ORS 107.137¹
Factors considered in determining custody of child

(1) Except as provided in subsection (6) of this section, in determining custody of a minor child under ORS 107.105 (Provisions of judgment) or 107.135 (Vacation or modification of judgment), 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.

(2) The best interests and welfare of the child in a custody matter shall not be determined by isolating any one of the relevant factors referred to in subsection (1) of this section, or any other relevant factor, and relying on it to the exclusion of other factors. However, if a parent has committed abuse as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735), other than as described in subsection (6) of this section, 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.

(3) If a party has a disability as defined by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), the court may not consider that party’s disability in determining custody unless the court finds that behaviors or limitations of the party that are related to the party’s disability are endangering or will likely endanger the health, safety or welfare of the child.

(4) In determining custody of a minor child under ORS 107.105 (Provisions of judgment) or 107.135 (Vacation or modification of judgment), 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.

(5) No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father.

(6)(a) The court determining custody of a minor child under ORS 107.105 (Provisions of judgment) or 107.135 (Vacation or modification of judgment) shall not award sole or joint custody of the child to a parent if:

(A) The court finds that the parent has been convicted of rape under ORS 163.365 (Rape in the second degree) or 163.375 (Rape in the first degree) or other comparable law of another jurisdiction; and

(B) The rape resulted in the conception of the child.

(b) A denial of custody under this subsection does not relieve the parent of any obligation to pay child support. [1975 c.722 §2; 1987 c.795 §14; 1997 c.707 §35; 1999 c.762 §2; 2011 c.438 §3; 2013 c.72 §1]

Notes of Decisions

Specific acts of custodial parent misfeasance justifying custody change must be of sufficient number and nature to es­tab­lish course of con­duct or pattern of inadequate care having adverse effects. Niedert and Niedert, 28 Or App 309, 559 P2d 515 (1977), Sup Ct review denied

Where erroneous order transferring custody was not stayed, parent right to ap­peal order outweighs instability caused by retransfer of custody if ap­peal succeeds. Niedert and Niedert, 28 Or App 309, 559 P2d 515 (1977), Sup Ct review denied

Where court takes unusual ac­tion of awarding temporary custody at time of dissolu­tion decree, standard at time of awarding permanent custody is best interest of child, not change of circumstances. Deffenbaugh and Deffenbaugh, 286 Or 759, 596 P2d 966 (1979)

Prohibi­tion on giving preference to mother over father does not prevent considera­tion of which parent was primary caregiver. Van Dyke and Van Dyke, 48 Or App 965, 618 P2d 465 (1980), Sup Ct review denied

Age difference does not overcome preference for keeping siblings together. Sagner and Sagner, 49 Or App 215, 619 P2d 660 (1980), Sup Ct review denied; Moe and Moe, 66 Or App 947, 676 P2d 336 (1984)

Absence of pro­vi­sion in dissolu­tion decree re­gard­ing move­ment of children out-of-state by custodial parent did not mean custodial parent could move children without court approval, as determina­tion of “best interest of the child” must be made. Smith and Smith, 290 Or 567, 624 P2d 114 (1981)

Joint legal custody and physical custody are not con­ceptss subject to separate awards. Klock and Klock, 83 Or App 656, 733 P2d 65 (1987)

Judg­ment pro­vi­sion for automatic change in custody without determining whether change served best interest of child is invalid. Jacobson and Jacobson, 84 Or App 704, 735 P2d 627 (1987), Sup Ct review denied; Korteweg v. Shroyer, 127 Or App 32, 870 P2d 863 (1994)

Court may not place condi­tions on custodial parent behavior unless necessary to protect best interest of child. Rollins v. Rollins, 93 Or App 150, 760 P2d 1381 (1988)

Applica­tion of “best interests of child” standard in custody dispute between natural parent and stepparent was improper. McQuade and McQuade, 124 Or App 243, 862 P2d 545 (1993)

Where custodial parent seeks to move out of state, maintaining close geographic connec­tion between child and both parents is not controlling factor in determining best interest of child. Duckett and Duckett, 137 Or App 446, 905 P2d 1170 (1995), Sup Ct review denied

Where modifica­tion of custody is sought, es­tab­lish­ment of substantial change in circumstances is prerequisite to court’s considera­tion of best interests of child. Francois and Francois, 179 Or App 165, 39 P3d 265 (2002)

Issuance of ex parte order against parent under Family Abuse Preven­tion Act is insufficient to trigger presump­tion that parent has committed abuse. Weismandel-Sullivan and Sullivan, 228 Or App 41, 206 P3d 1141 (2009), Sup Ct review denied

Although court found that primary caregiver factor weighed in mother’s favor, court did not abuse discre­tion by awarding primary custody to father when other statutory factors favored father. Murray and Murray, 287 Or App 809, 403 P3d 473 (2017)

Law Review Cita­tions

35 WLR 467, 523, 585, 601, 643 (1999); 36 WLR 549 (2000)

Chapter 107

Notes of Decisions

Trial court has authority to es­tab­lish liquidated sum as amount owed by spouse under settle­ment agree­ment. Horner and Horner, 119 Or App 112, 849 P2d 560 (1993)

Atty. Gen. Opinions

Emergency or necessity as the only grounds for waiver of 90-day period, (1971) Vol 35, p 982

Law Review Cita­tions

55 OLR 267-277 (1976); 27 WLR 51 (1991)

1 Legislative Counsel Committee, CHAPTER 107—Marital Dissolution, Annulment and Separation; Mediation and Conciliation Services; Family Abuse Prevention, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors107.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 107, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano107.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information