Parental Rights FAQ
Q:Do you have parental rights if you have not established paternity?
A:There are two types of paternity: legal and biological. Biological paternity gives you certain rights under the U.S. Constitution; however, until you have created or established legal paternity, you won’t have legal rights within the courts. If you are on the birth certificate as the child’s father and you have an acknowledgement of paternity, then you will have both legal and biological rights. If you have not established legal rights, then you will need to file a Petition for Filiation, and in that proceeding the court will establish your legal rights. Once you’ve established paternal rights, you can potentially file for custody or ask for parenting time.
Q:What are the factors that determine parenting time schedules?
A:There are several factors we assess to help build parenting plans for clients. These factors include the parents’ location, how many children they have, the ages of their children, , whether the children are in school, each parent’s religious preferences , and what travel restrictions or challenges the family might have. There is no “one size fits all” plan that we use for our clients each parenting time schedule we work on is created uniquely. We really take each family’s needs into consideration to determine what will work best for as long as possible. Ideally, we like to create plans that will last for at least 5-7 years so that families don’t have to go back to court and modify their schedule more often than necessary. Our goal when creating parenting plans is to help you plan for the future and identify potential issues with decision-making so that the plan we create will work proactively against any foreseen problems.
Q:When is the best time to modify a parenting plan?
A:In order to modify a parenting plan, you must first file for a hearing, which will occur five to six months from the date the modification is filed. If you’re looking to modify, you don’t want to file within a month of the expected change—you will need to plan further out. If you’re in the middle of the school year and you’ve recognized some problems with your parenting plan, don’t wait until August of the following year to get those changes in place in time for the next school year. Rather, you should be taking action in February or March so that you have ample time to get in front of a judge and get those changes in place before it’s too late. When anything changes in your parenting plan, speak with an attorney. Depending on the details of your case, an attorney may advise you to file right away or wait a while.
Q:How does the Tax Cuts & Jobs Act impact the child dependency exemption?
A:Prior to 2019, the dependency exemption for children averaged about $4,000 per dependent child. The new Tax Cuts & Jobs Act, which will impact your 2019 taxes and future tax filings, the exemption is now worth $0. You don’t get an automatic exemption for each qualifying child. The new law does allow you to qualify as head of household, which increases your standard exemption. In order to qualify as head of household, however, you must meet several other conditions. As we previously stated, having a dependent previously granted filers $4,000 plus exemption. However, under the new Act, you also have to qualify as head of household. Another interesting aspect about the Tax Cuts & Jobs Act is that you only get one head of household exemption overall. So, having multiple qualifying dependents does not impact your tax burden. Only one child per family allows you to qualify as head of household—this means that you cannot stack dependency exemptions anymore.
Q:What are your options if you don’t approve of your ex’s significant other?
A:Unfortunately, once your court case has ended, there isn’t much the court can do to help with your problems regarding your ex’s boyfriend or girlfriend. Some court orders will state that you are prohibited from introducing your children to a significant other for a stated amount of time, but not all court orders include this stipulation. Other orders may go into specifics about when the children can be introduced to a significant other and who must be present. Without those provisions, you don’t have a lot of legal remedies to control your children being around your ex’s significant other, unless they are causing the children harm or there are other concerns regarding their well-being due to abuse. If there is any suspected abuse, you have every right to use legal action to protect your children.
Q:Can you take your kids on vacation if it interferes with your ex’s parenting time?
A:It depends on what your judgement says. If you have a written parenting plan in your judgment, you can’t just violate the parenting plan because you want to take your kids on vacation. However, many parenting plans have a provision that states the parents can agree to alter the parenting plan together, so long as it is in writing. This should be your first step if you want to take your kids on vacation during your ex’s parenting time. Try to negotiate, or go to a mediation with your ex, to see if you can come to an agreement. If you can, make sure the modification for the vacation is in writing, and have it signed by both parties.
Additionally, most judgments provide for some amount of summer parenting time so that both parents have the opportunity to take their child on vacation. For example, a judgment may say that each parent has a two-week block of time during the summer, during which time a vacation is an open option. This allows some flexibility during the summer for parenting time when the kids are out of school. If your judgment does provide for this, you should try to take your vacations during his time to avoid any further complications with the parenting plan.
Q:Can a parent move out-of-state with their children post-divorce?
A:When dealing with a move-away case, the first thing to review is the dissolution judgement and the supplemental judgement regarding custody and parenting time, if applicable.
Most judgements have a provision within them stating that neither party should move residence more than 60 miles from the other parent without advanced notice to the parent and the court. This stipulation allows the other parent to file a modification and either ask for custody of the children, the creation of a long-distance parenting plan, or some other form of accommodation if the custodial parent moves.
Move-away cases are some of the most complicated cases family law attorneys handle because the move must be in the child’s best interest, not in the parent’s best interest. Oftentimes, parents want to move for job opportunities or because of the promise of a raise in another state, however, the court is unlikely to find such reasoning is in the best interest of the child.
Q:At what age can your child decide where they want to live?
