The entire opinion can be found here.

To determine who is the primary caregiver, the court looks at who has met the child’s basic needs, including feeding the child, caring for the child when he is sick, taking the child to the doctor, disciplining the child, and many other types of interactions. The court of appeals found that the trial court had not properly considered the evidence showing that the mother had been the child’s primary caregiver for the majority of his life, and remanded the case to the trial court for a new custody determination.

The entire opinion can be found here.

In a custody evaluation, an expert (usually either a social worker or a psychologist) investigates the facts of case and generates a report containing custody and parenting time recommendations for use in settlement or trial. The evaluator usually has broad power and may require the parties to provide releases of information so the evaluator can talk to other counselors, medical providers, or therapists. The evaluator may also require the parties undergo psychological tests and drug testing if appropriate. The goal is to gather as much information as possible, and make a recommendation to the court that is in the child’s best interests.

Some general things to expect during the process:

1. The Intake. Many evaluators have a lengthy initial interview to get historical information, and determine each parent’s level of involvement with the child.
2. Child Visit. The evaluator will meet at least once with each parent and the child to watch how you interact. This is an important element to the study, and they are looking to see if parents actively parent, set appropriate boundaries, dicipline appropriately, and watch the child’s reaction.
3. Collateral Contacts. The evaluator will likely ask for a list of persons you think they should talk to about your parenting. Usually evaluators give greatest weight to information provided by independent contacts, like teachres, daycare providers, and other counselors.
4. Psychological Evaluations. If appropriate, the evaluator may ask parents to take psychological tests, such as the MMPI-2TM.

While it can be a difficult process to go through, many times parents settle outside of court after seeing the report. If the report doesn’t settle the case, it can make the trial more streamlined, because the evaluator is allowed to rely on the information gathered from collateral sources when testifying, meaning less witnesses need to be called. While the court does not have to adopt the recommendations of a custody evaluator, the recommendations usually hold considerable weight with a Judge.

How a parent interacts with an evaluator can be a critical element of the case. In my 17 years of divorce experience in Oregon, I have seen good parents do poorly in the evaluation process because they (1) did not know how to communicate effectively with the evaluator, (2) did not understand fully what the evaluator was trying to do, or (3) let their negative emotions influence their responses to the evaluator. Every client participating in a custody study should talk with their lawyer about the process, what to expect, what the evaluator wants, and the best ways to interact with the evaluator.

The lawyers at Stephens Margolin PC have extensive experience advising clients about custody evaluations.

To establish an “ongoing personal relationship” under ORS 109.119, the third party must show that they have established ” [a] relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.”

The same presumption that the legal parent is acting in the best interests of the child applies, even if the decision is to cut off a wholesome and healthy relationship. If the legal parent makes the decision to cut off contact with a child over the objection of a grandparent or other third party, the court considers the following nonexclusive list of factors in determining if the presumption has been rebutted.

1. The petitioner or intervenor is or recently has been the child’s primary caretaker;
2. Circumstances detrimental to the child exist if relief is denied;
3. The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;
4. Granting relief would not substantially interfere with the custodial relationship; or
5. The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

The rebuttal factors to establish visitation and contact rights are easier to prove than the rebuttal factors to establish custody or guardianship.

Third party cases can be complex, and counter-intuitive, because the court’s initial consideration is not what is in a child’s best interests, but the legal rights of the legal parent. If you are faced with a lawsuit requesting visitation and contact with your child by a grandparent or third party, or are interested in getting visitation or contact with a child not legally yours, you should consult with an experienced family law attorney. The lawyers at Stephens Margolin PC have extensive experience in third party custody cases.

ORS 107.425(6) provides that the court can on it’s own motion or on the motion of a party , appoint counsel for children. If a party asks, the appointment is discretionary. If the child asks, the court must appoint a lawyer.   Some counties have local rules that further explain the process. For example, in Multnomah County, the Supplemental Local Rule describes the role of the children’s attorney as “”[t}o the extent possible, appointed counsel will represent their clients’ legal interests in obtaining a secure, stable home life and a balanced relationship with both parents and will be answerable only to their client and to the Court. ” The role is to give a child a voice in a proceeding when one parent, or both, may disagree with what the child wants.  Many times in our experience, a child’s attorney can help settle a case outside of court that otherwise would have been resolved in a courtroom.

If you believe your child is caught in the middle, or needs an independent voice in a case, talk to your attorney about having an attorney appointed to represent your child.

