Monday, January 21, 2013

Legal Custody versus Physical Custody (Parenting Time)

Many clients who come to see me for a consultation misunderstand the meaning and significance of the different forms of custody.

Legal custody refers to the legal right to make major decisions for your child(ren) - things like where they will attend school, what religion they will practice, or what type of medical care they will receive.  Oregon has two forms of legal custody:  joint custody and sole custody. 

Sole custody means that only one parent has the legal decision making authority (though most judgments will require the parent with sole legal custody to consult with the other parent before making a decision).  Joint custody means that each parent has the same legal decision making authority for these major decisions.  Courts in Oregon do not have the authority to force parents into joint custody - this arrangement can only be made through agreement of the parties. 

Parenting time, on the other hand, refers to the actual time spent with the child(ren).  This is sometimes referred to physical custody or visitation.  The day-to-day type of decisions are made by the parent who has the physical custody of their child(ren) for parenting time (unless your judgment provides otherwise). 

Both custody and parenting time arrangements are determined based upon the child's "best interests."  Because a court cannot require parents to have joint custody, the court has to review statutory factors to determine whether a child's best interests would be served by awarding one parent sole legal custody over the other, and who should be awarded what parenting time schedule. 

 The "best interest" factors the courts consider are:

(a) The emotional ties between the child and other family members;
(b) The interest of the parties in and attitude toward the child;
(c) The desirability of continuing an existing relationship;
(d) The abuse of one parent by the other;
(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Custody and parenting time cases are very fact specific.  If you are considering filing a proceeding to establish or modify custody or parenting time, you should have the assistance of an attorney.  Please contact me to schedule a consultation.  We can review the factors together and discuss the possible outcomes of your case.

Shannon L. Hall
Attorney at Law

Harris Law Group, LLC
245 East 4th Avenue
Eugene, OR 97401

161 High Street, Suite 241
Salem, OR 97301

Phone:  (541) 434-2411
Fax:  (541) 683-3149

Shannon Hall is licensed to practice law in Oregon only. 


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