Articles

Custody and Parenting time

In a sense, all parents are co-parents. Even in an intact household, child rearing tasks are apportioned between the parents, whether by explicit arrangement or by tacit assumption. Whatever the usual routine for your household is, this is your co-parenting plan. In an intact household, the plan is seldom negotiated outright (though it might be a good idea!).

When a child’s household is splitting up, it is a delicate time for all involved. Even when both parties are perfectly capable parents, the high stakes of a child custody and parenting time dispute put more stress on an already stressed family system. People say things they don’t really mean, or take actions that provoke powerful responses. It is a good idea to have a detailed consultation with an experienced family law attorney when your child’s household is going through this kind of turmoil. The stakes are high! In Oregon, custody of a child is different from parenting time with a child. Custody is about making the big decisions, while parenting time is just what it sounds like-the time a parent spends with his or her child.

Custody

In Oregon (unlike California, most notably) one does not sue for joint custody. Joint custody is the agreement between two parents to share in the decision-making about the child. These are the big decisions we’re talking about—where the child lives, where the child goes to school, where the child gets his or her religious training, and similar matters.

Joint custody is similar to the state of the parents’ legal rights to make decisions for a child in an intact household. Each parent has the same legal rights as the other parent, and each parent has all the legal rights to make decisions for that child.

If parents can’t agree to a joint custody arrangement, then either the parties agree that one parent will be the custodial parent, or the parties take steps to have the court decide. Again, it is very useful to talk to an attorney to know what steps to take in a custodial dispute.

Joint custody is not a permanent state. This makes joint custody an attractive choice for a separating family that may yet have the ability to co-operate. Either party can, at a later date, ask thecourt to revisit custody. But there are certain situations that advantage one parent or the other, so even if your family is able to co-operate and share custody, you should get an attorney’s perspective on the pitfalls of joint custody.

When a court decides, or parties agree, that one parent will have custody, it is very difficult to change that determination in the future. A court needs to see a“substantial change in circumstances” to revisit a custody determination. This is rare, and so it is an important decision.

There are three basic strategies to operating as co-parents: cooperate, capitulate, or litigate-in order of preference and cost.

Even when one parent is designated as the custodian, both parents have equal rights in many crucial areas, like the ability to see confidential records about the child and the ability to consult with the child’s doctors and teachers.

PARENTING TIME

I focus a lot of attention on the creation of a workable parenting plan for co-parents. Hallmarks of a good parenting time plan include:

• Clear expectations
• Routine
• Infrequent transitions
• Accountability
• Consideration of likely future changes

A good parenting time plan is one that accurately and understandably conveys the parties’ expectations, and gives the child a predictable routine. I am not a fan of plans that give a parent more parenting time than he or she is actually going to do, or gives one parent a great deal of control over whether the other parent gets to have parenting time at all.

There are, however, occasional situations in which one parent needs to be supervised while he or she is responsible for the child. There are a variety of ways this can be handled. When possible, I like to develop therapeutic parenting plans out of these situations, so that the supervised parent can gradually receive more parenting time and less supervision based on progress.

PARENTING TIME ENFORCEMENT

Under Oregon law, a parent’s time with his or her child is independent of his or her child support payment history. However, not everyone knows this, and it is a frequent mistake to withhold parenting time until child support is paid, or to withhold child support until parenting time is made up. Neither of these strategies is endorsed by Oregon law or the courts.

When your parenting time is being cut short, or when parenting time is not provided at all, it’s time to talk to an experienced family law attorney. Your children are only young once.

MOVING CHILD CASES

One of the reasons why divorces are so difficult is that the unknowns abound, and it is easy to feel fearful about unknowns. “What happens if…” questions are a great way to ease those fears, when you are talking with an experienced attorney.

Oregon’s legislature and courts of appeal are turning away from a long-held belief that the custodial parent should be allowed to move away with the child so long as the move is not detrimental to the child. In 2009, the Oregon Court of Appeals (in a case called Federov) said that an Oregon statute stating the policy of the state that children deserve close contact with good parents should be given its full weight when deciding whether or not to allow a child to move away with a custodial parent. In theory, moving with a child is not going to win approval from the courts.

In practice, however, results are highly uneven. If a move-away is a possible outcome in your situation, you should talk to an experienced family law attorney to understand all of the practical applications of these laws. Delay is often disadvantage, and knowing all of the information you can will help you avoid doing yourself a disservice by waiting too long, or making agreements that limit your rights.

PARENTAL KIDNAPPING

At the extreme edge of the “moving child” spectrum of cases, you have those that appear to be parental kidnapping. Even here, though, there is a continuum. While it may feel like kidnapping if a non-custodial parent in one city does not send the child home to the primary parent at the end of the summer, it is actually a straightforward enforcement situation in Oregon family law. But even when a child is removed from your care by the other parent, the legal ramifications are confusing and difficult to navigate without the advice of an experienced family law lawyer.

CHILD WELFARE / DHS / JUVENILE DEPENDENCY

While there are very few family law cases that make their way into juvenile dependency courts, the dependency system is a consideration more times than one might imagine. A parent with substance abuse issues, or a family going through difficult domestic violence, can attract the attention of Oregon’s child welfare system. Even when only one parent is a problem, the other parent needs to know how to keep the child safe, and how to make sure that, if the agency ever does come knocking on the door, the effective parent can demonstrate the ability to protect the child from the maladapted parent’s bad behavior.

DHS is not easy to deal with. It’s imperative that you talk to an attorney if the State is investigating your family. What you don’t know can be very difficult, or devastating, to your family.

