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# 69 - Joint custody (as applied under Oregon law)

LDG Monograph # 69                                        October, 2007-- ver. 1.4

“JOINT CUSTODY” (as applied under Oregon law)

by Lawrence D. Gorin, Attorney at Law, Portland, Oregon

    Incidental to the rendering of a judgment dissolving a marriage, ORS 107.105(1)(a) authorizes the court to make provision in the judgment “For the future care and custody, by one party or jointly, of all minor children of the parties * * *.”

    And ORS 107.169(1) says that “An order providing for joint custody may specify one home as the primary residence of the child * * * .

    But nowhere in the Oregon statutes is there any authority for bifurcating “joint custody” into separate subclassifications of legal custody and physical custody.  And the fact that family law lawyers and their clients do this all the time (usually without giving it much thought) does not make it right, nor legal.  

    Further, when the court in a joint custody situation specifies one home as the child’s “primary” residence, it results, at most, in the other home being the “secondary” residence.  But that does not mean that custody, as a matter of law, is being subdivided or bifurcated, nor does it mean that that parent whose home is designated as the child’s primary residence is being granted “physical custody.”

    In essence, the court’s statutory authority under ORS 107.105(1)(a) is limited to simply granting custody (without further bifurcation) to one parent, or to the other parent, or jointly to both parents.  Those are the only available options.  Nothing more.

    Bottom line:  Notwithstanding the popular use of dissolution judgment language by lawyers, judges, self-represented litigants, etc., that purports to grant “joint legal custody with physical custody to mother [or father],” Oregon law makes no provision for such an arrangement, nor is there any authority for the use of such language.

Historical context
    A review of the history and evolution of “joint custody” in Oregon shows that ORS 107.105(1)(a) was amended in the mid-1970s so as to permit divorce court judges to grant custody of minor children “to one party or jointly.”  (The previous law provided for custody to be awarded to one party or the other but said nothing about “joint custody.)  But when the legislature added the phrase “or jointly” to ORS 107.105(1)(a), the legislature said nothing as to what it had it mind and provided no guidance as how and under what circumstances joint custody could or should be ordered, modified or terminated.  It thus fell to the judicial branch of government, initially, to give it some meaning.  

    During the late 1970s and early 1980s, the Court of Appeals undertook the task of construing the statute, doing so through a series of decisions that provided shape, form and context for “joint custody.”  

    The first such case was Bohn and Bohn, 43 Or App 561, 603 P2d 781 (1979), modified 288 Or 697, 607 P2d 1375 (1980), which involved a stipulated dissolution judgment that provided for joint custody of the parties’ four year old son, with an alternating year to year change of physical custody.  The parent not having physical custody was to have reasonable visitation rights.  Disputes subsequently developed, resulting in further litigation and an appeal to the Court of Appeals.  The Court of Appeals concluded that the “joint custody” arrangement should be modified, given that “the harm in maintaining the status quo is greater than that attendant upon a change of custody.”  In a concurring opinion, Judge Joseph offered his wise assessment:
    “The majority has chosen to accept the characterization of the custody arrangement involved as “joint custody” for the purposes of the decision, but I would not do that. Whatever may turn out to be the eventual meaning of that term, which is now coming into vogue, I would not dignify the arrangement in this case in any way that might misleadingly suggest that this court is prepared to accept it in any case as in “the best interests of the child.”  My head, my heart and my instincts say it would always be in the worst interests of any child.”  43 Or App at 565.

    Bohn was followed by Handy and Handy, 44 Or App 225, 602 P2d 738 (1980), in which the court (Judge Joseph), after noting that ORS 107.105(1)(a) “does not seem to recognize a distinction between ‘joint legal custody’ and ‘physical custody’ in its terminology authorizing a court to decree “future care and custody * * * by one party or jointly,” went on to say:
    “We need not decide now whether a court may ever compel joint custody, although it is very difficult to imagine circumstances where it would be appropriate without the desire or consent of both parties.  Furthermore, we do not comprehend the concept of separating ‘joint legal custody’ from ‘physical custody.’ ”  44 Or App at 229-230.  (Emphasis supplied.)

    Then came Murray and Musto, 47 Or App 245, 614 P2d 132, rev den 290 Or 1 (1980), a divorce proceeding in which the trial court ordered that the parties’ three-year-old child live with each parent on an alternating four month basis until the child starts school, at which time mother would have physical custody of the child during the school year, with father having physical custody during spring vacation and summer vacation periods.  Neither party sought such an arrangement.  The Court of Appeals modified arrangement so as to grant full custody to mother, with father having physical custody during the Christmas season and for eight weeks each summer.  The appellate court (opinion by Judge Joseph) made the following observations:
    “Although it is by no means clear what the legislature intended when it amended ORS 107.105(1) to permit courts to provide for custody “by one party or jointly,” we have previously pointed out that unless both parties desire and consent to it, joint custody is not likely to be successful [citing  Handy and Handy]. * * * To exercise discretion to decree “joint custody” of the three year old in that circumstance was quite unrealistic, for there was little or no likelihood of the parties’ exercising the sort of simultaneous and continual sharing of rights and responsibilities implied by the term.”

