon family law. It is a designation of which parent the child lives with the majority of the time.