If you and your spouse have children, your divorce will likely involve many complicated legal and emotional issues. If you are interested in custody (sole or joint), you need to speak with a family law attorney immediately. If you are not interested in custody, you are still responsible for your children’s welfare and need to discuss with your Oregon family law attorney how you will continue to support them.
During the divorce process, it is important that you consider the impact of your every action on your children, their emotional state, and their routines. Maintain as much stability and consistency as possible in their lives. You should also resist any temptation you may feel to disparage your spouse to your children, to discuss the details of the divorce, or give them the reasons for the divorce. Tell them only that they did not cause the divorce and that both of their parents love them and will continue in their lives.
If you have minor children with your spouse, the Oregon family law court will require both of you to attend a mandatory parenting class before you can be divorced. Your children do not attend, and you may attend a separate class from your spouse. The classes are group lectures that inform parents about the impact of family restructuring on children in divorce and custody cases. There is a small charge for the classes.
The classes usually cover:
Oregon child custody laws involves three different aspects, each of which the court will decide in your divorce:
Oregon child custody laws define “legal custody” as the decision-making ability of the parents in the lives of the children. This can be sole or joint/shared. A parent with sole legal custody is solely responsible for deciding major medical decisions for the children, where the children will attend school, whether and where they will attend church, etc. Parents with joint legal custody in Oregon must agree on these matters. A parent who does not have legal custody may still make everyday decisions (such as sports activities and minor medical decisions) for their children while the children are with that parent.
Parenting time (previously called “visitation”) is the right of one parent to spend time with the children, especially if that parent does not have legal custody of the children. If one parent is awarded sole legal custody, then the other parent is usually entitled to “reasonable parenting time” under Oregon child custody laws. Oregon law allows for any parenting time arrangement that meets the children’s needs to be ordered.
Oregon child custody laws are intended to determine what is in the best interests of the children. Your minor children will likely have frequent and continuing contact with both parents, so long as each parent will act in the best interests of the children.
However, the court will not order joint legal custody unless you and your spouse agree to jointly share that responsibility. The court will not order joint legal custody unless both parents agree to that arrangement. If the two of you don’t agree to joint legal custody, then Oregon law requires that one parent have sole legal custody and that the other parent have a right to reasonable parenting time (visitation).
Custody in Oregon is determined using the following factors:
The court usually does not consider:
The Oregon family law court will consider these last factors only if they can cause emotional or physical damage to your children. For instance, one Oregon family law court decision held that a parent could not have custody if he/she was a current illegal drug user, but that his/her past drug use was irrelevant to custody.
Courts deciding custody are not to give any preference to a parent because of her/his sex. This last sentence bears repeating, because there is so much popular misinformation about divorce. Oregon custody laws specifically state that divorce courts not give preference to either parent on the basis of that parent’s sex. However, as discussed below, custody is most commonly awarded to the children’s primary caregiver, who is often the mother.
Yes. While the factors listed above (see “How does the court determine custody?”) may appear helpful, in actual practice it is very difficult for judges to fully evaluate a family’s complex relationships in order to decide child custody. Often in disputed custody cases, the Oregon family law court will award legal custody to the parent who has served as the child’s primary caregiver (the parent with the most overnight parenting time) after separation. Getting advice from a lawyer early in the process, before you change your or your children’s living situation, can be crucial in maintaining future relationships with your children.
Again, the standard for custody is the “best interest of the child,” and often keeping siblings (or half-siblings) together serves the best interests of children. But there have been cases where the courts find siblings will do better separated.
Rather than the Oregon family law court deciding custody, spouses, along with assistance from their family law attorney, may work out a custody agreement. There is always a risk with a court decision, whereas a settlement, although a compromise, is a known quantity. Most Oregon courts require mediation of custody disputes to encourage parties to resolve disputes early in litigation.
In many cases, especially where both parents have helped care for the children and there is no abuse or current drug use, but the parents cannot effectively co-parent, it may not be clear how a divorce court will decide the issue of custody. A custody evaluator’s opinion, in addition to your lawyer’s past experience, may help you understand what the courts would likely decide and help you work out the best custody arrangement for your children.
Oregon child custody laws state that there is no age at which a minor child can decide their own custody and parenting time. Your child’s opinion may be considered in some cases, depending on the age and maturity of the child. The court may also appoint a separate Oregon family law attorney to represent your child and advocate for him/her. Most Oregon judges discourage either parent from attempting to have the children testify in Court.
The Oregon family law court may appoint (or you and your spouse may jointly hire) a professional child custody evaluator to assist in the custody decision.
In Oregon, a custody evaluator is usually a licensed psychologist or clinical social worker. The evaluator interviews your children, and may conduct home visits so that the evaluator can also review the children’s living areas. The evaluator interviews you and your spouse as well as your children’s teachers, doctors and family friends suggested by both parents, to determine which parent should have legal custody of the children.
