Child Custody Modification

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Child Custody Modification?

Our attorneys are ready to help with your child custody modification case.

Oregon Child Custody Modification Standards

In Oregon, child custody may be modified and changed under certain circumstances. Before custody is determined explicitly, parents have "joint custody" whereby neither party as any more decision making authority than the deteriorated; either parent may ask the court to decide which parent should have "sole custody." When requested, a judge must choose between the parents by applying legal criteria. If custody has already been determined (meaning that one party already has "sole custody"), the parent seeking to modify this must prove that there has been a "substantial change in circumstances" as to a parent's ability to care for the children and act as a parent. Further, the court must always look to the best interest of the children when changing custody.

Changing Child Custody Is Challenging

Generally, courts resist changing custody of a child once determined. This resistance is not just because they are obstinate; the law sets a high standard for making this change. Modifying custody can be hard on a child, disruptive to their schedule, and often is viewed as not in the child's best interest. As a result, compared to when custody is initially determined, there is a higher legal burden to change custody once established. Nonetheless, there are circumstances when courts certainly will modify child custody. For example, cases meeting the "substantial change in circumstance" criteria might include:

  • A custodial parent is moving to a distant location. In this case, there is a powerful presumption that effectively removing one parent from the child's life - the parent not moving - is not in the child's best interest. A change of custody might be appropriate here.
  • The custodial parent is not completing the functions of an appropriate custodial parent. Examples might include not taking sufficient care of the child's medical needs, educational needs, or caretaking needs.
  • Abuse or neglect by the custodial parent unquestionably could cause a family law judge to change custody. "Neglect" or "abuse" are critical circumstances. While it certainly might not be perfect, a parent who allows too much screen time or too much junk food does not commit abuse or neglect without more dangerous behavior.
  • A child is having difficulty thriving with the current custodial parent. In a household with conflict, unstable housing, or other circumstances may cause the child distress. The court may consider physical, psychological, or educational trouble when determining whether a change in custody is warranted.
  • A parent's job loss is not a "substantial change of circumstance," which alone would necessitate a modification of child custody. Generally, a parent's financial hardship will not be used as a sole basis to lose custody of a child. However, if the economic circumstances cause other environments that cause harm, such as exposure, homelessness, or malnutrition, this may be considered by a family law judge.

Talk to an Expert in Oregon Child Custody Modification Before Proceeding

These are only a few examples of situations that could cause a modification of child custody. Oregon custody modification cases are very complicated and have a high legal bar. An Oregon child custody modification attorney can help evaluate your case's facts and help you decide how to proceed.

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Child Custody Modification
Frequently Asked Questions (FAQ's)

What are the grounds for modifying child custody in Oregon?
In Oregon, courts may modify child custody if there is a significant change in circumstances that affects the best interests of the child. This can include changes in parents' living situations, mental health issues, substance abuse problems, or changes in the child's needs.
How do I request a modification of my current custody arrangement?
To request a modification, you must file a motion with the court that issued your original custody order. You will need to provide evidence supporting your claim for changed circumstances and explain how these changes affect your child's best interests.
Can I modify my custody order without going to court?
It is possible to modify a custody order without going to court if both parents agree on the changes and submit their new agreement to be approved by the judge. However, if either parent disagrees with the proposed modifications, you will need to go through formal modification proceedings in court.
What factors does an Oregon family law judge consider when deciding whether to grant a modification?
Oregon judges consider several factors when evaluating requests for modifications including: any major changes since previous order; stability of both households; each parent’s ability and willingness to care for their children; emotional ties between children and parents; any history of abuse or neglect; preferences of children (if they’re old enough); and any other relevant factors.
How long does it take for an Oregon court to process a request for modification?
The time it takes for an Oregon court to process your request depends on various factors such as caseloads at local courts or complexity of your case. In general though, expect several months from filing date until final decision is made by judge.
Will my ex-spouse be notified if I file for a custody modification?
Yes, when you file a motion requesting modifications, your ex-spouse will be served with copies of the filed documents and notified of upcoming court hearings. They will have an opportunity to respond and present their arguments in court.
Can I move out of state with my child while a custody modification is pending?
In Oregon, you must obtain the other parent's consent or court approval before relocating with your child more than 60 miles from their current residence. If you’re seeking relocation as part of your custody modification, wait for a final court decision before moving.
Can I get temporary orders while my custody modification request is pending?
Yes, if you need immediate changes to your custody arrangement due to emergency circumstances or significant changes affecting your child’s well-being, you can request temporary orders from the court. These orders will remain in effect until a final decision on your modification request is made.
How is child custody determined in Oregon?
Child custody decisions are based on the statutory requirements listed at ORS 107.137. These requirements include the best interests of the child, considering factors like emotional bonds with parents and siblings, abuse by one parent, stability of home environment, and each parent's ability to meet the child's needs.
What is the difference between joint and sole custody?
Joint custody refers to both parents sharing legal decision-making responsibilities for a child, while sole custody gives one parent full authority over major decisions affecting the child. These decisions are largely limited to non-emergency medical decisions, education, and religious training. Physical custody (where the child resides) can also be shared or granted solely to one parent.


