Portland Legal Services - Joanne Reisman, Attorney at Law
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Family Law

Recreational marijuana and child custody

Now that Marijuana is legal for recreational use in Oregon we need to discuss considerations that parents should make about their use of Marijuana and disputes this might lead to in Custody and Parenting time matters.  Just like alcohol use, the court is going to want to know that a parent's use of any substance when they have children in their care, doesn't impair their ability to parent their children and does not put their child at risk. 

It should be common sense that you don't want to be intoxicated when driving or otherwise supervising the transportation of your minor children.   Not only is it illegal, but it puts your minor passengers at great risk of being injured or killed because your impairment means that an accident is more likely to happen.

But how about when you aren't driving.  When you and the children are out using public transportation.  Is it OK then to indulge?  Generally it is not a good idea.  You have young children with you that you need to be constantly supervising.  You can't properly supervise young children when  your senses are impaired.

How about when you have the children visiting during your parenting time?  Again, abstaining from recreational Marijuana use as well as alcohol use when it is your turn to parent is highly recommended especially if you have a very acrimonious relationship with the other parent. Don't give them any reason to haul you back to court and put limits on your parenting time. 

What about medicinal use?  There is a big difference between CBDs and THCs.  CBD only products can be safely used with no psychoactive effects.   Even CBDs with a small amount of THC can be used without noticeable impairment if the amount of THC is very little.  The problem is that the Judge you are going to appear in front of may not know the differences.  So if the issue comes up you should be prepared to put on expert testimony about your medical need to use Marijuana products, the types of products you use and what if any impairment this causes.  Parents don't lose their right to parent when they are on any other prescribed pain medication so the mere use of Marijuana for medical reasons should not result in your losing your parental rights.  But you need to be prepared to address the issue if it comes up in court.  You also need to be honest with yourself as to whether the level of medical intervention you need is to the point that you are too impaired to adequately parent.

The best way to deal with the other parent's concerns about your use of Marijuana and your parenting time is to discuss this during mediation.  Most Oregon family courts offer a mediation process with trained family counselors where parents can try to work out agreements for parenting time and custody.  These agreements can address legal substance use.   It is in your interest to reach an agreement with the other parent that is in the best interest of your children and then stick to whatever you have agreed to.


The case of Staveland vs. Fisher , 25 OR App 210 (2018) demonstrates the disparity in the results between a trial court dividing property for an unmarried couples as compared to property division in a divorce. Under Oregon Law, by virtue of being married, there arises a presumption of equal contribution.  ORS 107.105. Accordingly, for married couples, it doesn’t matter what the parties say their intent was with respect to the property. It also doesn’t matter if only one spouse’s name is on the title.  It doesn’t matter if one spouse owned the property prior to the marriage (although in that case, normally only the appreciation of the property during the marriage would count as the marital portion to be shared).

For a married couple, the starting point in property division is that the court is going to  look at ALL PROPERTY owned during the marriage as the property to be split.  A spouse wanting to rebut the legal presumption of equal contribution is going to have a difficult up hill battle to prove that the two spouses did not equally contribute to the efforts in the marriage which fostered their ultimate financial state.  Keep in mind, by equal contribution, we do not mean that each spouse worked and brought home a paycheck.

The courts have long recognized that participation as a full time home maker counts as an equal contribution in a marriage.  Cases where a spouse is found to not have contributed equally tend to be extreme situations where the non-contributing spouse was completely absent from the household, perhaps due to mental illness and inpatient hospitalization, or the spouse’s participation was counter productive as in the case of a person suffering from some type of addiction who dissipates marital assets to support their addiction.

Contrast the situation with unmarried couples.  There is no presumption of equal contribution.  But rather the struggle is to prove what the parties intended with respect to property owned by either or both of them during their period of cohabitation.  As the Staveland case illustrates, this leaves the court open to make subjective conclusions based on a myriad of factors.  In the Staveland case the court ended up focusing on representations that the couple made during the cohabitation to conclude that the property bought solely by Mr. Fisher, the Dickinson House, but used as a joint residence, was intended by the couple to be a joint investment and consequently the court awards Ms. Staveland ½ of the appreciated value of the Dickinson House, which accrued during their cohabitation.   The court however refused to offset this award with any property interest being awarded to Mr. Fisher for the appreciation of the  Ainsworth house, used as a rental, which Ms. Staveland owned prior to and during the relationship.   The court again relied on evidence presented to determine that there was no similar intent to share the equity in the Ainsworth house.

So the lesson to be learned here is if you plan to live together with someone and have financial dealings, you need to put your intentions as a financial partnership IN WRITING to avoid an unexpected outcome.

    DO not assume that your relationship will last - statistically the odds are against that.

    DO not assume that living together means you will finalize your plans to get married.

    DO not assume the person that is all lovey dovey right now will still be generous and giving when you get around to breaking up.

    DO not assume that there is some kind judge who will figure everything out and make sure that fairness prevails over the facts of the case.