This recommendation isn’t a determination of parental fitness or a competition between homes for the children. Rather, the evaluator attempts to assist the judge (who cannot spend hours with the family) by recommending the best situation for your children: which parent should have legal custody to make the decisions that the parents cannot agree on (such as school location), and what parenting time arrangement would be best for your children.
You or your spouse, or both of you, must pay the evaluator. But even if only one person pays the evaluator’s fee, the evaluator is neutral, rather than representing just one spouse the way that an attorney does.
An experienced Oregon family law attorney may be able to assist you in finding a capable, experienced evaluator for your case and help you prepare for your interview with the evaluator.
If a custody evaluator is appointed in your case, be sure to fully cooperate with the evaluator. Return phone calls, attend all scheduled appointments, and provide any documents or forms the evaluator needs. Treat the evaluator with professionalism and respect — remember that the evaluator is a neutral party, not your therapist, lawyer or advocate.
The evaluator is interested only in the custody and parenting plan issues of your divorce. Present relevant information to the evaluator in a calm, factual manner. You may tell the evaluator the facts about parenting issues that have occurred. However, be careful not to overly “bad-mouth” your spouse. An evaluator may recommend that your spouse have legal custody if you don’t seem willing to facilitate a continuing relationship between your children and the other parent.
The Oregon court is not required to accept the evaluator’s recommendations, as they are only advisory. However, most judges give significant consideration to the evaluator’s report along with the Oregon child custody laws when they make decisions about custody and parenting plan issues, along with other evidence.
Your divorce will include a parenting plan. You may have a “general” or “detailed” parenting plan.
A general parenting plan describes the minimum amount of parenting time and access that the non-custodial parent will have, and how you both will share parenting responsibilities. For instance, it may state that the children will primarily live with you and that they will spend a certain number of overnights per month with your spouse.
Under a general parenting plan in Oregon, you and your spouse will have to work out the details of parenting (such as exactly which nights the children will stay with which parent) afterwards, informally. You should use a general parenting plan only if you expect to be able to co-parent and negotiate comfortably with your former spouse for many years to come. It is difficult to go back to court to enforce the informal details of a general parenting plan, because the court order itself is phrased broadly and simply.
Detailed parenting plans describe your children’s residential schedule (including weekends, holidays, birthdays and vacations) in more detail. In Oregon, detailed parenting plans may also include provisions for decision-making and responsibility, information sharing and access, relocation of parents, telephone access, transportation between homes, and methods for resolving disputes.
If you and your spouse are unable to agree upon a parenting plan, the Oregon family law court will develop a detailed parenting plan for you. Even if you are able to agree now, your Oregon family law attorney will usually advise that a detailed parenting plan is often the best approach, because:
Most counties in Oregon no longer use standard parenting plans. In most counties in Oregon, the judge must craft a parenting plan that works best for the children based on the facts of the case. Oregon courts do recognize some guidelines for parenting plans for children that are very young (under the age of 3).
The Oregon family law court is likely to approve any parenting plan that is agreed upon by both you and your spouse.
Oregon child custody laws do not limit the information you can include in your detailed parenting plan, so many parents include provisions such as:
Such provisions may be difficult for the court to later enforce, but parents who agree together on such provisions may be more likely to follow them. Speak to your Oregon family law attorney about what level of detail you should have in your parenting plan.
In Oregon, once parenting plans are signed by the court, they may be modified in the future. You and your Oregon family law attorney should consider provisions in your plan for possible future events, such as remarriage, relocation, and the child’s later preferences about where to live.
It may be especially useful to cover smaller changes, such as at what point tardiness for parenting time cancels such time, when a parent must inform the other parent of selected vacations, and whether there will be make-up parenting time. If you find that you really want to change the parenting plan, an Oregon family law attorney with experience in parenting plan modifications can advise you on whether you have a case for modifying the plan.
Oregon parenting plans ordinarily prohibit you from moving more than 60 miles away from your spouse without giving the court and your spouse reasonable notice of your move. Post-divorce relocation is a separate and complicated issue (discussed in more detail in Part 7 of this guide).
If there are safety or abuse issues in your marriage or with your children, you may wish to consider a safety-focused parenting plan. In Oregon, you have three main options.
In addition to the parenting time and decision-making provisions detailed in your parenting plan, both parents always (unless ordered by the court) have certain rights in Oregon:
In practice, enforcing these listed rights requires only that you ask for this information. At your child’s school, ask when parent-teacher conferences are scheduled and ask that your child be assigned two conferences (one for each parent). Ask your child’s teacher to set up a second cubby or folder with second copies of report cards and school flyers for you. Call your child’s doctor and ask for a copy of his or her medical chart.
