There has been a rise in the number of dowry harassment cases filed against non-residen Indians (NRIs).  India has been used as a haven for ex-wives who are disatisfied with the result of their United States divorce case.  Once in India they utilize dowry laws which are peculiar to the Indian legal system and do not have a US counterpart. 

Spouses who are NRIs or are divorcing NRIs should discuss their case with a competent attorney who understands these complex international law issues.

If paternity was not established, then the father does not have any legal rights to the child until paternity is established.

The best way to address this issue is to file a petition for custody and obtain a status quo order pursuant to ORS 107.097 which will maintain the child’s “usual place of residence,” “present placement and daily schedule,”party’s usual contact and parenting time,” and “current schedule and daily routine of the child.” This will prevent the other parent from taking the child and running. You should also do your best to document the other parent’s statements.

As part of any life insurance provision in a judgment, a clause is always added stating that a “constructive trust” will be established over the life insurance proceeds. On April 15, 2009, the Oregon Court of Appeals ruled on this issue in the case of Tupper v. Roan v. Tupper.

Jerry Tupper and Heather Tupper divorced in 2004. As part of the divorce, Jerry was required to provide a life insurance policy in the amount of $100,000 to secure his child support obligation. In addition, the judgment stated that a constructive trust would be established over the proceeds of any life insurance policy if a party designates a different beneficiary on the policy.

Jerry started living with Danette Roan shortly after the divorce and designated her as the beneficiary on his life insurance policy in direct violation of the terms of the judgment. Jerry died in 2006 and the proceeds of his policy went to Danette. Danette received $600,000 and no money went to Heather to secure Jerry’s child support obligation.

Heather sued Danette claiming that she improperly kept $100,000 in violation of the terms of the judgment. Danette’s response was that she was not aware of Jerry’s obligation to maintain a life insurance policy for child support before he died. Danette further asserted that the court could not impose a constructive trust over the $100,000 because Heather could not prove that Jerry transferred property to Danette that rightfully belonged to Heather and that Danette either knew or should have know of that wrongful conduct.

The court of appeals ruled in Danette’s favor, holding that since Jerry created the life insurance policy after the divorce, Heather did not have an interest in it at the time of the divorce and it was therefore never her property.

For clients, this case creates a difficult situation. Unless a party has a life insurance policy in place at the time of the divorce, the other spouse will likely have a very difficult time obtaining the funds from that policy unless the other spouse follows the requirement to maintain the beneficiary designation required by the terms of the judgment.

If you have questions about life insurance provisions in divorce, custody, or other support situations, the lawyers at Stephens Margolin P.C. would be happy to answer your questions. The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A136095.htm.

1. Know your parenting plan. I am always surprised by how many parents don’t know what the plan says or have a copy handy.  If you don’t have a copy of yours, get one and save it.
2. Follow the parenting plan.  Parenting plans are orders of the court. If you have a problem with the plan, seek to modify it rather than disregard it. 
3. Keep clear channels of communication open. People hire lawyers because they can’t work out a problem on their own with the other parent. Don’t hire a lawyer because you haven’t tried to discuss the dispute with the other parent. 
4. Consider mediation. If a dispute arises around the plan and you can’t work it out directly with the other parent, consider using county or private mediation.
5. Put the children first.  I believe that if all parents repeated the mantra “put the children first” it would substantially reduce the number of enforcement motions we file.  Pay attention to their emotional needs. Don’t make them be a messenger between households.
6. Be reasonable and flexible.  Is the other parent being 10 minutes late at an exchange really worth getting back into court? Traffic and life happens.
7. Consider using communication software.  We previously blogged (see post here) about the parenting time software called OurFamilyWizard. If you have a hard time communicating about the parenting plan, this program may help.
8. Manage your own anger. If you can’t let go of anger from the divorce, you are going to have trouble putting the kids first. Consider getting counseling.  When you are relaxed, the kids can relax.  Don’t be so angry that the kids have to parent you!
9. Allow the kids to love both parents.You are going to have separate households. Kids need  a supportive environment to deal with the reality of two households.  Speak positively of your ex around the kids.  Be supportive of their relationship with the other parent. Create an environment free from inter-parental hostility.
10. Get input from the kids about the schedule and share it with the other parent.  Older children should be able to  to give input about the parenting schedule.  This is their life you are organizing.  Listening, sharing the information, and cooperatively making adjustments can avoid unnecessary litigation over a broken parenting plan.

