If you are a parent going through a divorce, the custody of children involved will be a major concern. Under Oregon and Washington state child custody laws, “custody” is defined as a parent’s right to make major decisions related to a child’s upbringing. Typically, a custodial parent will have the right to make decisions for a child related to major medical care, education, religious training, and important social activities.

Custody may be joint (meaning the parents agree to cooperate regarding these important decisions) or sole (meaning only one parent will have custodial authority over major decisions). Washington and Oregon child custody laws only give courts authority to order joint custody if both parents agree to it. If the parents cannot agree to joint custody, the court must grant one parent sole custody. When determining custody, the court will make its judgment based on the children’s best interest after considering a number of factors. For example, two factors the court may consider are which parent has historically made major decisions for the child and which parent, in the court’s view, is most capable of making major decisions in the child’s best interest in the future. Courts will often require parents to attend a parenting class or mediation before hearing the issue of custody at trial.

In some cases, a joint custody arrangement is the ideal solution following a divorce. If parents constructively communicate and remain amicable, sharing custody will allow them to cooperatively make major decisions for their children after their divorce is final. These situations work best when there is a history of cooperation, and the children aren’t involved in the parents’ interpersonal conflicts.

If the parents do not agree or joint custody isn’t feasible, one parent will get sole custody of the children.

A common misconception is that custody impacts parenting time, child support, and even taxes. It does not. A parent who has sole custody will have sole authority over major decisions such as those described above; however, custody does not, for example, give that parent the automatic right to move a far distance away with the child or restrict the other parent’s parenting time with the child. In fact, even if you are not granted sole custody, the law still provides you certain rights. These are basic parental custody rights. A mother’s custody rights are the same as a father’s custody rights, whether or not they are the custodial parent. Unless the court says otherwise, both parents continue to have the authority to:

  • Inspect and receive school records and consult with school staff concerning the child’s welfare and education.
  • Inspect and receive governmental agency and law enforcement records concerning the child.
  • Consult with any person who may provide care or treatment for the child and inspect and receive the child’s medical, dental, and psychological records.
  • Authorize emergency medical, dental, psychological, psychiatric, or other health care for the child if the custodial parent is, for practical purposes, unavailable.
  • Be the child’s conservator, legal guardian, or both.

The non-custodial parent should take the time to stay informed about their children’s lives. A parent can be just as involved with their children’s education, medical treatment, and general well being, even without legal custody.

If you are going through a divorce and children are involved, it is important know your rights and seek the child custody help you need from an experienced attorney.

Related FAQs

What types of custody arrangements are possible?

The court will award custody to the mother or father. Only if both parents agree will the court order joint custody. Joint parenting time does not necessarily mean a 50/50 split of time with the children. Both parents will cooperate in making decisions regarding the children’s residence, religion, schooling, medical/dental care, etc. A parent who does not have “physical” custody of a child is entitled to reasonable parenting time (visitation) with the child as well as other rights, including access to the child’s medical and educational records.

What if my spouse and I can't agree on the custody of our children?

If the parents are unable to agree to joint custody and on which parent should have sole custody, the Court will make a custody award as part of the divorce. The Court’s decision will be based upon the “best interests” of the child. This process may involve mediation or a custody and parenting time evaluation.

If I have sole legal custody can I move out of state with my children?
In Oregon, the Court may include a provision in the custody/parenting time order requiring that neither parent move more than sixty miles without giving reasonable notice to the other parent and to the Court. However, the court or your spouse may agree that you can move. The fact that one parent has sole custody does not give that parent an automatic right to move the child out of state. 

In Washington, the primary parent may give notice of his/her intention to relocate, and unless the non-moving parent can show the move would be of serious detriment to the child, the move will be permitted. In other words, in Washington the presumption is that the primary parent’s decision to relocate will be in the best interests of child, and so relocations are often granted over the non-moving parents objections. 

Who will get custody of the children?

In a dissolution of marriage proceeding involving children, the main concern of a judge is the best interests and welfare of the children. The property rights and the welfare of adults involved are secondary. Oregon law does not discriminate between mothers and fathers when determining custody.