Oregon Revised Statutes

Or. Rev. Stat. § 107.137 (2026)

Factors considered in determining custody of child

✓ current as of May 2026

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107.137 Factors considered in determining custody of child. (1) Except as provided in subsection (6) of this section, in determining custody of a minor child under ORS 107.105 or 107.135, the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors:

(a) The emotional ties between the child and other family members;

(b) The interest of the parties in and attitude toward the child;

(d) The abuse of one parent by the other;

(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and

(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.

(2) The best interests and welfare of the child in a custody matter may not be determined by isolating any one of the relevant factors referred to in subsection (1) of this section, or any other relevant factor, and relying on it to the exclusion of other factors. However, if a parent has committed abuse as defined in ORS 107.705, other than as described in subsection (6) of this section, there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse.

(3) If a party has a disability as defined by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), the court may not consider that party’s disability in determining custody unless the court finds that behaviors or limitations of the party that are related to the party’s disability are endangering or will likely endanger the health, safety or welfare of the child.

(4) In determining custody of a minor child under ORS 107.105 or 107.135, the court shall consider the conduct, marital status, income, social environment or lifestyle of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the child.

(5) No preference in custody may be given to one parent over the other based solely on the gender of the parent.

(6)(a) The court determining custody of a minor child under ORS 107.105 or 107.135 may not award sole or joint custody of the child to a parent if:

(A) The court finds that the parent has been convicted of rape under ORS 163.355, 163.365 or 163.375 or other comparable law of another jurisdiction; and

(B) The rape resulted in the conception of the child.

(b) A denial of custody under this subsection does not relieve the parent of any obligation to pay child support. [1975 c.722 §2; 1987 c.795 §14; 1997 c.707 §35; 1999 c.762 §2; 2011 c.438 §3; 2013 c.72 §1; 2025 c.592 §114]

Notes of Decisions

Cited in 169 cases (53 in the last 5 years), 1976–2026 · leading case: In re the Marriage of Murray, 403 P.3d 473 (Or. Ct. App. 2017).

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In re the Marriage of Murray, 403 P.3d 473 (Or. Ct. App. 2017). · cites it 23× “Mother raises a single assignment of error, arguing that the trial court legally erred in its application of the statutory factors that govern child custody awards under ORS 107.137. We disagree; the court correctly applied the statutory factors under ORS 107.”

Sjomeling v. Lasser, 285 P.3d 1116 (Or. Ct. App. 2012). · cites it 11× “at 620-21, we ultimately held that “the trial court failed to properly exercise its discretion in making its custody determination under ORS 107.137 because it failed to properly consider the preference in ORS 107.”

Stancliff & Stancliff, 513 P.3d 20 (Or. Ct. App. 2022). · cites it 14× ““First, I’ve considered all the factors under ORS 107.137. You, [mother] were the primary parent for the majority of the children’s lives up to July 2018 * * * but I understand why you left the children with him in July of 2018.”

Nice v. Townley, 274 P.3d 227 (Or. Ct. App. 2012). · cites it 14× “Although the court did not explicitly determine which parent was M’s primary caregiver, it did state that, before M’s first birthday, mother had been M’s primary parent. Mother appeals, contending that the trial court erred in awarding custody of M to father.”

Henretty v. Lewis, 509 P.3d 701 (Or. Ct. App. 2022). · cites it 24× “She contends that the trial court erred in making its best-interests deter- mination under ORS 107.137, because it failed to designate a primary caregiver, such that neither party was given the benefit of the statutory preference for the primary caregiver under ORS 107.”

Matter of Marriage of Hamilton-Waller, 123 P.3d 310 (Or. Ct. App. 2005). · cites it 18× “See ORS 107.137(1) (primary consideration in custody determinations is best interests of the children).”

