Child Custody FAQ
Q:How do you modify a child custody order in Oregon?
A:Custody is modifiable anytime there has been a significant change in circumstances. As long as either parent can argue that a change in custody would be in the child’s best interest, the court may consider a legal modification. Generally, in order to modify a custody order previously issued by the court, you must file a motion, declaration, and order to show cause. At that point, the other party will be invited to court to explain why custody should not be changed.
General circumstances that may lead to a custody change include: one party is moving out of the area, a child is underperforming in school, abuse has occurred, etc. One of the things to keep in mind if you’re trying to modify child custody is the relevance of the inquiry since the issuances of the last custody order. You can bring in evidence prior to the last custody order to say what the circumstances were then, but the court will be far more interested in discovering what has changed since the last custody order. Ultimately, the court must be convinced that it is in the child’s best interest to change the custodial parent.
Q:What’s the difference between parenting time and custody?
A:Traditionally, custody refers to the amount of time you get to spend with your children. Today, we legally use two terms: custody and parenting time. Parenting time refers to the scheduled time you spend with your children, (do they stay with you on Mondays or over the weekends, for example). Custody, on the other hand, refers to which parent has the legal right to make certain decisions for your children. There are two types of custody in Oregon: joint and sole. If you have sole custody, you get to decide where your child will go to school, what types of long-term medical your child will use, and whether your child will receive a religious education. If you have joint custody, you and your ex-spouse will share the responsibility of making these decisions together.
Q:What is the difference between joint and sole custody?
A:In Oregon, a judge cannot order joint custody unless both parties agree upon it themselves. That means, that if one party doesn’t want to share joint custody, the court will award only one spouse with sole custody. The parent with custody gets to make decisions on three major fronts: education, religious education, and long-term medical care. If you have joint custody, you should be working together with your ex to come to mutual decisions about these matters. If you have sole custody, it is still in good form to consult your ex-spouse regarding these decisions, even though you aren’t legally required to do so. However, if you and your ex disagree, you, the custodial parent, are at liberty to make whatever decision you feel is in your child’s best interest.
Q:What should you do to change your custody, parenting time or child support agreement contained in your judgement?
A:You have to modify your current agreement. Sometimes you can obtain a modification through the agreement of both parties, and sometimes a modification requires the court’s intervention. It all depends on the details of your particular case.
Q:What is a custody evaluation?
A:There are two types of situations where parents should seriously consider hiring a custody evaluator. If there is a legitimate question about whether you or your spouse are the primary caregivers for the child, and you can’t agree on where the child should live, you should hire a custody evaluator. In these situations, a custody evaluation can be very helpful when determining what the most appropriate parenting plan and custodial agreement should be for your kids.
You should also consider bringing in a custody evaluator if there are concerns about domestic violence, addictions (such as drugs and alcohol issues), or any other domestic issues within your family that you think the court needs to have a heightened awareness of. A custody evaluation can be instrumental in providing information to the court about how to develop an appropriate and safe parenting plan for your children.
Q:If my ex gets sole custody of the kids, will I still be able to see them?
A:Absolutely. Oregon handles custody and parenting time separately, so even if you do not have custody, you can still spend time with your children. Custody refers to a parent’s responsibility to make major decisions for the kids (medical, schooling, religion, etc.), whereas parenting time refers to the kids' actual schedule. Oregon has two types of custody— joint and sole custody. If you have joint custody, you and your co-parent will make major decisions together. If one parent has sole custody, that parent will make the big decisions by themselves. Because custody and parenting time are not necessarily related, one parent could, hypothetically, have sole custody of the kids and the non-custodial parent could still have the kids 50% of the parenting time.