Note that parents who are involved in family counseling with their children, or whose children are in counseling themselves, may need legal advice regarding the ability of the other parent to obtain treatment notes and other records from the counselor.
The Oregon child custody laws allow both parents to access this information from third parties (like doctors and schools). The law does not require one parent to provide the information to the other parent. However, one parent’s unreasonable refusal to provide such information could be punishable by the court, depending on the circumstances.
Both parents, regardless of custody, also have certain responsibilities to the other parent after divorce according to Oregon child custody laws. You must both provide current addresses and contact telephone numbers to each other. You must also immediately notify the other parent of any emergency circumstances or substantial changes in the health of your children.
Parental rights are strongly favored in Oregon. It is very difficult to terminate a person’s parental rights, and almost all divorcing parents have the right to a relationship with their children after divorce. However, a person’s parental rights may be terminated in Oregon if the court finds it in the child’s best interest because of that parent’s abuse or neglect of the child. (A felony conviction, incarceration, or failure to establish paternity is not a reason for termination of rights in Oregon.)
In Oregon, a person cannot voluntarily give up parental rights, except where another adult (often a stepparent) adopts the child. Relinquishment of parental rights and adoption are complex matters that have their own legal processes, separate from your divorce case. If you have questions about this issue, discuss them immediately with your Oregon family law attorney.
Termination of parental rights ends any future obligation for child support. Termination sometimes also ends any obligation for past-due child support, if the court agrees to such an arrangement.
In addition to you and your spouse, grandparents and other people with strong emotional ties to your children may have visitation.
According to Oregon child custody laws, non-parents can obtain visitation in two ways:
In rare cases, yes. The non-parent must show a “child-parent relationship” existing in whole or in part within six months before the action was filed. Additionally, the Oregon family law court must find a compelling reason to award custody to the non-legal parent.
A compelling reason means that the child will be unduly harmed, physically or psychologically, by giving custody to the natural parent. Oregon child custody laws provide that natural parents always have the right to custody of their children, unless there is a compelling reason for non-parent custody. An Oregon child custody dispute involving a non-parent is different from a child custody dispute between parents because the “best interests of the child” standard (that applies to child custody disputes between parents) does not apply.
Non-parent visitation or child custody disputes can be emotionally and legally challenging, with repercussions into your extended family and community. Whenever possible, you should obtain advice from an Oregon family law attorney experienced in non-parental custody disputes.
If you have legally adopted your stepchild, then in Oregon you have the same parental rights and responsibilities as the natural parents, including a right to custody and child support if eligible.
If you have not legally adopted your stepchild, then your parental rights and responsibilities will probably change with divorce. Any financial obligation you have to your stepchildren ends when the Oregon family law court enters your divorce judgment. A non-adoptive stepparent may also seek visitation and child custody and should seek the help of an Oregon family law attorney with experience in cases involving stepparent issues.
If you and your spouse have minor children, then your divorce will need to address child support. Determining Oregon child support may be complicated. Future contingencies can drastically affect your children’s support needs. The total amount of child support to be paid can be considerable and collection of support can be frustrating. To ensure the proper level of child support is provided for your children now and over time, legal advice on child support is strongly recommended from a qualified Oregon family law attorney.
All children under age 18 may be entitled to Oregon child support unless they are married, emancipated, or have become self supporting. Additionally, children over 18 and under age 21 may be entitled to child support if they are attending school half-time or more.
In Oregon, either parent may be ordered to pay child support.
Maybe. The court’s interest is to ensure that there is adequate parental money to support the child. The Oregon child support guidelines calculates child support amounts based on parental income levels. If the parents agree on a child support amount that is different from the Oregon child support guidelines, but which is still adequate to support the child, then the court usually will order that agreed child support amount.
If the custodial parent’s household income is high enough to fully support a child, then the court may allow that parent to completely waive support for that child. However, the Oregon family law court is not bound to an agreement of the parents. Even if you and your spouse agree to a child support amount, the court can order a different amount instead, usually determined from the Oregon child support guidelines.
Oregon child support is determined by the court based on consideration of all income of each parent, including income from employment, self-employment and rental properties. If a parent is not employed on a full-time basis, the Oregon family law court may consider the earnings history and potential of said parent.
Many times parents agree on the child support factors (for instance, income figures) and the court will simply enter these numbers into the Oregon child support calculator to determine child support. The overnights each parent has with the children are also factored into the Oregon child support calculator. Also, the costs of health care insurance (for the parents and for the children) and childcare costs affect the amount of Oregon child support ordered. Some cases involve the application of rebuttal factors.
These other reasons for departing from the Oregon child support guidelines may include:
For couples with high net worth, it is crucial that your Oregon family law attorney also has relationships with accountants and tax professionals to analyze the family assets and calculate Oregon child support appropriate for your situation.