In re the Marriage of Finney-Chokey, 381 P.3d 1015 (Or. Ct. App. 2016). · cites it 14× “As to the relocation, the parties agreed that the issue for the court was whether it was in E’s best interests under the factors listed in ORS 107.137(1). The court then heard five days of testimony and argument from the parties, their friends and their family members,…”

In re the Custody of M. T., 238 P.3d 1003 (Or. Ct. App. 2010). · cites it 16× “Our understanding is that mother requests that we exercise our discretion to review de novo because the trial court’s judgment does not demonstrate that, in determining the best interests of M, the court considered the relevant statutory factors set out in ORS 107.137, the text…”

Gilbride v. Smith, 537 P.3d 961 (Or. Ct. App. 2023). · cites it 14× “We decline to do so because the trial court made express factual findings, including demean- or-based credibility findings, and father does not identify any factual error in the trial court’s custody determination, but rather argues only that the trial court legally erred in…”

Campbell v. Tardio, 323 P.3d 317 (Or. Ct. App. 2014). · cites it 11× “Nonetheless, the trial court was required to consider the factors in ORS 107.137 in awarding custody. See ORS 109.”

Johnson & Johnson, 483 P.3d 1174 (Or. Ct. App. 2021). · cites it 19× “See ORS 107.137. The court must assess the six statutory factors in ORS 107.”

In re the Marriage of Miller, 345 P.3d 436 (Or. Ct. App. 2015). · cites it 18× “1 Mother argues that the trial court legally erred in its application of the statute that governs child custody awards, ORS 107.137. We agree. We conclude that the trial court impermissibly relied on the “conduct, marital status, income, social environment or lifestyle” of…”

Show all 169 citing cases →

— Or. Rev. Stat. § 107.137(1) — 95 cases

Stancliff & Stancliff, 513 P.3d 20 (Or. Ct. App. 2022). ““First, I’ve considered all the factors under ORS 107.137. You, [mother] were the primary parent for the majority of the children’s lives up to July 2018 * * * but I understand why you left the children with him in July of 2018.”

In re the Marriage of Finney-Chokey, 381 P.3d 1015 (Or. Ct. App. 2016). “As to the relocation, the parties agreed that the issue for the court was whether it was in E’s best interests under the factors listed in ORS 107.137(1). The court then heard five days of testimony and argument from the parties, their friends and their family members,…”

Matter of Marriage of Hamilton-Waller, 123 P.3d 310 (Or. Ct. App. 2005). “See ORS 107.137(1) (primary consideration in custody determinations is best interests of the children).”

Sjomeling v. Lasser, 285 P.3d 1116 (Or. Ct. App. 2012). “at 620-21, we ultimately held that “the trial court failed to properly exercise its discretion in making its custody determination under ORS 107.137 because it failed to properly consider the preference in ORS 107.”

Gilbride v. Smith, 537 P.3d 961 (Or. Ct. App. 2023). “We decline to do so because the trial court made express factual findings, including demean- or-based credibility findings, and father does not identify any factual error in the trial court’s custody determination, but rather argues only that the trial court legally erred in…”

— Or. Rev. Stat. § 107.137(1)(a) — 13 cases

In Re Marriage of Wilson, 55 P.3d 1106 (Or. Ct. App. 2002).

In re the Custody of M. T., 238 P.3d 1003 (Or. Ct. App. 2010). “Our understanding is that mother requests that we exercise our discretion to review de novo because the trial court’s judgment does not demonstrate that, in determining the best interests of M, the court considered the relevant statutory factors set out in ORS 107.137, the text…”

In Re the Marriage of Bradburry, 238 P.3d 431 (Or. Ct. App. 2010).

In Re the Marriage of Ringler, 188 P.3d 461 (Or. Ct. App. 2008).

— Or. Rev. Stat. § 107.137(1)(b) — 12 cases

Johnson & Johnson, 483 P.3d 1174 (Or. Ct. App. 2021). “See ORS 107.137. The court must assess the six statutory factors in ORS 107.”

In Re the Marriage of Ringler, 188 P.3d 461 (Or. Ct. App. 2008).

In the Matter of Marriage of Holcomb & Holcomb, 888 P.2d 1046 (Or. Ct. App. 1995).

In Re the Marriage of Bradburry, 238 P.3d 431 (Or. Ct. App. 2010).

