How Courts decide Child Custody Cases

How Courts decide child custody and parenting time?

Factors that the court will apply in deciding who will get custody.

There are a number of different factors that influence how Courts decide child custody cases in Oregon. There are the obvious things like lifestyle choices of parents that can play a big factor, such as drug addiction or alcohol dependency. A history of domestic violence or other abusive behavior may also disqualify a parent from being a child’s custodial caretaker. In the absence of a very obvious disqualifying characteristic, courts consider things like the emotional ties between the child and other family members such as siblings or other relatives. Additionally, they take into account how interested each spouse is in the child’s wellbeing and each spouses’ attitude toward the child. The Court weighs the desirability of continuing an existing parent child relationship as opposed to changing that relationship.

The preference for the primary caregiver is probably the most significant factor in how courts decide child custody. The primary caregiver is the parent who has done the majority of the child raising responsibilities – getting them ready for school, making sure they have health insurance, getting them to the doctor, taking care of the day to day responsibilities. This is what’s known as the primary caregiver and that person is given a custodial preference when the court has to decide custody.

The big mistake made by some primary caregivers

What often messes up a custody case for the primary caregiver is showing an unwillingness to facilitate a close relationship between the child and the other parent. For example, if a mother takes the position that the child belongs her because she put in all the effort to raise the child, and she doesn’t allow the father to have a good relationship after the divorce, she may be in for a surprise. What the court will do in this case is say that what’s more important than having the primary caregiver be the custodial parent, is having the custodial parent be willing to make sure that the child has a strong relationship with both parents.

There are cases where I’ve represented people who were not initially awarded custody, but the court modified custody later because the primary caregiver was not doing a good job facilitating a relationship with the other parent. This is frequently referred to as parental alienation and is unfortunately a more common problem than one would think. We have very good experience recognizing the signs of parental alienation and presenting such a case effectively to the court.

The child’s preference

Some parents will put a lot of weight on the child’s preference. But the child’s preference only really matters later in life with regard to how Courts decide child custody. The court will give almost no weight to the child’s preference when they’re under 12 years old. When they’re older than that they start to have more independence as a human being and the court won’t force a 16 year old boy, for example, to go spend parenting time with his Dad if says that he doesn’t want to do it. The child at that point is becoming his own person and are close to being considered an adult and a court will treat them with deference.

For younger children courts will often appoint a lawyer to represent a child. This attorney conveys that child’s preferences, needs and feelings to the court. Child attorneys can be very helpful by talking to young children and representing their interests to the parents and their attorneys. This has the effect of increasing everyone’s awareness of the child’s needs without directly involving children in what can be very tense litigation.

Child custody and parenting time is one of the first things that the court addresses in a divorce case on a temporary basis. The court will revisit custody and parenting time decisions frequently.  They revisit the temporary parenting plan at the end of a divorce case and can change it completely based on what they learn throughout the case. Custody can be modified throughout the child’s life. It is something that the court could be constantly weighing in on from the moment that the parents separate until the child turns 18.

Henry LeSueurHow Courts decide Child Custody Cases