As a divorce lawyer, I am constantly discussing child custody issues with clients. One of the first questions that I often receive is “what does joint custody mean and how can I get it?” ORS 107.169 is the Oregon statute that defines joint custody. “[J]oint custody” means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care and religious training.” Basically, the idea is that the parents will work together to make all decisions regarding the child even though they are divorced or are having a court decision made regarding their child.
A court cannot order joint custody. The parties have to agree to it. The legislature figures that if people have to have a court make a decision regarding the children then they will not be able to work together regarding their child.
The parties have the right to define the scope of joint custody. Under the statute, “An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.” This means that if a parent has a strong concern about the other parent’s ability to make a decision for the child regarding a specific issue (i.e. a difference of opinion regarding private vs. public school) then the parties can agree to have only one parent have decision making on that issue.
Joint custody has no effect on parenting time or child support. An agreement to share custody does, however, usually lead to the parties being able to reach a settlement regarding the other issues as well.
Joint custody is subject to modification by either parent. The statute provides: “Modification of a joint custody order shall require showing of changed circumstances and a showing that the modification is in the best interests of the child such as would support modification of a sole custody order. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order.” The parties must clearly demonstrate these requirements to the court. In a recent trial of mine where I represented the children, both parties asked for a modification from joint to sole custody. The court refused to grant the modification because neither party actually testified to any difficulty in making decisions jointly.
At the end of the day, joint custody is an important emotional decision. It is important for children to have a united parental front even if the parents are not together. It is important for both parents to believe that they have input into their child’s life.
Before making a decision regarding custody, I suggest that a parent have a consultation with an attorney to fully understand the issues at play.
{ 3 comments… read them below or add one }
Your case is the polar opposite of my usual joint custody cases – they agreed to it to get the divorce done and then find out they cannot cooperate for anything.
I have joint- 50/50 custody of my 9 year old son with his father. Here’s my question…His dad signed him up to be in a fall baseball league. There is a tournament in Redding, CA during a weekend that he has him. He is unable to take him and made arrangements for him to go with another family against my wishes. Its my understanding that this is a big enough decision that it would require us to be in aggreement to let our child go out of state without a parent???? Thank you for your time- its greatly appreciated!
I have joint legal custody w/ my ex husband, he is the primary caregiver. I am behind on financial agreements and he tells me when I start paying in what I owe him then I can make some of the decisions. He moved more 60 miles away from me 3 years ago and came back after living there for 1 yr. Now he is moving out of state which is more than 60 miles from me again. There was no consalting me on the matter, just said this is what he is doing.He has been this way about everything with the kids.Plus I ws told about it him going and laying down w/ my 10 yr old daughter in a seperate area of the house and going to bed w/ her till her step mom comes and tells her it is time to go to bed. There is alot more but this the basic drift of my concerns. Please get back to me on this I would greatly appreciate it. Thank you!