    The next case was Heinel and Kessel, 55 Or App 275, 637 P2d 1313 (1981).  The parties’ dissolution judgment provided for joint custody of the parties’ four-year-old son.  Disagreements arose regarding which school the child should attend.  The child attended kindergarten and began first grade at the public school nearest mother’s home. However, one month into the school year in the first grade, father removed him from his classroom (in the view of the other students) and transferred him to another public school.  The Court of Appeals found that even though there had been no change of circumstances with respect to the capacity of either parent properly to take care of the child, the parties have ceased to communicate and cooperate.   In an opinion (Judge Joseph), the court said:
    “Whatever else the term “joint custody” means, it at least implies that the parties to a joint custody decree exercise ‘simultaneous and continual sharing of rights and responsibilities.’   Communication and cooperation between the parents is essential to a joint custody arrangement.  The animosity resulting from the school transfer in the present case is a substantial change of circumstances since the original decree, because the original, cooperative arrangement has broken down and one parent has resorted to unilateral self-help.
    “* *  *
    “Although we do not hold as a matter of law that the daily shifting of a child from one parent to the other cannot be in the best interests of the child, where, as here, the parties to such an arrangement have ceased to communicate and have begun to suspect one another of improperly caring for the child, an award of full custody to one of the parents will best promote the child’s welfare.

    The guiding hand of Judge Joseph appeared once again in Gatti and Gatti, 73 Or  App 581, 699 P2d 1151 (1985), in which the court said:
    “‘Joint custody’ has not been awarded when the effect of a decree actually awards custody to one parent and provides, for example, extensive visitation rights to the other, as in this instance. The modified decree purports to continue joint custody with wife’s home as the primary residence, but it does not reflect that the parties can or will share equal responsibility and authority in the lives of the children or make mutual decisions regarding the children’s welfare without the continual intervention of the courts.  The decree contains more than six pages of detailed arrangements for holidays, birthdays, hours of pickup and delivery and telephone visitation.  The parties are restrained from making derogatory comments about each other and are ordered to “cooperate” in regard to religious upbringing, counseling and schools.  Child support payments from husband are significantly increased. Neither party wants joint custody to continue, and we cannot compel what they will not do in the circumstances.”  73 Or App at 584.

    In Wittke and Wittke, 85 Or App 623, 628, 738 P2d 206, rev den 304 Or. 279 (1987), father appealed from a trial court decision that continued joint custody but ordered that the parties’ child be in mother’s physical custody in Oregon during the school year and with father in Utah each summer.  Said the court:
    “Continuing joint custody in this case ignores the intensity of this litigation and mother’s arguments about father’s insensitivity and irresponsibility in moving to Utah.  The “theory” of joint custody is unassailable.  In this case, however, the reality is that the parties are not presently in a mood to set aside their differences and base their decisions solely on the best interests of their child.  The possibility for on-going cooperation that is the essence of joint custody no longer exists here.  In view of father’s move to Utah and the resulting conflict between the parties, it is improbable that they can or will effectively share equal responsibility and authority in their child’s life or easily make mutual decisions regarding his welfare without the continued intervention of the courts.  Therefore, without deciding whether the parties’ custody arrangement ever was joint custody in fact, on de novo review we terminate joint custody.”  85 Or App at 627-628.  (Emphasis supplied.)

    Thus, by 1987, a collective review of the relevant case law decisions gave rise to the following principles and concepts:  
    First:  The essence and essential element of “joint custody” is parental sharing of decision-making authority regarding the child (regardless of which parent it is with whom the child is residing at any given time, nor for how long).  Further, an equal sharing of the child’s time between the parents does not amount to joint custody because, again, the concept of joint custody pertains to the sharing of rights and responsibilities, not with the allocation of time or with the physical placement of the child.

    Second:  Since joint custody means that the parents will share in decision-making authority (“rights and responsibilities”) regarding the child, the arrangement, if it is going to be successful, necessarily requires the on-going cooperation, willingness and ability of both parents to work together as “parents,” notwithstanding the dissolution of the marriage and the demise of an otherwise intact family unit.  

    Third:  Because joint custody necessarily requires the on-going cooperation, willingness and ability of both parents to work together, judges should not order joint custody unless both parents agree and request that it be ordered.

    Fourth:  If joint custody was originally ordered (because both parties were in agreement and so requested), the arrangement should be terminated at such future time if and when either parent, or both, are no longer able or willing to have it continue.  (And upon termination of the arrangement, the court would then have to make a “sole custody” decision.)

