A custody and parenting time case is started when one parent files a petition for custody and parenting time. The parent who files the petition is called the petitioner. The other parent is called the respondent.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a law that controls which state can decide issues of custody and parenting time. In most cases, if all of the children you are asking the court to address have lived in Oregon for the six months before you file the Petition, Oregon courts can make a decision. You must provide certain information before an Oregon court can decide custody or parenting time. UCCJEA (ORS 109.701-109.834)
If you have any other orders or judgments about custody or parenting time from other states, or if any of your children have not lived in Oregon for six months before you file, you should see a lawyer.
How are the parties notified?
After the petition is filed, the respondent must be served with a copy of the petition. This means that the respondent is given a copy of the petition that was filed with the court and a summons. The respondent can agree to sign an “acceptance of service” that says he or she has received the petition. Otherwise, the sheriff or another adult who meets the legal requirements must give the respondent copies of the papers. If the petitioner, the sheriff or process server cannot find the respondent, the petitioner may ask the court to allow the respondent to be served by publishing a notice in a newspaper or posting at the courthouse or another means of alternate service.
How much time does the respondent get to file papers?
Oregon law gives a respondent 30 days after service of the petition to file a response with the court. If the respondent does not file a response, the petitioner may be granted everything he or she asked for in the petition. If the respondent files a response, the court may set the case for trial, mediation, or a settlement conference, depending on the court’s procedures.
Also, Oregon requires parents to take a class that helps them understand the impact of divorce and separation on children and how parents can help them. For more information, see the Parent Education page.
The court charges a fee for filing custody and parenting time petitions and responses. There are additional fees for service, settlement conferences, and trial. A party to a case may ask for a fee waiver or deferral if he or she cannot afford to pay the court or service fees.
Lawyers usually charge money to represent a person in a custody and parenting time case. The more complicated the case, the more the attorney fees will be. Lawyers will explain their fees and billing procedures to clients. You may call the Oregon State Bar Lawyer Referral Service for help finding a lawyer who offers payment plans. The number to call is (503) 684-3763 from the Portland area, or 800-452-7636 from elsewhere in Oregon. An online referral request form is also available at www.osbar.org/public/ris.
The length of time it takes to get a judgment of custody and parenting time depends on the complexity of the case and the court’s timelines. A case may move quickly if the parties agree. If a judge has to make decisions, the case will take longer.
The respondent has 30 days after being served to file a response. A party may have 10 to 30 days to file a response to a request for temporary orders (this time period depends on local court rules).
Each court may have additional timelines for mediation
, parenting classes
, and other requirements. You should check local court rules for these requirements.
Judgments can be modified (changed) as circumstances change. The court can address changes in custody, parenting time, and support. A judgment may be changed later. Both parents can agree or either parent can file a motion to modify. For one parent to change custody or support he or she must show that there has been a substantial change of circumstances since the last custody or support order. The change in custody or parenting time must also be in the best interest of the child. A request for modification should be filed in the same circuit court that entered the judgment you want to change. If either party lives in a different judicial district than the one that entered the judgment, you may request that the case be transferred. If you want an Oregon court to change a judgment from another state, you should speak with a lawyer. An Oregon court may not be able to change an out-of-state judgment or order.
Custody (Legal Decision Making)
There are two common types of custody in Oregon: joint custody and sole custody. The type of custody parents have determines who will have final authority to make major decisions. Major decisions include, but are not limited to the child's religion, education, health care, and where the child lives.
The term joint custody in Oregon means the parents share decision-making responsibilities for a child. Joint custody does not mean that a child lives with each parent half the time. In fact, parents may have joint custody even when a child lives exclusively with one parent.
A judge cannot award joint custody in Oregon unless both parents agree to it.
Joint custody does not do away with a parent’s child support obligation. Child support is determined by the child support guidelines and is based on the parents’ income, the amount of time that the child spends with each parent, and other factors.
If either parent objects to joint custody, a judge must decide which parent will have sole custody. Sole custody in Oregon means that the custodial parent makes all major decisions regarding the child.
