How does the court decide who gets primary parenting rights if both parents want it?

By Laura Schantz
February 02, 2017
How does the court decide who gets primary parenting rights if both parents want it?

The court is required to determine one parent – a custodial parent in Oregon or a primary residential parent in Washington. A lot of times parties can agree to do what's called “joint custody” or “joint residential parents”. That is only when the parties agree. If they will not agree to joint custody, then the judge has to decide one or the other, and there are a lot of factors in our statutes that go into determining which parent will win. The witnesses are proving to the judge certain factors – such as one of the factors would be, which parent was the primary parent while they were still married? That's one of the big factors in getting custody.

You would bring in witnesses to say this person was always at home with the children, the other person wasn’t as home as much, and try to describe to prove that one parent was the primary parent. Another factor would be, which parent is most likely to encourage and assist the children in having a good relationship with their other parent? You would be bringing witnesses in and/or your client would be testifying that the other parent was refusing to let the kids see the parent, was making it very difficult for that parent, was saying negative things about that parent to the children. That would be helping to prove this parent is not the kind of parent that's going to facilitate the relationship with the other parent, which is another one of the factors in determining custody.

The judge has to look at a whole list of different factors when he or she is deciding what is in the best interest of the children. That's what the judge has to do, is decide what's in their best interest when determining which parent will be awarded custody.

Laura Schantz is a family law attorney and mediator practicing in Beaverton, Oregon. To learn more about Laura Schantz and her firm, Schantz Law P.C., visit

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February 02, 2017
Categories:  FAQs

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