I don't agree with my ex-husband's parenting choices. Is there anything I can do?

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My husband and I are separated and have been for about a year. We haven't started the divorce or child custody process yet and we share the children about 50/50 split. I take serious issues on how he handles the children when he has them. He smokes in the car with them and the children come back to me smelling like cigarettes. He has a computer in the kids bedroom with unlimited access to the internet. Among other things, I have voiced my concerns and told him my dislike for his practices and all he says is "when the kids are at my house, i do what i want". I don't want my children exposed to cigarettes or sit on the computer all day. Is there anything I can do? Can he really just tell me "too bad" every time I bring up a concern??

4 Attorney Answers

Best Answer
The judge is required to “give primary consideration to the best interests and welfare of the child” ORS 107.137(1). There are five factors that the judge is required to consider in granting sole custody to one parent over the other parent: (a) Emotional ties between the child and other family members; (b) Each parents’ interest in and attitude toward the child; (c) The desirability of continuing an existing relationship; (d) The abuse of one parent by the other and (e) The willingness and ability of the parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
If both parents were living with the child just before the legal action started, the parents begin the custody dispute on equal footing. The next step is to discern which parent is the “primary parent.” In ORS 107.137 (1)(b) the judge is required to consider the parties’ interest in and attitude toward the child. This has general been interpreted as determining who fills the role of primary parent. Of the five statutory factors, this factor has the most significance with judges.
The primary parent is the one who handles most of the decision-making and care-taking of the child. The primary parent interacts with the child and spends more time with the child than the other parent, and makes most of the day-to-day decisions about the child’s activities. In some marriages, there is no clear-cut primary parent, as the parents divide the parenting duties more or less equally. However, in most marriages the primary parent is the mother. The younger the child, the more likely the mother will be the primary parent.
Therefore, the parents’ behavior, as parents, prior to the custody dispute largely determines who will be granted “sole legal custody” and “physical custody” of the child. Absent unusual circumstances, the non-custodial parent is granted a visitation schedule wherein he or she has the child every other weekend, half the annual holidays and several weeks each summer. The Courts are extremely reluctant to deny contact between the child and the non-custodial parent, as they recognize that a child needs time with both parents.
When a married couple has a baby they have joint legal custody of the baby, even though no one calls it that. “Joint legal custody” means that each parent is equal under the law as regards to the decision-making for and on behalf of the child. During a divorce, parents have the option of continuing joint legal custody of the children, but they must both agree to do so. The judge does not have the authority to aware joint legal custody over the objections of one parent. The judge only has authority to grant sole legal custody to one parent and a visitation schedule to the other parent.
Best Answer
Right now there is nothing you can do because you are married and not separated legally. Courts do not get involved in the marital disputes of couples or families unless the is abuse and/or neglect. This does not rise to that level based on what you stated. What you need to do is moved on with your lives for the sake of all involved especially the children who are in divorce limbo. Being in divorce purgatory is not good for anyone. How doyoour kids explain that to their teachers and friends. Well my parents donot live together but they are not divorced either. Huh? Get the process moving and then you can mediate some of your issues. I will tell you that as a parent you do not have the right to tell him how to parent. You can sit down and try to mediate and work things out but in the end if he wants them to have access to a computer then he makes that call and not you when they are with him. You really should get in to talk to a lawyer now. In most cases and depending on the ages of the children it may not be in the children's best interests to be split 50/50 depending on the facts of your case. Get in to talk to some experts ASAP. Good luck.
You can file a divorce petition and establish custody. Until there's a court order for custody, both parents have equal legal custody rights in their children. Once a case is filed, a specific award must be made. There are two related issues to child custody: legal custody, and physical custody.
Legal custody refers to decision-making authority over a child. A parent with legal custody decides where a child goes to school and what religion they observe, makes medical decisions for the child, and so on. Parents can agree to joint legal custody, sharing this authority, but a court will not order joint custody unless the parents agree to it.
Physical custody, or parenting time, refers to where a child lives. Each custody case ends with a parenting plan describing where the child or children stay. These plans can be as specific or general as the parents need. The parents are free to deviate from the plan if they agree to do so, but the plan is there for when they can't agree. The harder it is for two parents to agree on these issues, the more important it is that the plan be clear and specific.