The legislature created an enforcement remedy specifically for parenting time violations.  ORS 107.434 provides for an enforcement remedy specifically for parenting plan violations, as opposed to the general remedy of contempt.   Expedited parenting time motions have some potential benefits over contempt actions:

• The burden of proof is lower than for contempt, making it easier to prove close cases.
• You can generally get in front of  a judge faster than with contempt. The court must hold a hearing within 45 days unless the parties agree otherwise.
• There are unique remedies designed specifically for parenting plan violations.

In addition to any other remedy the court may impose to enforce the provisions of a judgment relating to the parenting plan, the court may:

• Modify the provisions relating to the parenting plan by (1) Specifying a detailed parenting time schedule; (2)Imposing additional terms and conditions on the existing parenting time schedule; or (3) Ordering additional parenting time, in the best interests of the child, to compensate for wrongful deprivation of parenting time;
• Order the party who is violating the parenting plan provisions to post bond or security;
• Order either or both parties to attend counseling or educational sessions that focus on the impact of violation of the parenting plan on children;
• Award the prevailing party expenses, including, but not limited to, attorney fees, filing fees and court costs, incurred in enforcing the party’s parenting plan;
• Terminate, suspend or modify spousal support;
• Terminate, suspend or modify child support as provided in ORS 107.431; or
• Schedule a hearing for modification of custody as provided in ORS 107.135 (11).

Talk to an experienced family law lawyer about what enforcement remedy may be best for your situation, or if you are served an enforcement motion.  

For the non-custodial parent, law enforcement won’t help.  The non-custodial parent can file a motion and set a hearing for remedial contempt or for enforcement of parenting time, but weeks may pass before the court actually hears the matter.

Custodial parents can get law enforcement to retrieve a child, but they need a special order from the court called an “Order of Assistance.”  ORS 107.437 allows a person entitled to custody parent to appear ex parte in a county:

1. In which a child is located if the person is entitled to the physical custody of the child under a valid and current order issued in this state; or
2. In which a valid and current foreign custody order has been filed with a petition.

A certified copy of the court order must be presented with the motion or petition. If the court finds that the applicant is entitled to physical custody under a valid and current order, and that the child is being withheld in substantial violation of the order the court may issue an order directing local law enforcement to use any reasonable means and force to deliver the child as directed by the court, including directing forcible entry into specified premises.

The Order of Assistance is a heavy handed remedy, and should not be used lightly, considering the impact on a child of being forcibly retrieved by police.  However, it will get you the help of law enforcement in retrieving a child.

Private attorneys and parties can bring “remedial” contempt actions for willful parenting plan violations.  A remedial action is the court using its authority to remedy, or fix the non-compliance. A broad range of sanctions are available to get a parent to comply with the parenting plan.  ORS 33.105 specifies what sanctions are available in a contempt action.  Unless there is a contrary statute, the court can impose one or more of the following remedial sanctions:

1. Payment of a sum of money sufficient to compensate a party for loss, injury or costs suffered by the party as the result of a contempt of court.
2. Confinement for so long as the contempt continues, or six months, whichever is the shorter period.
3. An amount not to exceed $500 or one percent of the defendant’s annual gross income, whichever is greater, for each day the contempt of court continues. The sanction imposed under this paragraph may be imposed as a fine or to compensate a party for the effects of the continuing contempt.
4. An order designed to insure compliance with a prior order of the court, including probation.
5. Payment of all or part of any attorney fees incurred by a party as the result of a contempt of court.
6. A sanction other than the sanctions specified in paragraphs (a) to (e) of this subsection if the court determines that the sanction would be an effective remedy for the contempt.

Basically the court has the power to craft any remedy, including jail, to encourage compliance with a court order. 

Liability for contempt can extend even beyond the parties. Third parties that interfere with parenting time orders may be held accountable through contempt.

What to do to avoid a contempt action? When your case is complete, get and retain a copy of your parenting plan.  Read it.  Know what it says.  If you can, communicate with the other parent about parenting time to make sure you are on the same page.  If you want to change the parenting plan and the other parent agrees, confirm the agreement in writing or email.  Don’t unilaterally disregard the parenting plan. What to do if you are served with a contempt action?  Talk to an experienced family law lawyer and get help.  What to do if the other parent won’t follow the parenting plan? Talk to an experienced family law lawyer about what remedies you may have.