Paths to Joint Custody: How Oregon Compares
In the United States, various jurisdictions have markedly different approaches to determining if and how joint custody should be ordered. This post describes a few examples of joint custody standards (including Oregon’s), and evaluates the strengths and limitations of each law.
What is joint custody?
Although exact definitions vary by state, Oregon shares the widely held view that joint legal custody is the sharing of “rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care, and religious training.” (Oregon Revised Statutes 107.169). Custody is not to be confused with parenting time, which refers to the amount of time that a child spends with each parent. In a joint custody arrangement, parents share decision-making responsibilities for their child. When a court orders that only one parent has authority to make these decisions, it’s called sole custody. Importantly, an award of sole custody to one parent does not preclude the other parent from making day-to-day parenting decisions on behalf of their child; an award of sole custody pertains specifically to decisions related to education, healthcare, and religious training.
How do states determine joint custody? Comparing Oregon, California, Kentucky, and Mississippi.
As mentioned above, the ways that joint custody can be established in court often vary across states. Oregon’s system is unique because courts cannot order joint custody unless both parents agree to it. (Oregon Revised Statutes 107.169). Oregon’s rationale behind this is that joint custody depends on cooperation and collaboration. If parents cannot agree to share custody initially, they are unlikely to agree on major decisions down the line (such as their child’s religious training or healthcare) that are the subject of joint legal custody. Disagreement about such issues may lead to conflict, hostility, and even relitigation, all of which may harm the child’s well-being. Accordingly, the Oregon Legislature reasons that requiring a mutual consensus between parents helps to both protect children and victims of abuse against a high-conflict joint custody arrangement. On the other hand, critics argue that Oregon’s policy offers the parents too much veto power.
Other jurisdictions take a different approach. In California, the legislature has no preference for or against joint legal custody; rather, it aims to give family law courts and families the “widest discretion” to choose an appropriate parenting plan that is in the best interests of the child. (California Family Code 3040(e)). In theory, this includes discretion to order joint custody for parents who do not agree to the arrangement.
Kentucky goes a step further than California and establishes a presumption that joint custody is in the best interests of the child (Kentucky Revised Statutes 403.270). The Kentucky legislature shifts the burden to the parent opposing joint custody to prove that, more likely than not, shared custody is not in the best interest of the child. This is nearly the complete opposite of the Oregon system.
Mississippi lawmakers recently approved a law mirroring Kentucky’s, establishing that joint custody is presumed to be in a child’s best interests, but can be rebutted by a preponderance of evidence. Supporters of Kentucky and Mississippi’s models reason that shared custody presumptions make the system fairer for fathers. On the other hand, opponents contend that these models may, for example, force victims of domestic violence to have sustained contact with their abusers. Otherwise, critics highlight that continued contact between divorcing parents may exacerbate and prolong familial conflict that will cause harm to the child.
What are the advantages of each state’s model?
No law comes without its trade-offs, and one model may not lead to the best outcome for every family. Nonetheless, comparing these jurisdictions’ approaches helps explain the principles undergirding each. The question comes down to whether it is right to compel parents to work together, or if allowing them to pursue sole custody, if either party wants that, is better for both the child and parents.
For victims of domestic violence, Oregon provides more protection. If one party does not wish to continue contact with their abuser through a joint custody arrangement, they aren’t obligated to do so. While Kentucky law does make an exception to its shared custodial presumption when one parent has a history of violence, what constitutes a “history of violence” is still up to the Court’s interpretation. In some cases, domestic violence orders haven’t been enough to remove joint custody presumptions, leaving some parents to share custody with their abusers. And even if the shared parenting presumption has been removed due to abuse, the violent parent can still rebut by arguing that the child’s best interests are served by awarding custody to them.
Oregon’s mutual agreement requirement also encourages negotiation in joint custody cases. Because joint custody cannot be obtained without shared consensus, a parent who wants joint custody is more likely to compromise and make concessions to find a mutually acceptable arrangement. By contrast, a parent in Mississippi or Kentucky who believes that the shared parenting presumption is likely to result in a joint arrangement regardless, may avoid compromise during negotiations.
Ultimately, Oregon shares the belief of many courts that joint custody should be reserved for parents who have shown they are capable and willing to work together in the interests of their child. If joint custody is something you think may be attainable in your case, Lee Ohlmann Law is happy to help advocate for that position through compromise and negotiation with opposing parties or counsel.