Usually, a parent who has legal custody of a child also has more parenting time, but this is not required. Parents can share equal parenting time while one has legal custody; or parents can share joint legal custody while one of them has physical custody most of the time.
Under Oregon law, decisions about legal and physical custody are made according to the best interests of the children. Obviously that's quite vague. But the law sets forth a few standards for determining the best interests of the children:
One principle is that the children should remain with the parent who spent most time with them before -- the "primary custodial parent." In this case, it sounds like you both have equal claims here. The law also presumes that it is in the best interests of the children to have an ongoing relationship and continuing contact with both of their parents. If the court must decide which parent is awarded primary legal and physical custody, it is more likely to grant it to the parent who has shown that they will encourage an ongoing relationship between the children and the other parent. Parents should not try to keep their children away from each other, unless one parent has clearly been abusing the children.
Oregon law explicitly does not consider the lifestyle choices of each parent in child custody decisions, except as it affects the welfare of the children. Judges do not want to hear parents attacking each other in court; the focus is on the children, not on each person's faults. That said, a parent's refusal to work with the other parent, or to mind the children's safety from things like cigarette smoke, will not look good to a court.
Another common means to figure out the best interests of children in a custody case is to order a professional custody evaluation. In this process, a social worker will interview the parents and the children, observe them interacting with each other, maybe visit both parents' homes, and make a recommendation to the Court. Judges follow these recommendations almost all the time. The problem is that these evaluations can be fairly expensive: $1,200 for court-appointed evaluators; $3,000 or more for a private evaluation, which is rather more thorough. Parents are typically asked to pay equally for these costs, or to pay in proportion to their incomes.
You should consult with an attorney if you're going through a divorce. You can call the Oregon State Bar for a free referral at 503-684-3763.
I don't agree 100% with my esteemed colleagues. But they are on the right track. They are both right that you need to move forward and get a divorce going before your concerns will be heard. While it is true that this could lead the courts to designating a primary parent and a parenting plan and that this does mean the primary parent has more say in certain day to day decisions about the children, it does not mean that the courts specifically use the terms "legal" custody versus "Physical" custody. It is helpful to break it down like that to explain the concept but these are not terms that the court generally uses. The bottom line is that absent a mutual agreement for joint custody and shared decision making - which I don't think is going to work given your situation - there will need to be a way to pick a primary parent where the children reside most of the time and the other parent will have the children coming over to stay with them on the days they get pursuant to the parenting plan. In terms of cigarette smoke it is a known health hazard and you you have every right to ask for restrictions that keep your children from being exposes. I think I judge will grant you that request. As for the computer you also have good reason to be concerned and there are plenty of applications that can be installed to restrict the access children have to things like pornography that a request for limits like this would probably be met favorably by the court. But in terms of what the children do when they are at dad's house - it is really up to dad to set how he wants to do his parenting time during his time. So if he wants to play video games for hours with the children that's his choice. If the children have health issues and need more physical activity per their doctors recommendation then maybe some limits would be in order and dad may be required by the court to plan some physical activities as part of the daily routine. So it is going to be up to dad subject to limits that you ask the court to impose if there is a real health or safety issue that merits the court restricting dad's rights. I would start looking for an attorney and discuss these issues with them. It might also be wise to plan a strategy to insure that you end up being the primary parent. Be advised that the Lawyer Referral service Mr. Bodzin suggests is only a list that attorneys pay to be on. They tell the office what types of cases they want. When you call you get the next person on the list. There isn't any special screening or matching going on. The attorney will have to pay the Bar Association a percentage of the fees they collect from you. This service tends to attract less experienced attorneys that are just starting to build their practice. The one advantage of this program is that the attorney must promise to speak to you for $35. You will find that the more experienced attorneys don't participate in this program. You might as well use the internet or pick some names off of Avvo and start calling around. http://www.portlandlegalservices.com

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