ORS 107.137: Factors for Determining Child Custody in Oregon

When an Oregon judge decides who gets custody, the ruling turns on the Oregon child custody factors set out in ORS 107.137: six considerations the court must weigh, all measured against the child’s best interests and welfare.¹ Before going further, it helps to know what “custody” actually means here. In Oregon, custody is the right to make major decisions about a child’s medical care, education, religion, and residence. It is not the same as parenting time, and having custody does not automatically dictate how many nights the child spends at each home.²

The Best Interests Standard Comes First

Every ruling under ORS 107.137 starts from one overriding principle: the court gives primary consideration to the child’s best interests and welfare. That principle is mandatory and outweighs either parent’s convenience or personal preference.

The statute also blocks a shortcut. Subsection (2) says the court cannot isolate any single factor and rely on it to the exclusion of the others.¹ A parent who scores high on one factor but poorly on several others cannot win custody on that single strength. The judge has to look at the whole picture.

The Six Statutory Factors

ORS 107.137(1) lists six factors the court must consider. They are not ranked, and their relative weight shifts with the family’s circumstances.

Emotional Ties With Family Members

The court examines the child’s bonds with each parent, with siblings, and with extended relatives. Connections that give the child a sense of security and belonging during the separation carry weight here.

Each Parent’s Interest In and Attitude Toward the Child

This is more than saying you want custody. The judge looks at how engaged and attentive each parent actually is, and whether that stated interest shows up in consistent, involved parenting.

Continuity of Existing Relationships

Judges try to avoid needless upheaval. If a child is settled into a school, a neighborhood, and a social circle, the court weighs whether a proposed arrangement would disrupt that stability.

Abuse of One Parent by the Other

Even when the rebuttable presumption discussed below does not apply, a history of one parent abusing the other is a standalone factor the court must consider.

Preference for the Primary Caregiver

If the court finds that one parent has been the child’s primary caregiver and that parent is fit, the statute gives that parent a preference. This is about who has done the day-to-day work of raising the child: feeding, bathing, handling medical appointments, showing up at school events. Higher income does not make a parent the primary caregiver.

Willingness to Foster a Relationship With the Other Parent

Courts favor a parent who genuinely encourages the child’s bond with the other parent over one who undermines it. There is a critical exception: a parent is not penalized for limiting contact when the other parent has sexually assaulted someone or engaged in a pattern of abuse that endangers the child or the parent.¹

Where the Child’s Preference Fits In

A child’s preference is not one of the six statutory factors, and Oregon law sets no specific age at which a child gets to choose where to live. Courts can treat a child’s wishes as an additional consideration, with the weight depending on the child’s maturity and whether the preference looks like the child’s own rather than the product of parental pressure. Older teenagers who can articulate reasoned wishes tend to be heard more clearly, but a child’s stated preference is never the deciding factor on its own.

How Domestic Violence Changes the Analysis

Oregon puts a thumb on the scale against abusive parents. Under ORS 107.137(2), if a parent has committed abuse as defined in ORS 107.705, the court starts with a rebuttable presumption that awarding sole or joint custody to that parent is not in the child’s best interests.¹ The abusive parent has to produce evidence to overcome that starting point.

ORS 107.705 defines abuse as any of the following acts between family or household members: attempting to cause or actually causing bodily injury, placing someone in fear of imminent bodily injury, or forcing someone into sexual relations through force or the threat of force.³ The abuse does not have to be directed at the child. Violence against the other parent or anyone in the household is enough to trigger the presumption.

Overcoming the presumption typically requires evidence of meaningful change. Courts look at things like completion of a batterer’s treatment program, compliance with protective orders, substance abuse counseling where relevant, and a demonstrated absence of further violence. The burden sits with the parent who has the abuse history.

The Bar When a Child Is Conceived by Rape

Subsection (6) goes past a presumption. If a parent has been convicted of rape under Oregon law and the child was conceived as a result of that rape, the court cannot award sole or joint custody to that parent. This is not rebuttable. Denial of custody under this provision does not, however, relieve the convicted parent of the obligation to pay child support.¹

What the Court Cannot Consider

ORS 107.137 also draws firm lines around what a judge is not allowed to weigh. These restrictions matter because they define which arguments will and will not land.

