Your children are the most important things in the world to you. It’s completely natural to want to spend as much time with them in your life as possible. However, if you and your child’s other parent are not living together, then you may not be able to make that happen as much as you need.
After all, both of you will likely want to have your child around. This is where child custody agreements come into play. In Oregon, when parents are in disagreement over who should have custody over a child, one parent can file for custody as long as the parents are not married.
Once this happens, the Oregon judicial system will take the case and decide who will receive custody of the child and how it will work. To a large extent, this takes the matter out of your hands. However, it is still possible to include your child in the custody process.
The Elements of Child Custody
In order to understand how to involve you child in the custody process, it’s important to understand how Oregon handles custody matters. There are several elements to custody, and they will affect where your child lives and who can make decisions for them.
Physical vs. Legal Custody
There are two separate types of custody that courts award: physical and legal. Physical custody refers to where a child lives. The court will determine who has physical custody of a child to help identify that child’s permanent home.
Legal custody, on the other hand, refers to the decision as to which parent can make legal decisions for the child. Legal custody also carries the legal responsibility to care for the child. Whoever has legal custody over the child is responsible for their care and wellbeing.
Sole vs. Joint Custody
Both physical and legal custody can be awarded jointly or solely to the parents. Either both parents can share in either form of custody, or the judge can award it to one parent specifically. They are not necessarily connected, either. It is possible for both parents to jointly share physical custody but only one parent is awarded legal custody, or vice versa.
Oregon courts most frequently award sole physical and legal custody to the same parent. This is because in Oregon, joint custody isn’t awarded unless both parents agree on it. Joint custody has very few differences from the rights parents have prior to a custody agreement. In many cases, the court is hearing the case because one parent filed for custody after they couldn’t come to an agreement with the other parent regarding parenting. If the court awards joint custody in this situation, they haven’t given either party a definitive resolution to the conflict.
When one parent is awarded sole legal and physical custody of a child, the other parent is frequently given “parenting time.” Also known as visitation, this gives both parents time with the child while keeping the child’s surroundings as stable as possible. Parenting time can range from a few hours once a month to regular weekends and time in the summer. However, parenting time does not come with legal rights like custody does.
How Courts Determine Custody
When a judge is determining custody, they take many factors into account. Their goal is to make a decision that’s in the best interests of the child, not necessarily to be fair to either parent. With this in mind, Oregon judges are instructed to consider:
- The child’s emotional ties to other family members
- The parents’ respective interest in and attitude towards the child
- Whether abuse was involved in any relationship surrounding the child
- Whether it is desirable for the child to continue an existing relationship
- The parents’ respective willingness to allow the other parent to remain a part of the child’s life
- The child’s preference regarding their primary caretaker
The court considers these elements. No one specific element will completely determine who has custody over a child. This means that your child may not get to have any real input on who becomes their primary caregiver. In fact, minors have no legal say in custody decisions in Oregon. Until they turn 18, a child is bound to follow the court’s decision and live with the parent who is awarded custody.
This intended to help children see the best outcomes. While a child may prefer one parent, that parent may not be prepared to raise a child on their own. Similarly, that parent may have behaviors that a child should not be exposed to, such as addictions or criminal activity.
Even if the child’s preference is not harmful, many courts prefer to avoid asking them anyway. This is seen as making the child “pick a side,” which is not seen as being in the child’s best interest. If you want your child to be involved in the custody process, you will need to advocate for them.
Including Your Child in Custody Decisions
If you are working to keep your child involved in the custody process, good for you. A divorce can be stressful for children, and offering them the chance to have input into custody can help things feel less overwhelming. You can help them have a say in how their future will look.
First and foremost, it’s important to talk to your child. If your child has a preference, the easiest way to find out is by discussing it with them. However, you should take care to remain neutral, no matter what your child’s preference is. You are working to give them agency, not making them play favorite.
Next, you should request that your child’s opinion be heard in court. A qualified family attorney can help you and your child be heard during the custody process. An experienced attorney will understand how the court weighs different aspects of custody, and will be able to help you both stand up for what you want. They can help your child’s opinion be heard and at least considered, if not followed.
Separating from a partner can be hard enough as it is. Adding child custody disagreements only makes it more stressful. If you are facing a custody case or a modification, you should reach out to a local family law attorney today to discuss your options.