Custody and Parenting Time
Whether you are married or not, when you and your partner have children, and your relationship ends, it is important to spell out who has custody of the children, and who is the non-custodial parent. The non-custodial parent will be awarded parenting time.
The custodial parent is the parent who makes decisions regarding your children’s education, religious upbringing and medical care. Once one parent is awarded custody, in order to modify that order and change custody, the other parent has the burden to establish that there has been a substantial change of circumstances regarding parenting since the last order granting custody. If you want to share custody with your ex, then you need to agree to it outside of the courtroom. An agreement regarding custody is a great resolution to the case so long as you and your ex see relatively eye to eye on major issues regarding the children and maintain enough of a line of communication that you can talk with one another about the children.
In determining custody and parenting time, the courts seek to determine what is in the best interests of the children. The courts consider the following relevant factors which are laid out in ORS 107.137:
- The emotional ties between the child and the other family members
- the interest of the parties in and attitude toward the children
- the desirability of continuing an existing relationship
- the abuse of one parent by the other
- the preference for the primary caretaker of the child if the caretaker is deemed fit by the court
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship with the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that continuing the relationship with the other parent would endanger the health or safety of the other parent or the child.
This statute also provides that if a parent has committed abuse, as defined by ORS 107.705, there is a rebuttable presumption that it is not in the best interests of the child to award sole custody or joint custody of the child to the parent who committed abuse.
The rebuttable presumption usually comes into play if you filed for a restraining order against the other parent, and after a contested hearing, the judge upheld the restraining order. Again, the presumption is rebuttable which means the parent who has the restraining order upheld against him or her, can present evidence to the judge showing he or she is a good parent and should be awarded custody.
The non custodial parent gets a parenting plan which should lay out clearly and in detail, when the children are with each parent. If parents agree to a parenting plan, the plan can specify the hours, days of the week and holidays that each of parents want the children. For instance, some people work rotating shifts, and want flexibility when it comes to specifying what days of the week they want the children. If you and your ex agree, you can arrange to give your ex notice in advance when you get your work schedule and arrange to have the children on your rotating days off. If you work out your plan together, you can ensure you get the holidays most important to you. For instance, I’ve had some clients who tell me they always celebrate Christmas on Christmas Eve, that Christmas Eve is their most important family gathering time. In cases like this, if parents agree, the holiday can be split so that the parent who wants Christmas Eve always gets that night, and the other parent gets Christmas Day. Its best to agree to a parenting plan if at all possible so you can make arrangements that work best for your lifestyle and schedule. If you cannot agree to a parenting plan, the Court will order a plan that takes into consideration what is in the best interests of the children. Typically, the Court will base a parenting plan on the school calendar where the children live, taking into consideration all the three day weekends, when there is a Monday or Friday holiday, school furlough days, or conference days. Generally, parents will agree to alternate longer holiday breaks such as Thanksgiving, Winter Break, and Spring Break.
When it comes to summer break, courts will take into consideration the ages of the children, the children’s interests and activity commitments and the availability of the parents. Orders regarding summer vacation can vary enormously. Its not unusual for a non custodial parent to have more time with the children during summer vacation if that parent lives a significant distance from the home of the other parent and does not get a lot of parenting time during the school year. Often parents agree to divide the summer on a week on week off basis, or two weeks on two weeks off, even though they may follow some other plan during the school year. Again, the bottom line is what is in the best interests of the children and how to best support the relationships the children have with their parents.
A well written parenting plan will also include a location for exchanges of children. Exchanges can be at the home of the parent whose parenting time is beginning or ending. Exchanges can also be at some half way point between the two homes if both parents are sharing transportation and live a distance from one another. When there is conflict between parents or a history of abuse, most parents do an exchange in a well lit, safe public place. I often suggest a library, or a grocery store parking lot that is well lit.