Gender

Under subsection (5), no preference in custody may be given to one parent over the other based solely on gender. Mothers and fathers enter the process on equal footing, and any assumption that young children belong with their mother has no legal force here.

Disability

Subsection (3) protects parents with disabilities. If a parent has a disability as defined by the Americans with Disabilities Act, the court cannot factor that disability into its decision unless it finds that specific behaviors or limitations tied to the disability are endangering, or will endanger, the child’s health, safety, or welfare. Federal law reinforces this: Title II of the ADA and Section 504 of the Rehabilitation Act require custody-related decisions to rest on individualized evidence rather than generalizations about what a parent with a disability can or cannot do.⁴

Conduct, Lifestyle, Income, and Social Environment

Subsection (4) limits the court’s authority to judge a parent’s personal life. Conduct, marital status, income, social environment, or lifestyle can only enter the analysis if there is evidence that these factors are causing, or may cause, emotional or physical harm to the child. A parent’s dating life, political views, or unconventional living arrangement is off-limits unless someone can show a concrete connection to harm. Many custody arguments falter here because one parent tries to paint the other as unfit based on lifestyle choices the child barely notices, and the court is required to disregard it.

Sole Custody, Joint Custody, and the Consent Rule

Oregon draws a sharp line between sole and joint custody. Sole custody puts all major decision-making in one parent’s hands. Joint custody means both parents share that decision-making authority. Joint custody is not the same as equal parenting time; it refers to how decisions get made, not where the child sleeps.²

Here is the detail that surprises many parents: under ORS 107.169, the court cannot order joint custody unless both parents agree to it.⁵ If one parent objects, joint custody is off the table and the judge must award sole custody to one parent. The practical effect is that if you and the other parent cannot cooperate on major decisions, the court will pick one of you to hold that authority.

The 60-Mile Relocation Rule

Oregon custody orders come with a built-in move restriction. Under ORS 107.159, every custody order must include a provision requiring that neither parent move to a residence more than 60 miles farther from the other parent without giving reasonable notice of the change and providing a copy of that notice to the court.⁶ The 60 miles is measured as additional distance from the other parent, not total distance from your current address.

A court can waive the notice requirement on a parent’s motion for good cause, such as a domestic violence situation where disclosing a new address could put the relocating parent at risk. Outside that kind of exception, moving without proper notice can hurt your credibility with the court and open the door to a modification.

When the Court Orders an Investigation or Evaluation

When the parents’ own testimony leaves the judge with unanswered questions about the statutory factors, ORS 107.425 gives the court broad authority to dig deeper. The court can order an investigation into either parent’s character, family relationships, past conduct, earning ability, and financial situation to protect the child’s interests.⁷

Beyond general investigations, the judge can order independent physical, psychological, psychiatric, or mental health evaluations of either parent or the child. If the parents cannot agree on who performs the evaluation, the court appoints someone. Costs are assigned to one or both parents based on financial ability and cannot be charged to public defense funds. These evaluations commonly run from roughly $1,500 on the low end to well over $10,000 for complex cases involving multiple experts, and the judge can hold off on issuing a final custody order until the evaluation is complete.⁷

1
Oregon State Legislature. Oregon Code 107.137 – Factors Considered in Determining Custody of Child
2
Oregon Judicial Department. Words I Need to Know
3
Oregon State Legislature. Oregon Revised Statutes Chapter 107 – Section 107.705
4
ADA.gov. Protecting the Rights of Parents and Prospective Parents with Disabilities
5
Oregon State Legislature. Oregon Revised Statutes Chapter 107 – Section 107.169
6
Oregon State Legislature. Oregon Revised Statutes Chapter 107 – Section 107.159
7
Oregon State Legislature. Oregon Revised Statutes Chapter 107 – Section 107.425