Can I get custody of my child now if he or she is in danger?

As family law attorneys based in Portland, Oregon, we talk to a lot of parents with safety concerns about the other parent’s home. We hear questions about how to get custody quickly, or change a parenting plan quickly if a child is not safe with the other parent.

The court can establish custody or parenting time in divorces, annulments, legal separations, modifications, custody actions, filiation actions, and third party custody cases. If custody is established in these cases at the time of the final hearing, it may take months between the filing of the petition or motion and the court’s final decision. But what do you do if a child is in danger now, and a full evidentiary hearing is months away? Oregon courts provide for an emergency remedy if a child is in immediate danger of harm.

Oregon courts can award emergency custody even if there is no previous custody determination between the parties. ORS 107.097 provides in part that “[a] court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

  • (A) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
  • (B) The court finds, based on the facts presented in the party’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

Oregon courts can also award emergency custody even if there is already a custody judgment between the parties. ORS 107.139 provides in part that “[f]ollowing entry of a judgment, a court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

  • (A) A parent of the child is present in court and presents an affidavit alleging that the child is in immediate danger;
  • (B) The parent has made a good faith effort to confer with the other party regarding the purpose and time of this court appearance; and
  • (C) The court finds by clear and convincing evidence, based on the facts presented in the parent’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

The main difference between the two provisions is that pre-judgment no notice is required; while post-judgment you must make a good faith effort to talk to the other party about the appearance. If the court grants an emergency motion, the non-moving party is entitled to a hearing. The issue at the hearing is limited to whether or not the child was in an immediate danger at the time the emergency order was issued.

If you already have a parenting plan, you need the court’s permission to change it. You cannot simply refuse to return a child in violation of the parenting plan. The consequences for refusing to follow parenting plans are serious, and can include jail time in some situations. The emergency custody statutes do not offer much guidance to the courts, and judges in the same courthouse can have different interpretations of what both “immediate” and “danger” mean. You should immediately consult with an experienced family lay attorney if you believe your child is in danger of harm with the other parent.

About Sean Stephens

By Sean Stephens Google + Sean Stephens is divorce and family law lawyer, and a founding member of Stephens Margolin P.C. He was born in Eugene, Oregon and is a fourth generation Oregonian. Sean Stephens attended the University of Oregon, and graduated in with a Bachelor of Science in Psychology, with a minor in English Literature. His psychology studies emphasized early childhood development. You can find more about Sean Stephens at Stephens Margolin P.C.
This entry was posted in Annulment, Child Custody, Grandparents, Legal Separation, Modification and tagged , , , , . Bookmark the permalink.

14 Responses to Can I get custody of my child now if he or she is in danger?

  1. Lori says:

    My Daughter just came to us from North Carolina leaving and mental abusive relationship. She came home Oct 6 08. She brought her 2 year old son with her. Who she is the main person who cares for this child. She is a wonderful Mother. He is a controlling stalker …and has done nothing but try to control her. He once told her if she cheats he would kill her. And he phones everyone she knows and says she’s cheating on him. There’s so much more. The main thing right now is he filed for temp custody of her son.( they are not married). In North Carolina. And believe he is coming into town this weekend. He never spends time with is son. And is now trying to use him to hurt her. I only hope he does not get away with this . It would be horrible for her son. He is with his mom 24/7 . We are going to Court house tomorrow to file a restraining order on him to stay away from our home. He scares me. He is also a Felon . He robbed a bank years ago and did 5 years. He also drinks a fifth of rum a night on weekdays and 2 on weekend nights. any advise ? Scared Grandma

