Why Oregon’s Custody Law Is Unconstitutional
Oregon’s custody law, ORS § 107.169(3), is fundamentally unconstitutional. Enacted in 1987, it prohibits judges from awarding joint custody unless both parents agree—stripping one fit parent of all legal custodial rights by default. This blanket restriction eliminates judicial discretion entirely and violates long-established constitutional principles. (Let’s ask ourselves, as Americans: if two Oregonian parents are divorcing, then how likely are they to agree on specific, detailed joint custody terms out of court? They’re divorcing — they’re not likely to agree on anything! ORS 107.169(3) forces them into a custody battle, because Oregon Courts cannot order joint custody.
In fact, the U.S. Supreme Court affirmed parental rights as fundamental just a few years earlier in Parham v. J.R. (1979, read in new tab here), where the Court emphasized that “our constitutional system long ago rejected any notion that a child is the mere creature of the state.” Yet despite this precedent, Oregon enacted a statute that effectively allows one parent to veto the other’s legal parental status—without any judicial review of what’s best for the child.
Since then, the law has caused irreparable harm to countless Oregon families. In Troxel v. Granville (2000, read in new tab here), the Supreme Court reiterated that fit parents have a fundamental right to make decisions regarding their children’s care, custody, and control. This case was widely understood as a rebuke to Oregon’s—and other states’—efforts to undermine those rights through rigid, one-size-fits-all statutes. Yet Oregon’s lawmakers did nothing.
ORS 107.169(3) is not only outdated—it’s unconstitutional on its face. It deprives fit parents of equal protection and due process under the Fourteenth Amendment, and violates the First Amendment by restricting religious and moral decision-making. The law also perpetuates gender bias by disproportionately impacting fathers and incentivizing conflict rather than resolution.
For over a century, across no less than ten rulings, the United States Supreme Court has consistently affirmed that parents have a fundamental constitutional right to direct the upbringing of their children. In Meyer v. Nebraska (1923, read in new tab here), the Court held that the 14th Amendment protects the right “to marry, establish a home and bring up children.” Just two years later, in Pierce v. Society of Sisters (1925, read in new tab here), the Court reinforced that “the child is not the mere creature of the State,” affirming that parents—not government—hold the primary role in shaping a child’s future.
Oregon’s law, enacted in 1987, flies in the face of nearly 100 years of this clear constitutional doctrine.
Recent Developments in the Lawsuit (as of June 3rd, 2025)
Case Name: Fial et al. v. Oregon (Case No. 3:24-CV-2157-IM)
Court: U.S. District Court for the District of Oregon
- March 20, 2025: Plaintiffs filed a comprehensive federal response to Oregon’s Motion to Dismiss (MTD)[the lawsuit], ECF #16, detailing how ORS § 107.169(3) violates both the First and Fourteenth Amendments of the U.S. Constitution.
- The response — at 45 pages — argues that the law unconstitutionally removes judicial discretion and deprives fit parents of legal rights, citing over a century years of Supreme Court precedent. The plaintiffs’ March 20 filing highlights that Oregon’s custody statute conflicts with nearly a century of Supreme Court precedent, dating back to Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)—two foundational cases establishing that parental rights are protected by the 14th Amendment.
- May 2025: Plaintiff’s filed a Motion for Summary Judgment (MSJ), requesting that the Court rule immediately.
- May 2025: The court stayed Plaintiff’s Motion for Summary Judgment (MSJ) in order to rule on Oregon’s request (Motion to Dismiss). The Court noted that if it denies the MTD, the State of Oregon has 21-days to respond to Plaintiff’s MSJ.
- An initial ruling could come as early as this summer, or as late as 2026.
- Any dates for hearings and/or oral arguments will be posted to this website.
Constitutional Crisis: Oregon’s Family Law System
Oregon’s approach to custody isn’t just flawed—it has created a constitutional crisis. Thousands of parents have been forced to litigate, not over what’s best for their child, but over whether they’ll be allowed to have any legal say at all. The state’s legal framework has led to a system where courtroom strategy often outweighs a child’s emotional and developmental needs.
As stated in our federal filing:
“Dictatorial control does not resolve conflict; it exacerbates it. The law has done nothing to reduce disputes; instead, it has incentivized prolonged litigation, parental alienation, and courtroom battles that only benefit attorneys, not families.”
The lawsuit challenges Oregon’s refusal to allow courts to evaluate custody disputes based on evidence and the best interests of the child. As Americans, we must insist that state law respect our fundamental rights and family integrity.
What We’re Asking the Court
We are asking the U.S. District Court for the District of Oregon to:
- Declare ORS § 107.169(3) unconstitutional under the First and Fourteenth Amendments.
- Issue an injunction stopping Oregon from enforcing this law against us and other similarly situated families.
- Restore judicial discretion in custody decisions so that Oregon courts again prioritize the best interests of the child—not the veto power of one parent.
This case isn’t just about my family—it’s about advocating for fairer custody laws for all Oregonians. If successful, this lawsuit could restore the ability of judges to order joint custody based on what’s truly in the best interests of the child, without being blocked by an outdated and unfair law.
If you or someone you know has been impacted by Oregon’s custody laws, or if you have experience in constitutional or family law, please reach out at fialvoregon@gmail.com . Your support and insight could make a significant difference.
Thank you!
— John