Custody is decision-making authority, and often follows the parent who has the most parenting time but is otherwise separate and distinct from parenting time, which is the time scheduled for each parent to have the children. Parties may agree to share joint custody and continue making decisions together for their child, but the court cannot order joint custody. Joint custody is only appropriate when parents have the ability to communicate and put the children’s interests first, and it is generally not appropriate if there is any significant degree of hostility between the parties which hinders their ability to communicate effectively or cooperate with one another.
Generally, the sole custodial parent will make decisions regarding which school the child will attend, which doctor the child will see and when, whether the child needs counseling, vision, dental or orthodontic care. Some parents additionally prefer to establish which parent will handle haircuts, piercings, and tattoos, or whether both parents will need to agree to any permanent changes to the child’s appearance. Some parents may also include specific provisions regarding religious decisions, which school district the child will go to, advanced notice for events and appointments for the child, etc. Parties may make their parenting agreement as detailed as they would like, and any agreement parties reach with limited exceptions is enforceable.
In determining an award of custody, the court will give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court will consider the following relevant factors, at minimum, generally giving special weight and attention to factors (e) and (f):
(a) The emotional ties between the child and other family members;
(b) The interest of the parties in and attitude toward the child;
(c) The desirability of continuing an existing relationship;
(d) The abuse of one parent by the other (which raises a rebuttable presumption against an award of custody to the abuser);
(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.
Regardless of a custody award, under Oregon law each parent must give the other parent advanced written notice of their intent to move 60 miles or more further distant from the other parent, and this requirement is generally incorporated into the judgment. Additionally, absent limited circumstances, each parent will have the continuing right to attend parent/teacher conferences, talk to and meet with teachers, doctors, counselors and anyone who educates or cares for their child, and obtain all paperwork related to their child such as report cards and medical records.
It is important to carefully consider what is most important to you, and focus your negotiation efforts on those issues. Often parents initially feel they need joint or sole custody of their children, when parenting time is really much more important to them. With some exceptions, the court generally attempts to keep things as they have always been where the children are concerned. If mom always handled medical and school decisions, mom will likely be ordered to continue to do so. If dad always coached the baseball team, dad will most likely continue to have the right to continue these activities with the children.
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The court will also give primary consideration to the best interests and welfare of the child in establishing the parenting time schedule, by considering the same factors above and any additional relevant information. Each county has established a local county rule parenting schedule (available on the county circuit court website) which generally divides parenting time between the custodial parent and noncustodial parent so that the custodial parent gets approximately two-thirds of the time and the noncustodial parent gets approximately one-third of parenting time, assuming no long-distance plan is needed. This division is thought to attempt to divide the high-quality weekend and free time between the parents, while additionally awarding the custodial parent the portion of each week generally devoted to work, school, homework, doctor appointments and sports.
Each county also requires parents to take a parenting class which then provides parents with access to 8 hours of mediation services at no charge, so that parents may have the assistance of a mediator in an attempt to work out some or all issues related to custody and parenting time. The more parties can resolve by agreement the less the court must unilaterally decide. Parties may reach agreements far more detailed, specific and tailor-made to their situations than a court can order. Most agreements between the parties are enforceable but similar rules and conditions could not be ordered by the court.
Said another way, with limited exception parties are free to reach any agreements they choose, and by agreement parties can enjoy the greatest flexibility in crafting a unique, tailor-made parenting plan. The same freedom does not exist for a judge issuing a ruling after the expense, stress and hassle of a formal trial. There are great limits to what a judge may order as part of a custody and parenting plan.
This extra flexibility is usually appreciated in crafting rules about the children being around new partners (when and under what circumstances this may occur), being exposed to or continuing to learn a certain religion, or having access to certain people or substances. Parties may agree to such rules, but a judge cannot order such without clear evidence that such an order is necessary to prevent a risk of harm to the child. Generally, parties have the greatest control and flexibility to craft the best plan for their family if they resolve their case outside of a formal trial.
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