It is unusual for a court to not award parenting time to the non-custodial parent in a divorce case. Oregon’s stated policy is that good parents should have frequent contact with their children. ORS 107.101 provides that it is Oregon’s policy to:

• Assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child;
• Encourage such parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage;
• Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, if necessary;
• Grant parents and courts the widest discretion in developing a parenting plan; and
• Cconsider the best interests of the child and the safety of the parties in developing a parenting plan.

A trial court can refuse to order parenting time, but in doing so, the court has to make a finding that parenting time will endanger the health or safety of the child. ORS 107.105(1)(b).

On October 29, 2008, the Oregon Court of Appeals published an opinion in Hickam and Hickam that overturned a trial court’s parenting time order. The trial court had failed to specify a parenting plan for the father. Instead, the court left parenting time decisions to a “parenting time coordinator.”  The parenting coordinator then withdrew from the case, leaving the father with no parenting plan. 

Both mother and father agreed the trial court made a mistake. The Oregon Court of Appeals called the mistake “plain error” as the court had denied the father parenting time but made no findings that parenting time would endanger the health or safety of the child.  The Oregon Court of Appeals noted that parenting time decisions potentially implicate a parent’s constitutional rights.

What does this mean to divorcing parents with children? Recognize that our courts take parenting time awards very seriously, and expect an award of parenting time unless a parent poses a danger to the health or safety of the child. Also, parenting time coordinators are growing in popularity in high conflict cases, but they can’t be in charge of coming up with a parenting plan.

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.