As family law lawyers based in Portland, Oregon, potential clients ask us about if they can move out of the family home with the children, or if they can prevent a move. We hear questions like the following:
- Can I move with the children out of the marital home?
- Can the other parent move out with the children without my consent?
- If we haven’t followed the parenting plan in our judgment, can I prevent the other parent from changing the agreed upon plan?
- Can I prevent a move that disrupts the children’s routine?
- Can I move and change the children’s routine?
This post was almost a “divorce myth” post for the sole reason there so much misinformation about moving away from the other parent with children. The answer is that you can move without the other parent’s permission, but Oregon provides two potential remedies to block a move out of the family home, or force a return of the children to the family home.
Prior to a final judgment, as part of a divorce, annulment, legal separation, or third party custody case, Oregon law allows a parent to obtain a temporary order called a “Temporary Protective Order of Restraint” The order is temporary because it is only in effect during a case. The statue, ORS 107.097, allows you to obtain a court order that prevents the other party from:
- Changing the child’s usual place of residence;
- Interfering with the present placement and daily schedule of the child;
- Hiding or secreting the child from the other party;
- Interfering with the other party’s usual contact and parenting time with the child;
- Leaving the state with the child without the written permission of the other party or the permission of the court; or
- In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.
With a few exceptions, if the other parent moves out of the house without your permission, you can use ORS 107.097 to force the children’s return to the home, and force a return to your pre-move level of contact with the kids.
During a modification of custody or parenting time (after entry of a final judgment), the court allows for entry of a “Status Quo Order” that is very similar to the “Temporary Protective Order of Restraint.” ORS 107.138 allows you to obtain a “Status Quo Order” in a custody modification action that prevents the other parent from:
- Changing the child’s usual place of residence;
- Interfering with the present placement and daily schedule of the child;
- Hiding or secreting the child from the other party;
- Interfering with the other party’s usual contact and parenting time with the child;
- Leaving the state with the child without the written permission of the other party or the permission of the court; or
- In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.
To obtain a status quo order, you must:
- Notify the other party;
- Give the other party an opportunity to contest issuance of the order;
- File an affidavit that sets forth with specificity the information required by ORS 109.767 and the person with whom the child has lived during the preceding year and the child’s current schedule, daily routine and usual place of residence.
- Give the other party 21 days notice before the date set for the hearing.
For both a “”Temporary Protective Order of Restraint” and a “Status Quo Order,” a “Child’s usual place of residence” means the place where the child is living at the time the motion for the temporary order is filed and has lived continuously for a period of three consecutive months, excluding any periods of time during which the noncustodial parent did exercise, or would otherwise have exercised, parenting time. A“Parent’s usual contact and parenting time,” “present placement and daily schedule of the child” and “current schedule and daily routine of the child” mean the contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed.
If you are thinking of moving out of the family home with the children without consent, or the other parent moves out of the family home without your consent, you should consult with a family law lawyer to discuss the legal effect of the move in light of ORS 107.097 and ORS 107.138. The lawyers at Stephens & Margolin can help you with how these laws apply to your particular situation.
I was thrown out og my home with minor child and now my husband is using the atatus quo to get her back he filed it 1 month befor he through me out, and waits 1 month to have me served
if i ordered the status quo to keep the other parent from secreting.. i can no longer afford to live alone.. am i able to move with his consent?
i filed a restraining order and had the father removed from the home. but my son and i need a different place to live. the home is really not suitable for occupancy. black mold rotten floors walls and the roof is caving in. can i get a safer place for my son and i without it blowing up in my face.
do i need to file something with my divorce papers to keep the father from making our son move back to the awful house. our son wants to move out of town. can i be forced to live in the same town?
Julie:
The court can’t make you live in the same town, but can keep a child in his usual place of residence during a case.
Julie:
If the court gave you custody under the restraining order, it may, on it’s face, allow you to move. There are good reasons to move and not to move during a case, involving both safety and strategy. I’d need to look at a copy of the restraining order to give you specific advice.
If I have a protective order of restraint and my ex is now in washington state and hiding the children, are there actual consequences that she is looking at for this?
Dear Brandon:
There are very serious consequences for failing to comply with a temporary protective order of restraint, if you present the violations properly before the court. If she is properly served with the order, and there is no competing order that trumps your order, like a domestic violence restraining order, most judges would require the return of the children. If you want further analysis or specific advice, I encourage you to call us.
My understanding is if she was served Tuesday, the 19th. She has 30 days to respond? If she fights it then the courts will set a trial date usually a few months out? Then its up to a judge to decide where they should stay, that doesnt make sense when a Judge has already said they need to be returned home. I plan to call but I need to wait for my new phone to arrive as I lost my current one.
This is helpful information – thanks for sharing.