Why Oregon’s Custody Law Is Unconstitutional
Oregon’s custody law, ORS § 107.169(3), has been unconstitutional since its enactment in 1987—and even more clearly so after Troxel v. Granville (2000, click here to read). This statute forbids judges from ordering joint custody unless both parents agree, violating the Fourteenth Amendment by stripping fit parents of legal custodial rights without judicial review. It denies courts the ability to act in the best interest of the child.
Additionally, it burdens the First Amendment by limiting a parent’s right to guide their child’s religious and moral upbringing. Federal courts have repeatedly held that parents have a fundamental constitutional right to raise their children without government interference. This lawsuit seeks to end the categorical prohibition and restore judicial discretion to Oregon’s custody system.
Recent Developments in the Lawsuit (as of March 28, 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
- Oregon’s Attorney General and two assistant AGs are defending the statute and moved to dismiss the case on procedural grounds, citing the Eleventh Amendment and federal abstention doctrines. They argue they have no enforcement role—despite their ongoing defense of the statute.
Plaintiffs’ Response (March 20, 2025):
- Key Arguments: Plaintiffs argue that ORS § 107.169(3) violates the Fourteenth Amendment (due process and equal protection) and the First Amendment (religious freedom). They invoke the Ex Parte Young doctrine, which allows federal courts to enjoin unconstitutional state actions, and argue that federal courts have a duty to review facial challenges to state laws, even in family law contexts.
- The response also cites Supreme Court precedent that parents have a fundamental right to raise their children, and argues that Oregon’s law creates a constitutional crisis by giving one parent unilateral legal authority regardless of judicial findings.
Next Steps:
- Plaintiffs may file a short reply by late March if necessary.
- Oregon’s rebuttal (optional) is expected by April 4, 2025.
This case isn’t just about one family—it’s about reforming a broken system. If successful, this lawsuit will restore balance and discretion in family courts, ensuring children’s best interests come first.
If you or someone you know has been impacted by Oregon’s custody laws, or if you are a parent, attorney, or policymaker who supports family law reform, please email fialvoregon@gmail.com.
Thank you!
— John