If one parent is unemployed or employed less than full-time, Oregon courts then look at “imputed” or “potential” income for that parent, unless they can prove that there is good cause for the underemployment. Good cause might be a shortage of jobs in the parent’s field or if they are going to school. If there is no good cause, the court determines the underemployed parent’s imputed income by calculating either (1) probable earnings based upon the parent’s recent work history, occupational qualifications, prevailing job opportunities and earning levels in the community; or (2) income from full-time work (40 hours per week) at the current Oregon minimum wage. The larger number is that parent’s imputed income.
If ordered to pay Oregon child support, a parent is legally obligated to make those payments, even if the parent does not receive parenting time with the child. Parenting time and receipt of child support are considered separate rights by the Oregon family law court. Thus, one parent cannot withhold child support because of missed parenting time, and a parent may not deny the other parent parenting time because of missed child support.
Oregon child support payments are made monthly. The parent paying child support may pay the amount directly to the other parent, or may be required to pay the Oregon Child Support Program (which will then pass on the payments to the receiving parent, often by direct deposit).
If a parent fails to pay Oregon child support, the other parent may go back to the Oregon family law court or request assistance from the Oregon Department of Justice’s Child Support Program to collect the support. Collection steps may include wage garnishment, bank account garnishment, seizure of retirement plan funds, liens on property, seizure of tax refunds, revocation of passports, suspension of drivers’ or business licenses or even jail time.
Yes. The Oregon child support order and amount can be adjusted in future years based on changes in each parent’s income, changes in the parenting plan as well as changes relating to the needs of the child.
Oregon law generally provides that child support will continue for each of your children until that child turns 18 years old and thereafter until 21 years old if said child is attending school half-time or more. Different provisions may apply if a child is significantly disabled.
The Oregon family law court will probably require that the parent required to pay child support also maintain life insurance coverage with the child as beneficiary, the other parent as trustee, and a constructive trust over the insurance proceeds. The purpose of life insurance here is to protect the child’s right to monetary support: if the paying parent dies, then the child will have about the equivalent amount available as an insurance payout.
However, life insurance provisions can have future complications. Parents who pay Oregon child support may be angry at the idea that their former spouse will receive a large sum of money at the time of their death. You should discuss with your divorce attorney how to best create a life insurance provision for your case.
Your Oregon child support order will also contain provisions regarding health care insurance for your children and payment of any uninsured health care costs. If you or your spouse can provide medical and dental insurance for your children privately, through a public program, or through an employer, you may be required to do so. If neither of you has access to health insurance for your children, then the court may order a certain monthly or percentage amount of cash medical support.
Cash medical support is the additional amount a parent is ordered to pay to help with the cost of health care coverage by the other parent or to help with the uninsured medical expenses of the child. Even if you have health insurance for your children, the court may order cash medical support for uninsured expenses. This is often framed as a percentage and may be based on the parties’ comparative gross incomes. For instance, if the parent ordered to pay child support earns about 80% of the parties’ joint earnings, then that parent may also be ordered to pay 80% of any uninsured medical expenses for the children.
It may be difficult to have an Oregon court enforce payment of uninsured health care expenses after they are paid, and it may be difficult for some parents to communicate with each other about these expenses as they arise. Therefore, sometimes parents will make arrangements for a periodic accounting of these expenses, possibly through their family law attorneys.
As with health care expenses, your Oregon child support order will also consider payment of any childcare related to the custodial parent’s job, active job search or job training and education. This is often framed as a percentage based on the parties’ comparative gross incomes.
Unless your Oregon child support order says otherwise, child support will continue for each of your children until that child turns 21 years old, if the child is attending school half-time or more.
There are some restrictions:
In addition to child support, your Oregon divorce decree may include a provision for payment of post-secondary (college) expenses. This may include only direct educational expenses, such as tuition and books, or it may also cover rent and a monthly cash allowance.
If you and your spouse are able to agree on a provision regarding college costs, then you may be able to include many restrictions or requirements that a court-created Oregon child support order would not usually include. For instance, your agreement could include a maximum degree cost, semester expense accounting by your child, indexing the support amount to costs at your child’s state college, or requirement of payment through a Section 529 prepaid tuition plan.
After separation or divorce, the custodial parent is responsible for filling out the Free Application for Federal Student Aid (FAFSA). (Read the FAFSA instructions carefully, as they may define “custodial parent” differently than your divorce judgment.) The custodial parent must list any child support and/or spousal support received from the non-custodial parent on the FAFSA. The FAFSA does not otherwise consider the income and assets of the non-custodial parent. However, some private colleges do consider the non-custodial parent’s income and assets when determining financial aid.