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Oregon Custody & Visitation
Custody & Visitation
Custody of children is established in divorce, legal separation, paternity, guardianship, or psychological parent proceedings.
There are two types of custody: sole custody and joint custody. Each situation is unique regarding the amount of parenting time to the mother and the father. The type of custody granted also affects which parent has the final say in major decisions about the child's upbringing, such as education, religion, and medical care. In Oregon, joint custody requires the agreement of both parties.
In determining custody and visitation issues, the court looks to the best interests of the child. This is a complex standard and involves consideration of parental capacity, which parent has had custody of a child during a separation, the attachments of the child to the parent, and other issues. Mothers and fathers are not to be treated differently in the process, but often a parent who has been the primary day-to-day caretaker of the child will be favored.
Reasonable and consistent visitation for the non-custodial parent is preferred in most situations, regardless of the nature of custody. Visitation restrictions, including supervision, may be required due to the age or special needs of the child, in cases of abuse or because of the limitations of the non-custodial parent. Oregon law does not mandate any particular schedule, but frequently a court will refer to guidelines adopted in a particular county. Under new legislation, the custody and visitation arrangements will be described as a parenting plan, and parents will be encouraged to jointly agree to such a plan.
Low cost or free mediation is required in many counties and can be helpful in most cases. More complex cases may require an evaluation by a psychologist or social worker. Many Oregon counties now require parents to attend a parenting class before a custody or visitation order will be made. All concerned should seek to minimize involving children in custody and visitation disputes, except in consultation with an attorney or counselor.
If parents cannot agree to a custody or visitation arrangement, they may request that a custody evaluation be performed by a social worker or psychologist.
What to Tell Your Children
Once a you have made a decision to separate, it is important that you make a commitment to work to limit the emotional damage to your children, both individually and with the other parent. This means both parents must cooperate and put the children's interests first, in spite of any anger or hurt between you. The following guidelines may be helpful in talking to your children after you have decided to separate.
If possible, you should both meet with all of your children together to tell them about the separation.
Never suggest that the separation is the fault of the other parent, and express your sadness about the separation, to allow your children to grieve without having to conceal their feelings.
Let your children know that the two of you will always be their parents and that both of you will always love them.
Explain to your children that they will live primarily with one parent, but will frequently and regularly stay with the other parent.
Stress that your children did not cause the separation. Make it clear to them that divorce or separation is an adult problem caused by adults.
Assure your children that they will be taken care of.
Don't go into endless detail about why you are separating.
There are many books on this subject you may obtain from a bookstore or your local library. Upon filing a case involving custody, Multnomah, Clackamas and other counties now mandate parenting classes that discuss these issues in detail. These classes can be attended alone or with the other parent. If you have children and are considering separating from your partner, you should obtain professional legal advice as soon as possible.
Joint custody involves equal decision-making power by each parent over the child's life. Both parents share the rights and responsibilities for major decisions concerning the child, including the child's residence, education, health care, and religious training. Joint custody does not necessarily mean that the child lives with each parent for equal times. A joint custody arrangement may specify one home as the child's primary residence and designate one of the parents to have sole power over specific decisions. A joint custody arrangement may be tailored to meet the specific needs of your family.
Joint custody is not for every family. Joint custody is recommended only for parents who can communicate effectively about their children. In Oregon, a judge will not order that the parents have joint custody unless both parents agree.
If Joint custody is not agreed upon, parents may still agree to share parenting time and consult with each other on parenting issues. Upon filing a case involving custody, Multnomah, Clackamas and other counties now mandate parenting classes that discuss these issues in detail. These classes can be attended alone or with the other parent.
If you decide to share joint custody of your children with the other parent, you should obtain professional legal advice before making a final decision.
Rights of a visiting parent may be enforced through a contempt proceeding. A visiting parents, whose rights are being interfered with may file a motion with the court and compel the appearance of the custodial parent. Before hearing the case, the court will require the parents to attempt to resolve their dispute through mediation. If the court finds interference with visitation, the court may sanction the violator, including jail in extreme circumstances. The court may also order make-up visitation.
If the custodial parent severely interferes with the non-custodial parent's visitation rights, the non-custodial parent may consider filing a motion with the court to change custody from one parent to the other. However, when determining a change of custody, the court will consider what is in the best interests of the child, and not just the custodial parents' interference with the visitation schedule. In other cases, difficulties may require a modification of the visitation schedule.
Relocation - Its Effect on Child Custody and Visitation
Generally, the courts will allow a custodial parent to relocate to another state, even over the objections of the non-custodial parent. But each case must be considered on its own facts and in each cases, a move must be in the child's best interests. In some situations, a court may not allow the parent to relocate, or may change custody from the custodial to the non-custodial parent. The court will consider the following factors: the child's age and connections to school, friends, and other families; the child's attachment to the relocating parent; whether the parents previously agreed the child would not be moved; whether the move is primarily intended prevent the non-custodial parent from visiting with the child.