— Or. Rev. Stat. § 107.137(1)(c) — 10 cases

In Re the Marriage of Kirkpatrick, 273 P.3d 361 (Or. Ct. App. 2012).

In the Matter of Marriage of Holcomb & Holcomb, 888 P.2d 1046 (Or. Ct. App. 1995).

In Re the Marriage of Bradburry, 238 P.3d 431 (Or. Ct. App. 2010).

In Matter of Marriage of Boldt, 801 P.2d 874 (Or. Ct. App. 1990).

Matter of Marriage of Tuttle, 660 P.2d 196 (Or. Ct. App. 1983).

— Or. Rev. Stat. § 107.137(1)(d) — 5 cases

Dickson & Swartz, 494 P.3d 377 (Or. Ct. App. 2021).

In Re the Marriage of Bradburry, 238 P.3d 431 (Or. Ct. App. 2010).

Estens v. Wells, 349 Or. App. 114 (Or. Ct. App. 2026).

Meeker & Klingele, 332 Or. App. 411 (Or. Ct. App. 2024).

— Or. Rev. Stat. § 107.137(1)(e) — 21 cases

Henretty v. Lewis, 509 P.3d 701 (Or. Ct. App. 2022). “She contends that the trial court erred in making its best-interests deter- mination under ORS 107.137, because it failed to designate a primary caregiver, such that neither party was given the benefit of the statutory preference for the primary caregiver under ORS 107.”

Dep't of Human Servs. v. A. B. (In Re J. B.), 412 P.3d 1169 (Or. 2018).

Wanting & Wanting, 475 P.3d 127 (Or. Ct. App. 2020).

Johnson & Johnson, 483 P.3d 1174 (Or. Ct. App. 2021). “See ORS 107.137. The court must assess the six statutory factors in ORS 107.”

— Or. Rev. Stat. § 107.137(1)(f) — 10 cases

Matter of Marriage of Hamilton-Waller, 123 P.3d 310 (Or. Ct. App. 2005). “See ORS 107.137(1) (primary consideration in custody determinations is best interests of the children).”

In Re the Marriage of Kirkpatrick, 273 P.3d 361 (Or. Ct. App. 2012).

Banerjee & Fiorillo, 485 P.3d 920 (Or. Ct. App. 2021).

In Re the Marriage of Bradburry, 238 P.3d 431 (Or. Ct. App. 2010).

Dick v. Yan, 328 Or. App. 641 (Or. Ct. App. 2023).

— Or. Rev. Stat. § 107.137(2) — 30 cases

In re the Marriage of Murray, 403 P.3d 473 (Or. Ct. App. 2017). “Mother raises a single assignment of error, arguing that the trial court legally erred in its application of the statutory factors that govern child custody awards under ORS 107.137. We disagree; the court correctly applied the statutory factors under ORS 107.”

Matter of Marriage of Hamilton-Waller, 123 P.3d 310 (Or. Ct. App. 2005). “See ORS 107.137(1) (primary consideration in custody determinations is best interests of the children).”

In Re the Marriage of Ringler, 188 P.3d 461 (Or. Ct. App. 2008).

In the Matter of Travis, 237 P.3d 868 (Or. Ct. App. 2010).

— Or. Rev. Stat. § 107.137(3) — 13 cases

In re the Marriage of Miller, 345 P.3d 436 (Or. Ct. App. 2015). “1 Mother argues that the trial court legally erred in its application of the statute that governs child custody awards, ORS 107.137. We agree. We conclude that the trial court impermissibly relied on the “conduct, marital status, income, social environment or lifestyle” of…”

State Ex Rel Johnson v. Bail, 938 P.2d 209 (Or. 1997).

Gleason v. Michlitsch, 728 P.2d 965 (Or. Ct. App. 1986).

In re the Marriage of Van Dyke, 618 P.2d 465 (Or. Ct. App. 1980).

— Or. Rev. Stat. § 107.137(4) — 17 cases

In Re the Dissolution of the Marriage of Niedert, 559 P.2d 515 (Or. Ct. App. 1977).