Factors a Judge Will Consider
A judge's primary consideration in deciding how to award custody is the best interest of the child. To decide the best interest of a child, the court will look at these factors:
The emotional ties between the child and other family members
The interest of the parents in and attitude toward the child
The desirability of continuing an existing relationship
The abuse of one parent by the other
The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
A judge cannot give custody to a parent just because the parent is the mother or father of the child. Also, the judge will consider the conduct, marital status, income, social environment or lifestyle of a parent only if it is shown that those factors are causing or may cause emotional or physical harm to the child. Judges usually are reluctant to separate siblings.
A judge may consider a child’s preference about where he or she wants to live. A judge does not have to follow the child’s wishes. This is true no matter the age of the child, although the wishes of older children carry more weight than those of younger children. Allowing a child to testify in court in a custody case is something to think about very carefully because of the emotional impact it may have on the child.
In deciding custody, a judge may rely on the testimony of expert witnesses. Expert witnesses may be psychologists, social workers, teachers, counselors, or psychiatrists. Sometimes an expert witness may testify about a custody study or custody evaluation. These studies can be helpful to a judge during a custody trial. The judge also considers the testimony of the parents/parties and other witnesses who know about the child or know about the parents/parties.
Parenting time addresses when the children will be in the care of each parent. A parenting plan, whether agreed to by the parents or ordered by the court, must spell out the minimum amount of time each parent will have with a child. In many counties in Oregon, before a court will make a decision regarding custody or parenting time, the court requires the parents to try to work out a plan in mediation. If the parents cannot agree, the court will make parenting time decisions.
Under Oregon law, no matter who has custody, both parents almost always have the right to access the child’s school, medical, dental, police and counseling records. Both parents usually are able to authorize emergency medical care. In addition, Oregon law requires most parenting plans to restrict a party from moving more than 60 miles from the other parent without telling the other parent and the court before the move.
A parenting plan may be changed if a different parenting plan would be in the best interest of the child.
Supervised Parenting Time
If you have concerns about the safety of your children while in the other parent’s care, it may be possible to ask the court to consider supervised parenting time. This means the judge will order that your children only have contact with a parent when a third party is present during the parenting time. Check with your local court or mediation program to see if there are professional supervised parenting time providers in your area. It may be helpful to contact the provider before choosing to list them in your court papers to find out information about their fees, hours, and program policies.
A child's grandparent may be granted an order for reasonable visitation if:
- The grandparent has established or attempted to establish ongoing personal contact with the child
- The custodial parent has denied the grandparent reasonable opportunity to visit the child
Grandparents may petition the court during the parents' dissolution (divorce), separation, annulment, unmarried parents custody case, or if there has been a change in the circumstances relating to the parent or the minor child. The Oregon Judicial Department does not offer forms for this. For information on where to find court forms that are not on our website, see the OJD FAQs page. This process can be complicated and you are strongly encouraged to consult with a lawyer for assistance.
"Parenting time" is a term that courts use to describe the schedule of contact between a parent and the children. Parenting time used to be called “visitation.” Parenting time can be an agreement between the parents or can be court ordered. Parenting time is designed to benefit the children.
What is a parenting plan?
A parenting plan is the part of a court order that deals with custody and parenting time. “Parenting time” addresses when the child/ren will be in the care of each parent. The term “visitation” is no longer used in this situation. All orders about custody must include parenting plans. Parenting plans may be detailed or general, but usually must identify a minimum amount of parenting time for the parent who does not have custody.
What if my spouse/partner threatens to take the kids?
Courts can make temporary orders while the outcome of a divorce or separation case is pending. If your spouse/partner is keeping the children from you during your divorce or custody case, you can ask the court to put a temporary parenting plan in place until your case is finished. If you and your spouse/partner cannot agree, the permanent decision about custody and parenting time will be made by the court. The court looks at several factors in deciding who should have custody.
How is child support determined?
Oregon has standardized guidelines for the calculation of child support. The guidelines consider a number of factors including; income and spousal support, parenting time percentage (how much time the child/ren spend with each parent), health insurance and childcare costs. You can look at the guidelines and calculate support by visiting the Division of Child Support’s website.