Below are some facts about custody laws in Oregon and links to other sites for additional information.
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. 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;
- the preference for the primary caregiver (if the court determines s/he is fit); and
- the willingness of each parent to support a continuing relationship with the other parent and the child (unless it is shown that one parent abused or sexually assaulted the other parent or child and that a continuing relationship would endanger the health or safety of the parent or child).*
All of these factors and any other factors the judge decides are relevant will be evaluated when determining custody. If one parent has committed abuse, the judge must assume that it is not in the best interests of the child to award sole or joint custody to the abusive parent. However, the abusive parent can try to present evidence to change the judge’s mind.
Additionally, the court may consider conduct (behavior), marital status, income, social environment, or lifestyle of either party ONLY if it is shown that any of these factors are causing or may cause emotional or physical damage to the child. If a parent has a disability (as defined by the Americans with Disabilities Act), the judge cannot consider his/her disability in determining custody unless the court finds that his/her behaviors or limitations that are related to the disability are endangering or will likely endanger the health, safety or welfare of the child. Furthermore, no preference, in general, is given to either the mother or the father.**
* ORS § 107.137(1)
** ORS § 107.137(2) – (5)
Can a parent who has committed violence get custody or visitation?
Possibly. The court will evaluate many factors when determining custody.* If one parent has committed violence, however, the court will assume that it is not in the best interest of the child to grant that parent joint or sole custody. The abusive parent can present evidence to the judge to try to change the judge’s mind though.**
Note: If the father has been convicted of forcible rape, statutory rape with a girl under age 14 or incest with a child under age 16 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 father sole or joint custody. However, he still has the obligation to pay child support.***
* ORS § 107.137(1)(d)
** ORS § 107.137(2)
*** ORS § 107.137(6)(a)
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?
We hope the following links to outside sources may be helpful.
Legal Aid Society of Oregon has a number of resources about custody and related issues, including:
- answers to frequently asked questions about Oregon custody law, such as questions concerning how courts decide custody and whether a custody order can be changed;
- information about parenting time (visitation); and
- information about parenting time for survivors of domestic abuse.
The Oregon Judicial Department also provides information about Oregon custody law and related topics, including:
- information regarding parenting plans;
- information on modifications and where to file your petition;
- an explanation of the difference between sole and joint custody; and
- family law 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.