Modifying Child Support

Anyone paying or receiving child support can seek a review and modification at no charge through the Oregon Child Support Program.  This link will explain how to request a review and modification and when you are eligible to get a review:  http://www.oregonchildsupport.gov/services/pages/modification.aspx

You can request a review if it has been 35 months since the date the last order was entered or reviewed.  You don't have to wait 35 months if you can show proof that there has been a significant change of circumstance since your order was finalized. Some examples of significant changes are:
  • Physical custody of the child has changed
  • The needs of the child have changed
  • The number of children involved has changed
  • The income of one or both parents has change

If you want your child support reviewed or modified and it has not been 35 months and you are not sure if there has been a substantial change of circumstance, you can always contact an attorney.  An attorney can help you file a modification proceeding.  However this will involve paying attorney fees.   If you can get an administrative review you won't incur attorney fees.  So try contacting your local child support enforcement office first, to request a free review:  http://www.oregonchildsupport.gov/offices/pages/index.aspx

WARNING:  Once you request a review you should expect that this will launch a review and most likely a modification of your child support which may or may not give you a favorable result.  So, you should always try to estimate if requesting a review will help you or hurt you before you initiate the process.  The safest way to do this is consult with an attorney and have them help you with a preliminary child support calculation.  You will need to have your income information and a pretty good idea of what the other parent's income is.

You can do a calculation online using this on line child support calculator to get an idea of what the new support amount will be: https://justice.oregon.gov/guidelines/.  Be aware that there are administrative rules that allow rebuttals to the presumed support amount that you get from the online calculator.   This means that you may be able to argue that the support should be more or less then the default amount.   You will need the help of an attorney if you want to use any rebuttal arguments as this is a rather subjective area.  You really need an expert to guide you. This page explains the allowable reasons for requesting a deviation from the presumptively correct child support amount: http://www.oregonchildsupport.gov/laws/rules/docs/050_0760.pdf

Grandparent Visitation Rights under Oregon Law

There is really no such thing in Oregon as visitation rights solely based on the relationship of being a grandparent.  Oregon had attempted to create Grandparent visitation rights in the past, but the statute creating those rights was repealed after the landmark decisions in Troxel v. Granville,530 U.S. 57 (2000).   In the Troxel case the United States Supreme Court determined that parents have a constitutional right to rear their children free from the intervention of the State or a third party under normal circumstances.  There is a presumption that a parent acts in the best interest of their children so a parent's decision to limit visitation with a grandparent is presumed to be correct until proven otherwise and in examining the parent's decision the court must give great weight or great deference to the parent's decision and right to make that decision. 

The right of the parent comes first but may be limited if there is a showing the parent is not fit to make decisions about their children or that they are not fit to parent their children. (ORS 109.119 lists several factors that the court must consider before it can override a parent's decision.)  One must understand that most parental decisions will be upheld by the court due to the great weight that must be given to the parent's decision even if there might be a better way to raise or parent that child.  Parent's don't lose their constitutional rights to parent their children just because someone else may have a better idea on how the children should be raised.  So even if the intervening party that wants custody or visitation can show that they could offer the child better care or a better life, this would not be enough to force the biological parent to turn over custody or allow visitation.  It is not about the court considering whether a grandparent or another person could do a better job then the biological parent.  It is about the parent having a superior constitutionally protected right to determine how they raise their children and who their children associate with.  This right of biological parents cannot be easily disturbed.

Following the decision in Troxel. Oregon enacted a new statute, ORS 109.119, which is frequently called the "Psychological Parent" statute.  Essentially, this statute gives people that have developed a very close, almost parent like relationship with a child, the right to Petition in the court for custody or visitation with the child. This rather complex way to ask for visitation or custody is covered by ORS 109.119. Your can read the text at this link: http://www.oregonlaws.org/ors/109.119  Pay attention to the definitions in the statute that describe two types of relationships that can give rise to a right to Petition in the court.   One is called a Child-parent relationship.  The other and less significant relationship is called an ongoing personal relationship.  You need to have the facts in your situation which show that you have established one of these types of relationships to qualify to seek relief using this statute.  The language of the statute has been interpreted by court decisions that need to be read to fully understand what type of relationship would qualify and what type of relief that court is likely to allow.  So it is going to be necessary to talk to a family law attorney to figure out whether your situation will qualify and to get an idea of what you might expect the court to order if you file a petition.

Absent establishing a very close relationship as defined by ORS 109.119, that would give rise to the right to petition for visitation or custody rights under ORS 109.119, grandparents normally get to see their grandchildren when one of the biological parents brings them to visit. So the path of least resistance is for grandparents to work with the biological parents and set up the visitation.

To determine if you have any rights for court ordered visitation under ORS 109.119, you will need to consult with an attorney.  If you don't yet currently have the requisite relationship, an attorney can help you understand what steps you might be able to take to build that type of relationship so you can apply in the future.  Keep in mind that at least one of the types of relief you can seek under ORS 109.119 requires that your case has to be filed within 6 months of the time period when you had the requisite close relationship with the child.   So, depending on what part of the statute applies in your situation, you may need to file within 6 months of when your relationship with the child began to change.  In other situations you may have more time, but the safest course of action is to speak to an attorney right away so you don't miss an important deadline for filing.

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