I have years of experience in DHS cases throughout the Portland metropolitan area, with most of my experience coming in Washington County, widely considered to be the most difficult county in which to practice juvenile dependency law.

DOMESTIC VIOLENCE

Domestic violence devastates families. Maladaptive responses to domestic violence have a part to play in the devastation. Whether you are a victim of domestic violence, or a person accused of domestic violence, there are two key choices to make. First, make sure you are personally safe and that violence is de-escalated. Second, make sure that you have competent and compassionate legal advice.

My early training in criminal defense involved domestic violence. Like drunk driving, it is a dangerous crime that is committed with depressing frequency. Like drunk driving, there is a way to enter a diversion program to reduce the damage to your life and to your family. If you are accused of domestic violence, every statement is crucial. Seek the advice of an attorney who can help you keep things from getting out of control with the police, with the prosecution, and with your future interactions with your family. Don’t count on knowing the right way to proceed on your own, and don’t make the mistake of thinking that the problem is going to fix itself or go away because it is not.

If you are the victim of domestic violence, this is a very difficult transition. Criminal prosecution of your husband or wife, or a co-parent of your child, is a significant hindrance to the family system, even if it is necessary. You may feel tempted to change your story, to handle things in your own way. You need to talk to a lawyer who can help you make the best decisions for your own safety and the safety of your children. You also need to have help being mindful of the future. Domestic violence classes really can make a big difference in a person’s ability to manage emotionally intense interactions without resorting to violence. You need to know the “big picture,” so you need to talk to an experienced attorney. Even if you are not sure you are ready to file a divorce, seek a restraining order, or make another bold, life-changing move, you need to know all your options.

CHILD SUPPORT

The federal government requires the states to have predictable and uniform child support schemes. Oregon has reacted to this requirement by creating and updating the Oregon Child Support Guidelines. These rules, and the statutes that authorize them, are Oregon’s child support procedures, and they change fairly regularly. For instance, on January 4, 2010, the Oregon Department of Justice finished an extensive rewrite of Oregon’s support guidelines. You need the information to tell you how best to arrange your child support situation. One of the reasons why I prefer parenting plans that accurately describe the parties’ child rearing arrangements, is because a major factor in the calculation of child support is the percentage of overnights that the child spends with each parent under the court-ordered plan.

“I was pro se.”

It happens every week. A potential client comes in to see me, carrying a worn manila envelope. Inside the envelope, this person carries all the records from his or her divorce. Now, some period of time later, the person is seeking help either understanding his or her dissolution of marriage judgment, or trying to rectify it once it has gone against them. “How did you end up in this situation?” I ask. “Oh,” they say, glumly. “I couldn’t afford a lawyer. I was pro se.” Then they shake their heads, as if to say, “what was I thinking?”

From time to time, my opposing “counsel” in a divorce is a very smart person who, through internet research or frequent trips to the library, expects to be able to handle his or her own divorce, custody, or parenting time modification without the help of an attorney. That’s also a pro se litigant. A pro se litigant is a party who represents his or her legal cause by himself or herself.

I simply do not recommend this approach to family law disputes to anyone, not even to family law lawyers! The separation from the problem that comes from being represented is, in and of itself, a valuable commodity. But more to the point, there is a reason why lawyers go to school for three years to be qualified to practice law. The library or Wikipedia can’t make you into a lawyer.

If, for financial reasons, you must represent yourself, then you have my sympathy. Even then however it is wise to consult with a lawyer before you set out to learn everything you need to know to argue your own case.

ADVOCACY

You hire an attorney to advocate for you, to pursue your goals and protect your interests. It’s worthwhile to wonder what that means, to the attorney you choose.

Family law cases end in settlement more than 90% of the time. Similarly, criminal charges result in a plea to some charge in roughly 90% of cases. Does settlement mean surrender?

Settlement is simply a resolution that happens before a judge (or in criminal cases, a jury) issues a verdict or a ruling. Settlements can be good or bad, generous or… not. The difference between these scenarios is the work of your advocate.

Every lawsuit—including criminal charges—will be resolved by trial, if no agreement can be reached. This seems elementary, but it is not. If you are involved in a case that may end in a trial, you need to have an advocate who can try that case, if no settlement can be reached. Otherwise, you sacrifice negotiating power.

Andrew McLain settles a lot of cases, but one reason why, is that he always has a trial strategy in mind. Powerful negotiation requires a willingness to take the case to a judge or jury, to ask for what’s fair and just and to argue against outcomes that are not fair, not just, not lawful and not practical.

There is a flip side to advocacy, as well. You can’t run pell-mell into court, asking for unreasonable outcomes, and expect to be satisfied with the results. Mr. McLain will let you know when you are asking for something you can’t get at trial. He will help you craft reasonable expectations for your case. He will use common sense approaches to help you set yourself up to succeed.

Another thing our clients get from our service. “backbone”. When you have an advocate who is willing to fight for you, it helps you to understand that you don’t have to bend over backwards to compromise. You can hold your ground, insist on having your needs met, and break old habits that have led you to give away your own voice, your own agenda, and your own best interests.

At McLain Legal, we are always thinking about your negotiating position, paying attention to your agenda, and looking at the bigger picture. A deal today is great, but it needs to have durability, or you are going to be back in court in no time. Better to wait for a better deal, or even take a case to trial, so that you can come to a thorough resolution that protects your interests and prevents foreseeable problems that come up down the road.

And in the event that negotiation does not produce a settlement that protects your interests, you will be glad to know that you have an advocate who enjoys trying cases.