Generally, in order to change custody a parent must show that there has been a substantial change in circumstances since the last custody order. The Oregon courts have determined that a move out of state by a custodial parent is not, in and of itself, a sufficient change of circumstances. The non-custodial parent would have to also show that the move will have a significant adverse impact on the child.
If you are the non-custodial parent and your child is being relocated, you have the right to modify your visitation schedule and make your visits more reasonable. Often this means having fewer but longer visits with your child.
Whether you are the relocating parent or the parent being affected by the change, you should obtain professional legal advice as soon as information about the relocation is known.
If there is a dispute between parents regarding custody or a visitation schedule, the parents may agree or the court may order that the parents undergo a custody evaluation. In an evaluation, a social worker or psychologist will interview and observe both parents and the children, and other relevant people acquainted with the family, in order to make a determination of what is in the best interests of the children. Psychologists will often also perform a variety of mental heath testing on the parents. Many courts have a family services department which can perform these evaluations at a relatively low cost. If the parents agree or if there are complicated mental health or substance abuse issues, the court may order a private evaluation be performed. A private evaluation may cost anywhere from one to four thousand dollars. If the parents cannot agree to a custody and visitation schedule after hearing the recommendations of the evaluator, either parent may call the custody evaluator as a witness in a custody or visitation trial.
Custody evaluations can be helpful tools in determining what is in the best interests of the child. All concerned should seek to minimize involving children in their custody and visitation disputes, except in consultation with an attorney or counselor. To choose the appropriate evaluator and provide the evaluator with the most relevant information you should seek professional legal advice.
Paternity establishes the legal status of a child's father. Paternity proceedings will also establish custody, child support, and visitation rights of both parents. Paternity proceedings may be initiated by either mother or father, or the state, when a child has been born out of wedlock. If either party disputes that the alleged father is the natural father of the child born out of wedlock, they may request that the mother, alleged father, and child all take part in DNA testing of blood or saliva. Professional testing is usually very reliable. Once paternity has been established, either by agreement of the parties or by parentage testing, the court may determine custody, child support, and visitation rights of both parents, based on the best interests of the child.
If the father is not the biological father he may still have some rights as a psychological parent.
If you have been served with paternity documents, child support requests, or would like to file a paternity petition, you should obtain professional legal advice as soon as possible.
In Oregon, the juvenile court handles cases involving dependent and delinquent children. A dependent child is generally one who has been abused or neglected by a parent or custodian. A delinquent child is one who has committed an act which would be considered criminal if he or she were an adult.
Juvenile court proceedings often affect family law actions, such as divorce, separation, custody and visitation. In most cases, the juvenile court case will be consolidated with the family law case, and the juvenile case will be considered the controlling case.
Children in delinquency cases are always entitled to attorneys, and the court will appoint one if a child cannot afford an attorney. In dependency cases, an attorney is usually appointed for the child, but in some cases, a court appointed special advocate, or CASA, may advise the court about the child's best interest in place of, or sometimes in addition to an attorney.
If, after hearing all the evidence, a juvenile court finds that a child has been abused or neglected, or a parent is unable to provide for the child, the court will remove the child from his home. The child may be placed the child in a third party's home, a relative if possible. When a relative is not chosen, the State Office for Services to Children and Families, or SCF, will place the child in a foster home. Even if a parent is deprived of custody, in almost all cases they are entitled to reasonable visitation and contact with their child. The affected parent will be offered services and a plan to regain custody of the child. When a court is satisfied that a child is no longer in danger of abuse or neglect, the child will be returned to a parent's home. In some extreme cases, the court will terminate the parent's rights.
Juvenile court proceedings are serious and complicated matters. Having an attorney represent you is important. In some cases, third parties such as grandparents or psychological parents may become parties or be given formal status in a juvenile court case. These parties should also consult with an attorney to determine their rights.
Modifying Your Custody or Visitation Order
Your custody or visitation order may be changed or modified by either a written agreement between you and the other parent or by the court after a hearing. Regardless of which method you choose, you must formalize your agreement in writing, have it signed by a judge, and file it with the court.
For a court to modify a current custody order, the requesting party must show that a substantial and unanticipated change of circumstances has occurred since the previous order was filed. These changes of circumstances usually involve a custodial parents' inability to care for the children, and an improvement in the parental abilities of the non-custodial parent. Sometimes other factors such as remarriage or relocation are considered. Mediation and custody evaluations are often used to help resolve disputes over modifying custody orders.
Unlike custody changes, you may seek to modify your visitation schedule at any time. You do not need to show that there has been a substantial change of circumstances, but you must show that modifying the current schedule is in the child's best interests.
To file for divorce, either 1) the couple must have married in the state and at least one spouse must be a resident of Oregon or 2)the person filing for divorce has to have been living in Oregon for at least six months before filing the divorce papers in the county where the petitioner lives.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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