The Legislature speaks
    With the foregoing principles in mind, the legislature then enacted Or Laws 1987, ch 795 § 6, now codified as ORS 107.169.  In its present form, ORS 107.169 says:
    (1)  As used in this chapter, “joint custody” means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care and religious training. An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.
    (2)  The existence of an order of joint custody shall not, by itself, determine the responsibility of each parent to provide for the support of the child.
    (3)  The court shall not order joint custody, unless both parents agree to the terms and conditions of the order.
    (4)  When parents have agreed to joint custody in an order or a judgment, the court may not overrule that agreement by ordering sole custody to one parent.
    (5)  Modification of a joint custody order shall require showing of changed circumstances and a showing that the modification is in the best interests of the child such as would support modification of a sole custody order. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order.
    (6)(a)  The inability of a parent to comply with the terms and conditions of a joint custody order due to the parent’s temporary absence does not constitute a change of circumstances if the parent’s temporary absence is caused by the parent being:
     (A) Called into active state duty as defined in ORS 398.002; or
     (B) Called into active federal service under Title 10 of the United States Code as a member of the Oregon National Guard.
(b) As used in this subsection, “temporary absence” means a period not exceeding 30 consecutive months.

It means what it says, but what does it really say?
    Parsing the statute, ORS 107.169(1) says that joint custody is “an arrangement” (whatever that means) whereby the parents “share” in the “rights and responsibilities” (which are not defined in the statute) for “major” decisions concerning the child (as distinguished from “minor” decisions, but with no legislative guidance as to how to distinguish one from the other) including, but (as lawyers always feel compelled to add) “not limited to,” the child’s “residence, education, health care and religious training.”   

    All of this can be accomplished with the child residing exclusively with one parent and having little or no contact with the other parent.  In other words, where the child lives, and with which parent the child lives, and how much or how little time the child spends with the other parent, has nothing to do with “joint custody” as that concept is known and defined under Oregon law.

    Nonetheless, most Oregon litigants, and their lawyers, when agreeing to “joint custody” pay little heed to and rarely mention any details as to parental communications and the cooperative decision making process that is the fundamental essence of joint custody under Oregon law.  In these situations --- which are very frequent --- “joint custody” is far more symbolic rather than substantive

Putting it all together
    Joint custody --- at least under Oregon’s law --- is a concept that is separate from the issue of parenting time allocation and separate from which parent it is with whom the child lives.  Rather, it pertains to the sharing of decision making authority, rights and responsibilities.  Preeminent domestic relations attorney Paul Saucy (Salem, Oregon) has suggested that the arrangement be set forth with language such as the following:
       Joint Custody.  Husband and Wife shall have joint legal custody of Wendy, Jonathan, and Michael as said term is defined in ORS 107.169 and shall retain full parental rights and responsibilities as to joint decision-making with respect to the children, subject to the following terms and conditions:
      Husband and Wife have stipulated to the entry of a joint custody order in an attempt to establish a parental structure and process that will contribute to Wendy, Jonathan, and Michael becoming secure, self-reliant adults who are able to function on their own resources to the greatest extent possible in a complex world.
      Husband and Wife shall put aside their personal differences as much as possible and work jointly to meet this goal on a daily, weekly, and yearly basis. This includes a commitment to maximizing consistency and to minimizing conflicts in standards, expectations, and responsibilities in both households.
      Each parent shall communicate regularly with the other as they work together to reinforce positive behaviors, extinguish negative behaviors, and allow Wendy, Jonathan, and Michael increasing responsibility and independence as they grow and develop.
      Dispute Resolution.  Husband and Wife shall seek appropriate, competent assistance if they cannot by themselves resolve a conflict involving Wendy, Jonathan, and Michael.  The matter shall be referred for mediation to a counselor or professional person skilled in the area of resolution of the problems of children and their families unless an emergency exists.  It may be appropriate for a party to initiate a modification proceeding so as to benefit from court approved and sponsored mediation services.

    Note that the foregoing language makes no reference to parenting time.  This is so because, when used in its proper form as intended by the statute, joint custody is not necessarily tied or entwined with the arrangement as to the allocation of parenting time.  

    In sum, when parents who no longer reside together (be they divorced and never-married) voluntarily communicate and cooperate with one another in parental decision-making with respect to their children, both parents having a desire and willingness to do so, “joint custody” is feasible, workable, and most likely in the best interest of their children.  And it will occur, as it often does, without any judicial mandate, being often referred to as “de facto” joint custody.

    However, it would be nonsense for a judge --- or a legislature --- to blindly presume that mandating joint custody over the objection of either parent would result in joint custody actually occurring.  If joint custody is to have any substantive significance, and be in the best interests of the child, it necessarily requires the willingness of both parents and is dependent on their ability and desire to communicate and cooperate with one another.   The best evidience that clearly and convincingly establishes that joint custody will not work, and should not be ordered, is the declaration of a parent who says “I disagree and do not want joint custody.”  As is the case under present law, nothing more is needed.

    Nonetheless, under existing Oregon law, agreements for joint custody will continue to be made, often occurring as part of an effort to compromise a case and avoid contested litigation.  All participants, including the judge, know that the resulting court order for joint custody will be more form than substance.  It becomes what lawyers often refer to as a “feel good” clause.  It really makes no substantive difference, causes no harm, and just makes everybody feel a lot better.  And to the end and for that purpose, the existing Oregon statute, ORS 107.169, provides a useful option, so long as it remains in its present form, without legislative overhaul (or even legislative tinkering).



Attorney at Law
521 S.W. Clay St., Suite 205
Portland, Oregon  97201
Phone:  503-224-8884
Fax:    503-226-1321