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Useful Oregon Statutes For
Child Custody Modification

Ex Parte Temporary Custody Or Parenting Time Orders


ORS 107.097(2)

...

(a) A party may apply to a court for a temporary protective order of restraint by filing with the court an affidavit or a declaration under penalty of perjury in the form required by ORCP 1 E, conforming to the requirements of ORS 109.767. (b) Upon receipt of an application under this subsection, the court may issue a temporary protective order of restraint restraining and enjoining each party from:

(A) Changing the child’s usual place of residence;

(B) Interfering with the present placement and daily schedule of the child;

(C) Hiding or secreting the child from the other party;

(D) Interfering with the other party’s usual contact and parenting time with the child;

(E) Leaving the state with the child without the written permission of the other party or the permission of the court; or

(F) In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.


Read Full Text: ORS 107.097

Parenting Plan


(1) In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under ORS 107.700 (Short title) to 107.735 (Duties of State Court Administrator), there shall be developed and filed with the court a parenting plan to be included in the judgment. A parenting plan may be either general or detailed.

(2) A general parenting plan may include a general outline of how parental responsibilities and parenting time will be shared and may allow the parents to develop a more detailed agreement on an informal basis. However, a general parenting plan must set forth the minimum amount of parenting time and access a noncustodial parent is entitled to have.

(3) A detailed parenting plan may include, but need not be limited to, provisions relating to:

(a) Residential schedule;

(b) Holiday, birthday and vacation planning;

(c) Weekends, including holidays, and school in-service days preceding or following weekends;

(d) Decision-making and responsibility;

(e) Information sharing and access;

(f) Relocation of parents;

(g) Telephone access;

(h) Transportation; and

(i) Methods for resolving disputes.


Read Full Text: ORS 107.102

Provisions Of Judgment


ORS 107.105 is a huge statute that provides detailed provisions governing not only the provisions of a divorce or separation judgment but also provisions regarding attorney fees. Rather than quote select parts, the statute may be reviewed in its entirety at the link below.


Read Full Text: ORS 107.105

Vacation Or Modification Of Judgment


(1) The court may at any time after a judgment of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by ORCP 7, and after notice to the Division of Child Support when required under subsection (9) of this section:

(a) Set aside, alter or modify any portion of the judgment that provides for the appointment and duties of trustees, for the custody, parenting time, visitation, support and welfare of the minor children and the children attending school, as defined in ORS 107.108 (Support or maintenance for child attending school), including any health or life insurance provisions, for the support of a party or for life insurance under ORS 107.820 (Support order as insurable interest) or 107.830 (Physical examination may be ordered);

(b) Make an order, after service of notice to the other party, providing for the future custody, support and welfare of minor children residing in the state, who, at the time the judgment was given, were not residents of the state, or were unknown to the court or were erroneously omitted from the judgment;

(c) Terminate a duty of support toward any minor child who has become self-supporting, emancipated or married;

(d) After service of notice on the child in the manner provided by law for service of a summons, suspend future support for any child who has ceased to be a child attending school as defined in ORS 107.108 (Support or maintenance for child attending school); and

(e) Set aside, alter or modify any portion of the judgment that provides for a property award based on the enhanced earning capacity of a party that was awarded before October 23, 1999. A property award may be set aside, altered or modified under this paragraph.

