August 16, 2019 by Don Hubin & George Piskor
On June 7, Oregon Governor Kate Brown signed into law Senate Bill 318, a shared parenting bill to take effect in January, 2020. Initially, there was some skepticism about how significant this achievement was. The bill, as signed, adds just one clause to Oregon’s parenting plan laws. It says:
“In developing a parenting plan under this subsection, the court may order equal parenting time. If a parent requests that the court order equal parenting time in the parenting plan, the court may deny the request if the court determines, by written findings, that equal parenting time is not in the best interests of the child or endangers the safety of the parties.” ORS 107.102(4)(c)
The first sentence does not grant Oregon family law courts any power that they didn’t already have. The significance of the new law rests on the second sentence.
The concern that the law was not strong has to do with what, exactly, the statute requires courts to do in order to deny a parent’s request for equal time. It doesn’t really come to much if all that is necessary is for the court to state in its judgment: “equal parenting time is not in the best interests of the child” or “equal parenting time endangers the safety of the parties.” Courts are not constrained from making their decisions on any grounds they wish or on no grounds at all.
However, reviewing the legislative history of SB 318 tells a fuller story of the legislative intent of the bill. “Staff Measure Summary” says:
“[Senate Bill 318] … clarifies that the court may only deny a request for a parenting plan that orders equal parenting time when it enters written findings describing why equal parenting time is not in the best interest of the child or endangers the safety of the parties.
In one sentence, this legislative summary clarifies two points. First, that the ‘if’ clause is really an ‘only if’ clause. That is, the written findings in question are a necessary condition, for the court to deny the request; courts are required to provide written findings.
Secondly, the summary makes clear that the intent of the legislature was that a mere declaration of the sort imagined above would not be satisfactory. A court can deny this request only if it “enters written findings describing why equal parenting time is not in the best interest of the child or endangers the safety of the parties” (emphasis added). Merely declaring that it does is not sufficient.
Some judges, called ‘textualists’, hold that legislative intent is irrelevant to interpreting the law. Statutes must be interpreted based solely on the text of the statute. However, most judges will attempt to resolve ambiguity and vagueness by looking at the problem that the legislature was attempting to solve and what they were attempting to do to solve it.
The requirement that family courts justify denying a request for equal parenting, taken by itself, is a strong equal parenting presumption. This new statute, again, taken in isolation, would make Oregon’s laws among the strongest equal parenting laws in the country, albeit via an unusual opt-out approach that is almost certain to be challenged.
However, Oregon law also has a provision that is terrible for shared parenting. It states that:
“The court shall not order joint custody, unless both parents agree to the terms and conditions of the order.” (ORS 107.169(3))
This provision effectively gives one parent a veto over joint parenting. How will these two elements of Oregon’s statutes be handled by the courts? Will some courts hold that absence of agreement on the terms of joint custody is grounds for holding that equal parenting time is not in the children’s best interest? Will some courts hold that, because of the parental veto provision, they can’t order joint custody, but they can, nevertheless, order equal parenting time?
We at NPO will be watching. But, in the meantime, while SB 318 as introduced was a considerably stronger and better bill, the version of the bill that was passed and signed into law by the Governor is likely to have significant beneficial consequences for Oregon’s children. Those who worked hard to get SB 318 passed are to be congratulated. We hope they’ll work to get the parental veto clause repealed.