The lawyers at Stephens Margolin PC have represented children in divorce cases, and are knowledgeable about the appointment process.

This is an interesting issue as it is rarely the case that a servicemember who has been depolyed has done anything else to justify a change in custody.  Such a change could last the remainder of the child’s life unless that solider can prove that switching custody back would be in the child’s best interest upon returning from duty. 

There are still some actions that servicemembers whom are about to be deployed can take under Oregon law, such as a temporary delegation of parental authority.

The trial court awarded visitation to them based upon the grounds that they had established an “ongoing personal relationship” with the children as described by ORS 109.119(10)(e).  To prove such a relationship a party must prove: 1.  That the relationship lasted at least one year;  and 2.  That it was based on interaction, companionship, interplay and mutuality.  This is, obviously, a much less strict test than the test required to prove a “child-parent relationship.”  A court must find that the nonparents have proved the “ongoing personal relationship” by clear and convincing evidence.

The court of appeals held that the trial court erred in awarding visitation on the basis of an ongoing personal relationship.  The statutes defining “child-parent” relationship and “ongoing personal relationship” have
separate requirements that must be shown by different burdens of proof, thus, an ongoing personal relationship is not “lesser included” within an allegation of a child-parent relationship. 

Unfortunately, it is common for family law practicioners to gloss over the very technical legal aspects of claims.  This case demonstrates the importance of having very qualified legal counsel who know the intricacies of pleading technicalities.   The lawyers of Stephens Margolin P.C.  have this level of technical expertise and are able to take cases from the trial court through the appellate courts.

The full opinion can be found here:  http://www.publications.ojd.state.or.us/A139448.htm

• The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
• 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.
• The party requesting an order under this subsection provides the court with telephone numbers where the party can be reached at any time during the day and a contact address.

Once a general judgment of divorce or a custody judgment as been entered, you have to proceed under ORS 107.139, the post judgment emergency custody statute.  Following entry of a judgment, a court may enter ex parte a temporary order providing for the custody of or parenting with a chid if:

• A parent of the child is present in court and presents an affidavit alleging that the child is in immediate danger;
• The parent has made a good faith effort to confer with the other party regarding the purpose and time of this court appearance; and
• The court finds by clear and convincing evidence, based on the facts presented in the parents 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 party requesting an order under this subsection provides the court with telephone numbers where the party can be reached at any time during the day and a contact address.

Notice to the other parent  is required for post judgment emergency custody orders, but not for pre-judgment orders. Post judgment, you have to at the same time file to modify the existing judgment.  The burden of proof is higher post judgment than pre-judgment.

So what is an “immediate danger?” The statute doesn’t define it.  There are differences of oppinion between judges in the same county on what constitutes an immediate danger.  How a motion is presented to the court and what support and documentation you give the court to support your emergency custody motion are critical to success.  If you believe your child is in an “immediate danger” in the other parent’s care or custody, you should immediately talk to an experienced family law attorney about emergency relief.

The appeal was filed by father due to a trial court ruling awarding sole custody to mother.  Father appealed based upon the fact that the custody evaluation was in his favor and that he had recently been the primary parent.  The court of appeals upheld the trial court ruling that mother should be awarded sole custody.  The court based its holding on a reliance on the trial court’s credibility findings, a review of the factors set forth in ORS 107.137, and the following:

“Here, the trial court concluded that most of the factors weighed fairly evenly between the parties, finding that both parents are fit and have close emotional ties with the children, that each parent has strengths and weaknesses, that each has “an exaggerated view” of the other’s interpersonal style, and that both parties had “unnecessarily exposed the children to issues in the divorce.”  The court found that, although father had been the primary parent for the past two years, mother had been the primary parent before that.  The court further found that father had “unreasonably interfered with [mother's] parenting time with these children” and that father’s interference “was one of the primary reasons” for awarding custody to mother.  The court explained that, although being most recently the primary parent weighed slightly in father’s favor, father had excluded mother from parenting, and mother was more willing and able to facilitate and encourage a close relationship between the children and father.”

Custody decisions are always very fact intestive, and, in cases such as these, can turn on a very small difference between the parents.  It is interesting in thie case that the custody evaluator did not testify and I wonder how much her actual testimony would have assisted father.  It is crucial for a parent to have a competent attorney who can produce the required evidence to provide the trial court with a basis for ruling in that parent’s favor.