When you and the other parent cannot agree on custody or parenting time, then we have to prepare for a trial. If your case goes to trial, I will fight as hard as I can for what you want. I will prepare you and your witnesses to the best of my ability for the trial so that when your trial date arrives, you are as comfortable as possible, under the stressful circumstances of being in court. Sometimes a trial is simply inevitable given the differences perspectives and experiences of the parents. I’ve had clients who have already agreed on sharing parenting time but cannot agree on custody. If you and your ex do not see eye to eye on issues regarding education, religion, and/or medical care, then you may find yourselves in court over who gets custody. For example, if you strongly believe in public education, but your ex wants the children to go to private school, you may be headed to court for a custody ruling. Similarly, if you don’t believe in immunizations for your kids but the other spouse does, again, this is a custodial issue that could bring you in front of a judge.
You can also find yourself in court for a ruling on parenting time even though you and the other parent agree on custody. This can arise if you and your spouse cannot decide on what is a good schedule for the children. You might want to share custody 50-50, but don’t want to do week on week off, and the other parent feels strongly that week on week off is best. Or, you may want to limit the other parent’s time with the children to alternate weekends, and the other parent wants more time. These cases vary widely and depend on where you live, the distance between your home and the other parent’s home, the ages of the children, and what the children do after school. Your parenting plan can become even more complex if your children are teenagers and they suddenly want an after school job, become seriously involved in an after school activity, or decide they want to spend less time with you and more time with friends. I refer to these cases as “the teenage cases”, and they can be challenging. Nonetheless, with a few adjustments to a parenting plan, most parents can work these issues out well.
Modifications: Everything changes with time and so do most parenting plans, as sometimes, custodial arrangements. Modifications often arise when a parent decides he or she wants to move. Moving often requires permission from the other parent, and if the other parent says no to the proposed move, you may find yourself back in court.
If parents agreed to joint custody in an original order, and now find they cannot agree on issues relating to the children for whatever reason, its not uncommon for one or the other to go back to court and request sole custody. Modification of sole custody is more complicated and there is a significant body of case law relating to custody modifications. Generally, modifications of sole custody occur when something substantial and unforeseeable has occurred since the last custody order relating to parenting and it is in the best interests of the children to modify the custody order. For instance, if the safety, health and/or welfare of the children is at stake, the court will examine a request for custody modification very seriously.
Severe parental alienation can be a factor judge’s examine closely when it comes to making a modification regarding both custody and parenting time. Its important to support the relationships your children have with the other parent, regardless of how you feel personally feel about your ex. Parents have to remember that although their relationship with the other parent has ended, they will continue to co-parent and share important events in their childrens’ lives forever. There will be school events, graduations, weddings, holidays and births of grandchildren that will always bring you into contact with the other parent. It is best for your children to go out of your way to act as kindly as possible to the other parent and support the relationships between them. Nonetheless, there are often situations that arise where one parent acts terribly towards the other and interferes with that parent’s relationship with the children. A parent can deny the other parent their parenting time, or refuse to answer the phone and let the other parent speak to the children. Sometimes a parent is justified in denying access to the children, if there are issues of violence, abuse or safety involved. These complex situations usually bring the parties back to court for a modification.
Move aways often involve modifications. Its best to work out an agreement with the other party if you want to move. Moving can drastically affect the non-custodial parent’s ability to parent his or her children if it affects parenting time. Courts are reluctant to allow custodial parents to move away when significant relationships between parents and children can be affected by the move. That being said, depending on your circumstances, you may be allowed to move and the parenting plan altered. Factors the courts consider include the quality of the relationship between the children and the non-custodial parent and the reasons for the move. As children become older, often a judge will agree to listen to the preferences of the children in making decisions that affect custody and parenting time. It is wise to request the judge to speak to the children in the privacy of his or her chambers, away from the presence of both parents. If both parties have lawyers, the lawyers are often present in chambers when the judge talks to the children.
Custody and parenting time cases can be highly volatile and stressful because parents love their children, do not want to be separated from them, and deeply believe that they know what is best for their children. These cases involve enormous conflict when you and the other parent disagree on the issue of what is best for the children, how much time each parent should spend with the children and who should make decisions for the children. When you are angry or very hurt over the end of a loving relationship, issues regarding children are often even more difficult to resolve. As a custody and family lawyer, I understand how difficult a time this is for you. I try hard to listen carefully to you, and assist you in making the best decisions possible . If your case proceeds to trial because you cannot settle out of court, I will do my very best to empower you with making important decisions and feeling as comfortable as possible with the process and outcome.
