Causing Minor Difficulties for the Other Parent Ruled not Enough for a Custody Ruling

In Oregon, one of the factors to be considered in deciding custody disputes is each parent’s willingness to foster the children’s relationship with the other parent (assuming that parent is not unfit). A recent case considers the question of how much a parent should subordinate their own interests to ensure the other parent’s relationship is supported. The answer is that if a parent’s decisions cause minor difficulties for the other parent, the courts should not penalize the parent.

The questions arose in a divorce with two children. Both parents developed new relationships after they separated. The father moved in with his girlfriend about 20 miles south of the family home. The mother did not move in with her unemployed boyfriend, but did become pregnant. The father stopped paying the mortgage, and developed a pattern of coming to the family home and letting himself in without knocking. The mother then chose to move in with a roommate about 15 miles north, which reduced her commute to college and the distance to her boyfriend’s home. The father moved into the family home with his girlfriend.

Oregon law sets out six factors to consider in making a child custody decision. In this case, the trial judge focused on willingness to foster the children’s relationship with the other parent, primarily basing her ruling on the move, the decision of the mother to complete her education, and the fact that the mother was having another child. The judge also noted that the move made it more difficult to spend time with the children. Based on those findings, the judge gave custody to the father.

The Court of Appeals reversed and awarded custody to the mother, based on her history as the primary caregiver. First, it disapproved of the trial judge’s reference to the mother’s lifestyle because there was no evidence her lifestyle was likely to harm the children physically or emotionally. Oregon law requires the court to find that potential for harm before lifestyle can be considered, and a lifestyle decision that complicates matters for the other parent is not enough.

Without the lifestyle findings, the only finding by the trial judge that could be considered was that the mother’s move and resulting transfer of the children to a new school made it more difficult for the father to see the children. The Court of Appeals explained that that was not what willingness to foster a relationship is about. Instead, the issue is whether the parents act in a way that encourages or hampers the other parent’s relationship. Simply moving a reasonable distance away is not enough to show interference; parents have to develop their own ability to support themselves and the family. The Court of Appeals wanted to see a severe hampering of the father’s relationship or an intent by the mother to interfere.

If your case involves a lifestyle decision by the other parent that causes you concern, you should be prepared to discuss how it harms the children. Similarly, if the other parent is questioning your lifestyle, you should gather evidence to show that the children are not affected. If one of the parents in your case is making decisions that might affect the other parent’s relationship with the children, both parents should be prepared to discuss how much difficulty is caused as a result and whether the decision is intended to cause trouble. In general, you may be well served by collecting your evidence and asking a lawyer for an opinion so that you know whether a judge is likely to consider the situation significant enough for it to be a factor in a custody dispute. Remember, in most cases, the parents will have to continue to deal with each other while the children grow up.

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