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Español- What factors are considered by a judge when deciding custody?
- Can a parent who has committed violence get custody?
- If my child was conceived as a result of rape, can the parent (offender) get custody?
- Should I start a court case to ask for supervised visits?
- Where can I get additional information about custody in Oregon?
- If I move to a new state, can I transfer my child custody case there?
What factors are considered by a judge when deciding custody?
The judge will always evaluate the best interests of the minor child when making a custody determination. No preference, in general, is given to either the mother or the father.1 In Oregon, “best interests” is based on the following factors:
- the emotional ties between the child and other family members;
- the interest and attitude a party seeking custody has towards the child;
- the desirability of continuing an existing relationship;
- the abuse of one parent by the other; see Can a parent who has committed violence get custody? for more information;
- the preference for the primary caregiver if the court determines s/he is fit;
- the willingness of each parent to support a continuing relationship with the other parent and the child. However, this factor will not be considered if:
- one parent abused or sexually assaulted the other parent or the child; and
- a continuing relationship with the abusive parent would endanger the health or safety of the parent or child; and
- any other factors that the judge decides are relevant.2
The judge may consider the following additional factors related to either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the child:
- behavior (conduct);
- marital status;
- income;
- social environment; and
- lifestyle.1
If a parent has a disability, as defined by the Americans with Disabilities Act, the judge can only consider his/her disability in determining custody if the judge finds that his/her behaviors or limitations related to the disability are endangering or will likely endanger the health, safety or welfare of the child.1
1 ORS § 107.137(2) – (5)
2 ORS § 107.137(1)
Can a parent who has committed violence get custody?
The judge will evaluate many factors when determining custody.1 If one parent has committed violence, however, there is a “rebuttable presumption” against that parent getting custody. In other words, the judge will assume that it is not in the best interest of the child to grant that parent joint or sole custody but the abusive parent can present evidence to try to change the judge’s mind.2 The law does not have a similar presumption when it comes to an abusive parent getting visitation. For advice on how a judge will consider violence when deciding visitation, you may want to talk to a lawyer. Go to our Oregon Finding a Lawyer page for legal referrals.
1 ORS § 107.137(1)(d)
2 ORS § 107.137(2)
If my child was conceived as a result of rape, can the parent (offender) get custody?
If the parent (offender) has been criminally convicted of any of the following crimes under Oregon law (or under similar laws in another state) and the rape resulted in the conception of the child, the judge cannot give the offender sole or joint custody:
- rape in the second degree, which is sexual intercourse with a child under age 14; or
- rape in the first degree, which is defined as:
- sexual intercourse by force, regardless of the victim’s age;
- sexual intercourse with a child under age 12; or
- sexual intercourse with a child under age 16 where the victim is the offender’s sibling, child, or step-child.1
However, the offender still has the obligation to pay child support.2
1 ORS §§ 107.137(6)(a); 163.365; 163.375
2 ORS § 107.137(6)(b)
Should I start a court case to ask for supervised visits?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to OR Finding a Lawyer to seek out legal advice.
Where can I get additional information about custody in Oregon?
We hope the following links to outside sources may be helpful.
Oregon Law Help has information about child custody and parenting time in Oregon.
The Oregon Judicial Department also provides information about Oregon custody law and related topics as well as court forms.
WomensLaw.org is unrelated to the above organizations and cannot vouch for the accuracy of their sites. We provide these links for your information only.
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.