  2. Scott and Sherri Larsen says:

    We are seeking information and advice for change of residence as non-custodial parents, our daughter is requesting living with us. She is in an environment that is unhealthy, verbally abusive, and it shows with her school grades. The problem is that the custodial parent is under all radar – simple, a wallflower and there is no outward issues except the emotionally behind under achieving and low self-esteemed child. She does all the right stuff to make it appear that everything is all right. We are unable to communicate with this parent due to she begins to verbal assault me, us, on the phone and will not listen without going on a rant.
    Our 10 year old daughter cries prior to having to be returned to the custodial home (every other weekend is the visitation order) and she cries to live with us. Our 10 year old daughter is a vibrant, emotionally expessive child with us and has a great personality but is held back emotionally and physically with the current living conditions. The custody home is moldy, closed in and the child has to sleep with the mother due to grandma living there, and the 25-year-old son living there. The communication between the child and the adults are inappropriate and immature, there is abuse with regards to pulling pants down to moon the child and parent; with no parent reprimand being issued.
    We ask for direction and if we can even challenge the courts for a modification or change of residence for daughter of 10 years old. We don’t have a great sum of money but we both agree that if there is a strong chance to win then there is no reason to not try. The custodial parent is using a low-income law firm that she has had through the hearing 6 years ago. Our daughter needs us, now. She can’t talk with anyone else openly but us, she is terrified of talking about emotional, troubling issue with the custodial parent due to her fearing of being verbally abuse or yelled at.

  3. payday cash says:

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  4. Kati says:

    Hello,

    My sister currently has a parenting plan with her ex-husband that says she has custody of them except for that he gets to have them every other weekend and on some holidays. He has been acting increasingly angry and out of control and has threatened not to bring the kids back after the next visit. Is this enough for a judge to grant emergency full custody?

  5. Yoti Starr says:

    I am not married and the father refused to be on the birth certificate at birth. As far as I know he has not declared paternity. We do not have a written agreed upon schedule for visitation which is, by the way, infrequent and usually just for a few hours at a time since my son who is a year old is still nursing . Father is very hostile towards me and gets very abusive when he gets angry. I want to move away just far enough (within same state) to get away from his tirades and anger. Can he get an “Immediate Danger” Ex Parte Order if he thinks I am leaving town even if he knows I am a good Mom? Or does he have to go through some other process?

    Yoti

  6. admin says:

    Yoti:

    If the father is not on the birth certificate and has not acknowledged paternity, he is not entitled to the same rights as a father that has voluntarily acknowledged paternity or established paternity through some other means. An “immediate danger” order isn’t needed because he doesn’t have any visitation rights. While he would have difficulty stopping a move, there is strategy involved in how you do it. I encourage you to contact our office for a consultation for more detailed advice.

  7. Interesting. We have very similar options/ protections available here in Ohio.

  8. John:

    If you can show a pattern of bad faith stalking order and restraining order filings, and a court construes your facts as causing an immediate danger to your child, then yes. If you don’t already have one, you should get a lawyer well versed in the UCCJEA immediately. Talk to the lawyer about getting an “order of assistance” allowing law enforcement to forcibly retrieve the child.

  9. This is helpful information – thank for sharing.

  10. Sean says:

    I have joint custody with my ex, my son lives with mew and my daughter lives with her. I feel my ex has a severe drinking problem which is emotionaly damaging my chidren because of the inconsistant parenting. She also is leaving my daughter home alone all the time sometimes 2days or more even though my kids are 15 and 17 it worries me. There has been instances where she has been to drunk to pick them up from sporting events and even more than that. I want to file immediate danger papers to get custody of mu kids till she can prove she provide a stable enviroment. What do you suggest?

  11. admin says:

    I recommend calling us or another lawyer immediately. If her actions are placing the children in an immediate danger now, I would advise you to file for emergency custody.

  12. Tesa Styron says:

    My 2 year old and i were kicked out of our home by my husband and her biological father. We struggled very badly and now that we are getting everything together her father wants to threaten me with DHR. He has not bought anything for my child. I have the proof on my phone and facebook that he is an abusive person. he threatens to kill himself and wishes i were dead. I was physically abused for almost 2 years. He has asked me to abort my child when i found out i was pregnant. When My baby was born he was jealous that she got all my attention. He became a rage and i am afraid he will hurt my child and myself. Can he take custody away from me? Can he run with her and it not be kidnapping?

  13. Frances Schoening says:

    What actually constitutes “immediate danger?”

  14. Stephens Margolin says:

    It depends on the Judge. From my experience, some believe the danger must be physical. Others believe it can be emotional.

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