Oregon Custody and Visitation Law
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Oregon courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
Oregon law states: “In determining custody of a minor child, … the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors: (a) The emotional ties between the child and other family members; (b) The interest of the parties in and attitude toward the child; (c) The desirability of continuing an existing relationship; (d) The abuse of one parent by the other; (e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and (f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.
“The best interests and welfare of the child in a custody matter shall not be determined by isolating any … relevant factor, and relying on it to the exclusion of other factors. However, if a parent has committed abuse, … there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse.
“In determining custody of a minor child, … the court shall consider the conduct, marital status, income, social environment or lifestyle of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the child. …
“Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment: (a) For the future care and custody, by one party or jointly, of all minor children of the parties born, adopted or conceived during the marriage, and for minor children born to the parties prior to the marriage, as the court may deem just and proper. … The court may hold a hearing to decide the custody issue prior to any other issues. When appropriate, the court shall recognize the value of close contact with both parents and encourage joint parental custody and joint responsibility for the welfare of the children. … The court may deny parenting time to the non-custodial parent under this subsection only if the court finds that parenting time would endanger the health or safety of the child. The court shall recognize the value of close contact with both parents and encourage, when practicable, joint responsibility for the welfare of such children and extensive contact between the minor children of the divided marriage and the parties.”
In a 2002 case, In re Marriage of Collins, the Oregon Court of Appeals reversed a trial court’s modification of custody in favor of a heterosexual father, because it found the trial court relied too heavily on the non-exhibitionist display of intimacy (kissing in bed) between the child’s mother and her same-sex partner. The court ruled that the sexual orientation of the mother could not be a significant factor in determining custody.
In a 1979 case, In re Marriage of Ashling, the Oregon Court of Appeals held that a visitation agreement that restricted the mother’s visitation to “times and places that petitioner does not have with her, in her home, or around the children, any lesbians,” was not justified. The court reasoned that as long as the mother’s sexual life remained discreet, regardless of her sexual orientation, there was no reason to restrict visitation.
In a 1973 case, A. v. A., the mother petitioned to have custody of the two children that had been given to the gay father. The Court of Appeals agreed with the trial court that there was no evidence that the children were exposed to deviant sexual acts or that the welfare of the children was being adversely affected in any substantial way and therefore it was inappropriate to modify custody.
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
Although there are no published cases dealing with same-sex co-parents, Oregon state law allows for a person not legally or biologically related to petition for visitation.
The law says: “Except as otherwise provided, … any person, including but not limited to a related or non-related foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief. … (2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child. …
“If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order.
“If the court determines that an ongoing personal relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by clear and convincing evidence, the court shall grant visitation or contact rights to the person having the ongoing personal relationship, if to do so is in the best interest of the child. The court may order temporary visitation or contact rights under this paragraph pending a final order.
“In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence: (A) The petitioner or intervenor is or recently has been the child’s primary caretaker; (B) Circumstances detrimental to the child exist if relief is denied; (C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; (D) Granting relief would not substantially interfere with the custodial relationship; or (E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.
“In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence: (A) The legal parent is unwilling or unable to care adequately for the child; (B) The petitioner or intervenor is or recently has been the child’s primary caretaker; (C) Circumstances detrimental to the child exist if relief is denied; (D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or (E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor. …
“As used in this section: ‘Child-parent relationship’ means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the non-related foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months. … ‘Ongoing personal relationship’ means a relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.”
Citations: OR. REV. STAT. §107.137; OR. REV. STAT § 107/105; In re Marriage of Collins, 51 P.3d 691 (Or. Ct. App. 2002); In re Marriage of Ashling, 599 P.2d 475 (Or. Ct. App. 1979); A. v. A., 514 P.2d 358 (Or. Ct. App. 1973); OR. REV. STAT. § 109.119.
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 10/13/2004