Matter of Marriage of Hamilton-Waller, 123 P.3d 310 (Or. Ct. App. 2005). “See ORS 107.137(1) (primary consideration in custody determinations is best interests of the children).”

Matter of Marriage of Handy & Handy, 605 P.2d 738 (Or. Ct. App. 1980).

— Or. Rev. Stat. § 107.137(a) — 1 case

In the Matter of Marriage of Wilson & Wilson, 110 P.3d 1106 (Or. Ct. App. 2005).

— Or. Rev. Stat. § 107.137(l)(a) — 11 cases

In the Matter of Marriage of Wilson & Wilson, 110 P.3d 1106 (Or. Ct. App. 2005).

Campbell v. Tardio, 323 P.3d 317 (Or. Ct. App. 2014). “Nonetheless, the trial court was required to consider the factors in ORS 107.137 in awarding custody. See ORS 109.”

In Re the Marriage of Maurer, 262 P.3d 1175 (Or. Ct. App. 2011).

In the Matter of Travis, 237 P.3d 868 (Or. Ct. App. 2010).

— Or. Rev. Stat. § 107.137(l)(b) — 8 cases

Campbell v. Tardio, 323 P.3d 317 (Or. Ct. App. 2014). “Nonetheless, the trial court was required to consider the factors in ORS 107.137 in awarding custody. See ORS 109.”

In the Matter of Travis, 237 P.3d 868 (Or. Ct. App. 2010).

In Matter of Custody of Dtjs-B, 238 P.3d 30 (Or. Ct. App. 2010).

In Re the Marriage of Maurer, 262 P.3d 1175 (Or. Ct. App. 2011).

— Or. Rev. Stat. § 107.137(l)(c) — 8 cases

Campbell v. Tardio, 323 P.3d 317 (Or. Ct. App. 2014). “Nonetheless, the trial court was required to consider the factors in ORS 107.137 in awarding custody. See ORS 109.”

In the Matter of Travis, 237 P.3d 868 (Or. Ct. App. 2010).

In Re the Marriage of Maurer, 262 P.3d 1175 (Or. Ct. App. 2011).

Matter of Marriage of Taraghi, 977 P.2d 453 (Or. Ct. App. 1999).

— Or. Rev. Stat. § 107.137(l)(d) — 9 cases

Campbell v. Tardio, 323 P.3d 317 (Or. Ct. App. 2014). “Nonetheless, the trial court was required to consider the factors in ORS 107.137 in awarding custody. See ORS 109.”

In the Matter of Marriage of Holcomb & Holcomb, 888 P.2d 1046 (Or. Ct. App. 1995).

In Matter of Custody of Dtjs-B, 238 P.3d 30 (Or. Ct. App. 2010).

— Or. Rev. Stat. § 107.137(l)(e) — 15 cases

Nice v. Townley, 274 P.3d 227 (Or. Ct. App. 2012). “Although the court did not explicitly determine which parent was M’s primary caregiver, it did state that, before M’s first birthday, mother had been M’s primary parent. Mother appeals, contending that the trial court erred in awarding custody of M to father.”

In Re the Marriage of Kirkpatrick, 273 P.3d 361 (Or. Ct. App. 2012).

In re the Marriage of Gomez, 323 P.3d 537 (Or. Ct. App. 2014).

Campbell v. Tardio, 323 P.3d 317 (Or. Ct. App. 2014). “Nonetheless, the trial court was required to consider the factors in ORS 107.137 in awarding custody. See ORS 109.”

— Or. Rev. Stat. § 107.137(l)(f) — 10 cases

Matter of Marriage of Hamilton-Waller, 123 P.3d 310 (Or. Ct. App. 2005). “See ORS 107.137(1) (primary consideration in custody determinations is best interests of the children).”

Campbell v. Tardio, 323 P.3d 317 (Or. Ct. App. 2014). “Nonetheless, the trial court was required to consider the factors in ORS 107.137 in awarding custody. See ORS 109.”

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