Why Oregon’s Custody Law Is Unconstitutional
Oregon’s custody law, ORS § 107.169(3), has been unconstitutional on its face since it was written in 1987, and even more so after the U.S. Supreme Court’s ruling in Troxel v. Granville (2000, click here to read). This Oregon law prevents judges from ordering joint custody unless both parents explicitly agree, which violates the Fourteenth Amendment’s guarantee of due process and equal protection. It strips one fit parent of all legal custodial rights without any judicial discretion to consider the child’s best interests.
Additionally, the law burdens the First Amendment rights of both parents and children by limiting a fit parent’s ability to make decisions about the child’s religious upbringing, education, and healthcare. The Supreme Court has repeatedly affirmed that fit parents have a fundamental constitutional right to be involved in raising their children. This case challenges Oregon’s law as an unconstitutional infringement on those rights and seeks to restore judicial discretion in custody decisions.
Recent Developments in the Lawsuit (as of March 7, 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
Oregon’s Motion to Dismiss (MTD):
- Filed: February 27, 2025
- The State of Oregon filed an amended MTD seeking to dismiss the case on procedural grounds, including claims related to the Eleventh Amendment and the Younger abstention doctrine. Oregon argues that state officials, including the Attorney General, cannot be sued and that federal courts should not interfere with state family law matters.
Plaintiffs’ Response:
- Key Arguments: The response argues that Oregon’s MTD fails to address the core constitutional issues at stake. It emphasizes that ORS § 107.169(3) violates both the First and Fourteenth Amendments by stripping one fit parent of all custodial rights without judicial discretion. The response also counters Oregon’s sovereign immunity claims by invoking the Ex Parte Young doctrine, which allows federal courts to hear cases against state officials enforcing unconstitutional laws.
Next Steps:
- Plaintiffs’ reply to Oregon’s MTD is due in late March.
- Oregon’s rebuttal is expected by April 4, 2025.
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