What Does Custody Really Mean?

If you had to define “custody” how would you define it? Interestingly, Oregon statutes do not actually define sole custody but they do define joint custody.  ORS 107.169 defines joint custody as “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.”

There are a number of common misunderstandings about legal custody:

Custody doesn’t impact child support. People sometimes think that legal custody impacts child support. It doesn’t. The parenting plan impacts child support but legal custody doesn’t.

Custody is not parenting time. People often confuse custody with parenting time. Custody literally only refers to decision making while parenting time refers to the actual parenting schedule. To illustrate this point, you can have: Sole custody with a 50/50 parenting plan; Sole custody with an every-other-weekend parenting plan; Joint custody with a 50/50 parenting plan; or Joint custody with an every-other-weekend parenting plan.  When we discuss these two concepts in mediation or Collaborative Law we usually talk in terms of “decision making” and the “parenting plan” or “parenting schedule.”

Custody doesn’t automatically allow someone to move out of state. People often think that sole custody automatically allows a parent to move far away with the children. That’s not the case. In Oregon, if there is a contested move-away situation the court looks at what is best for the child. The assumption used to be that if a parent was moving away to get a better job or to get more family support, that would be good for the parent which would then be good for the child. That assumption is no longer made. Now the assumption is that if a child has a regular relationship with both parents, it is best to ensure that those relationships continue.  Mediation is a great option for addressing move-away cases because it allows parents to focus on creating a workable arrangement for both of them  rather than taking a “win-lose” approach to the situation.

So what is custody?

In the mediation or Collaborative process we don’t usually use the word custody. Instead, we refer to it as “decision making.” The phrase “decision making” is more accurate and less inflammatory than the word custody. When we talk about decision making we typically are talking about religious upbringing, school decisions and elective medical decisions. As we see in ORS 107.169, the major decisions “include but are not limited to” these three types of decisions. Realistically, major decisions include any decisions that are coming up where you end a lot of time thinking about the decision, research different possible options, etc.

How is decision-making addressed in mediation and Collaborative Law?

In mediation we begin by asking the question, “How have you made decisions in the past?” We then ask, “How do you envision making decisions in the future?” Often times whatever people have done in the past they will continue to do in the future, although that doesn’t always have to be the case. For example, it may the case that a stay-at-home parent historically made most of the decisions but now that there will be separate households the wage-earning parent begins to take a more active role.

Regardless of the approach to decision-making, mediation and Collaborative Law provide a process for identifying and discussing interests. When we are discussing something as important as making major decisions for your children, it is important that each parent have a chance to discuss the issue from their perspective and feel heard.