A:That’s a difficult question to answer. Technically, a child can decide where he or she wants to live once they reach adulthood at the age of 18. However, there are many instances when a younger teenager is able to drive is very verbal about a desire to live elsewhere. This type of issue can cause emotional upset and strife in the home, which may lead parents to make a change. Although the technical answer is 18, each case is very dependent on the specifics of that given situation and the people involved.
Q:What are your parental rights in Oregon?
A:As a mother or father, you’re entitled to many parental rights, even if you’re not a custodial parent. Some of these rights include the ability to inspect school and medical records, as well as the right to be in contact with certain people affiliated with your child. You can also make emergency medical decisions on behalf of your child, unless otherwise ordered.
Q:When is it appropriate to hire an attorney for your children?
A:When your children are older, they don’t have a say in where they’re going to live because Oregon law states that they don’t become adults until they’re 18 years of age. However, courts are directed to listen to the desires of children more as they get older, as long as their desires are reasonable and aren’t born out of an idea that they just “want” to live with one parent over another. If you have a child who is hesitant to spend time with your spouse or ex-spouse, consider their reasoning. Unless the child’s reason for refusing to spend time with one parent is simple because they don’t “like” that parent at the moment, it might be helpful to hire their own advocate.
Cases involving younger children who can’t advocate for themselves often use custodial and parenting time evaluations to help with the legal process because young children can’t reasonably articulate why they want to be with one parent over the other. Older children, on the other hand, could benefit from the help of an attorney appointed specifically to their case, especially if they want their voice to be heard. An attorney can ensure the child’s interests are protected and advocated for, but the child won’t necessarily need to address the judge themselves.
Q:What can you do if your spouse threatens to take the kids?
A:You have a couple of options in a dissolution and custody case if your ex-spouse threatens to take the kids. The first would be a status quo order. A status quo order would freeze your child’s schedule, as well as their regular place of residence with whichever parent they’ve been living with, based on how and where the child lived in the last 90 days. However, this may not be an option if you haven’t had the same schedule for the last 90 days, if you’re looking to move, or if there are strategic reasons why you may not want to file.
A second option is a temporary relief order, which essentially asks the court to grant a temporary parenting plan for the duration of your pending dissolution or custody case. Temporary relief orders typically take a few months to go through the court, so you could be waiting for 2-3 months before your temporary parenting plan is in place. Unfortunately, with family law, there isn’t always an immediate fix to immediate problems. Status quo orders and temporary relief orders are the only way to prevent your spouse from using a temporary parenting plan to take off with your kids while your case is pending.
Q:What is a parent coordinator and when should I consider asking the court to appoint one?
A:A parent coordinator (PC) is an independent third party who is appointed to make decisions when the key parties can't reach an agreement on their own. Most PCs are attorneys, but some are therapists or counselors. Sometimes PCs are authorized to make recommendations, which can be confirmed and enforced by the judge at a later date. A PC can also be vested with the authority to make changes to your parenting plan. PCs can be a useful resource if you and your ex frequently disagree or if you are going through a particularly high-conflict divorce. PCs are much more readily available and can review cases much more quickly than the court usually can. Parent coordinators can be a better alternative to court because they can help parties remain peaceful and productive by encouraging them to focus on their kids, have more productive conversations, and can even help their clients avoid costly litigation.
Q:At what age do children get to choose which parent to spend time with?
A:There's no provision in Oregon law that allows a child to choose whom they’d like to spend parenting time with, regardless of age. Until a child turns 18 and becomes an adult, their parents (or the court) will decide how their time is divided. That doesn't mean, however, that there aren't situations where the court won't listen to a child's wishes. However, there is no law that requires the court to follow those wishes. In some instances, children may need their own attorneys to advocate for their own interests, whether they are dealing with a custody evaluation, or if the child needs to be prepared to testify in court.
Q:As a grandparent, do you have visitation rights?
A:Unfortunately, grandparents do not receive visitation rights automatically. In Oregon, you would have to pursue a third-party custody case, or a parenting time case in order to obtain visitation rights. These are extremely complicated and actually have several constitutional elements to them. That being said, there have been many successful cases where third parties, (grandparents, for example), have asserted those rights.
Q:What can you do if your ex is refusing you parenting time?
A:There are many mechanisms available in order to enforce parenting time. For a noncustodial parent, or for that matter a custodial parent, a parenting time enforcement action may be appropriate. A parenting time enforcement action is a motion, declaration, and order filed with the court to inform them that your parenting time has been wrongfully denied. If your parenting time is wrongfully denied, the party responsible could incur penalties, such as make-up parenting time, fees for a bond, or the loss of parenting time via a court order.
A custodial parent also has the ability to obtain an order of assistance if the non-custodial parent denies their parenting time. Once the order of assistance is signed by a judge, it will go to the sheriff and the sheriff can then execute that order and deliver the child to the custodial parent. Enforcing an order to this extent and asking authorities to bring the child to a custodial parent is an excessive remedy and should be avoided if at all possible. However, if absolutely necessary, it is something we can help you obtain.