...


Read Full Text: ORS 107.135

Factors Considered In Determining Custody Of Child


(1) Except as provided in subsection (6) of this section, in determining custody of a minor child under ORS 107.105 (Provisions of judgment) or 107.135 (Vacation or modification of judgment), the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors:

(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. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.

...


Read Full Text: ORS 107.137

Proceeding To Determine Custody Or Support Of Child


(1) If a child is born to an unmarried person and parentage has been established under ORS 109.065 (Establishing parentage), or if a child is born to a married person by a person other than the birth mother’s spouse and parentage between the person and the child has been established under ORS 109.065 (Establishing parentage), either parent may initiate a civil proceeding to determine the custody or support of, or parenting time with, the child. The proceeding shall be brought in the circuit court of the county in which the child resides or is found or in the circuit court of the county in which either parent resides. The parents have the same rights and responsibilities regarding the custody and support of, and parenting time with, their child that married or divorced parents would have, and the provisions of ORS 107.094 (Forms for restraining order and request for hearing) to 107.449 (Transfer of proceeding under ORS 107.135 to auxiliary court) that relate to custody, support and parenting time, the provisions of ORS 107.755 (Court-ordered mediation) to 107.795 (Availability of other remedies) that relate to mediation procedures, and the provisions of ORS 107.810 (Policy), 107.820 (Support order as insurable interest) and 107.830 (Physical examination may be ordered) that relate to life insurance, apply to the proceeding.

...


Read Full Text: ORS 109.103

Rights Of Person Who Establishes Emotional Ties


(1) Except as otherwise provided in subsection (9) of this section, any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief under subsection (3) of this section.

(2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.

(b) In an order granting relief under this section, the court shall include findings of fact supporting the rebuttal of the presumption described in paragraph (a) of this subsection.

(c) The presumption described in paragraph (a) of this subsection does not apply in a proceeding to modify an order granting relief under this section.

(3)(a) If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order.

(b) If the court determines that an ongoing personal relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by clear and convincing evidence, the court shall grant visitation or contact rights to the person having the ongoing personal relationship, if to do so is in the best interest of the child. The court may order temporary visitation or contact rights under this paragraph pending a final order.

(4)(a) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

(A) The petitioner or intervenor is or recently has been the child’s primary caretaker;

(B) Circumstances detrimental to the child exist if relief is denied;

(C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;

(D) Granting relief would not substantially interfere with the custodial relationship; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

(b) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

(A) The legal parent is unwilling or unable to care adequately for the child;

(B) The petitioner or intervenor is or recently has been the child’s primary caretaker;

(C) Circumstances detrimental to the child exist if relief is denied;

(D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

...


Read Full Text: ORS 109.119

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Pacific Family Law Firm is focused on one area of law: family law. From divorces to child support to spousal support to custody modifications, we're ready to help. Whether your your case has been open for years and is having a judgment modified, or if you have never had an attorney before and are just figuring out how to proceed with a divorce or other family change, we will take care of you.

Oregon Family Law & Divorce Blog

At Pacific Family Law Firm in Oregon, staying current on the latest developments in Oregon divorce and family law topics is a top priority. Our firm maintains a policy of "information first" for the client, so we make every effort to share information with the public and clients. Our blog covers topics from the frequently asked questions (FAQs) that Oregon family law Attorneys encounter to news headlines that impact Oregon families. If there is a topic you would like to see covered, let us know, and we'll add it to our list of subject matter!

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