The Oregon Divorce Blog » Parenting Time / Visitation

Parenting time: Is sharing the “nest” the best?

C. Sean Stephens — Tue, 22 Nov 2011 17:47:39 +0000

Divorce can prompt parents to consider a variety of options when it comes to caring for their children. As divorce attorneys, we regularly see parents weigh the pros and cons of different parenting time arrangements in order to find the option that is the least disruptive for their children. In an effort to create a stable home environment for children, some parents are turning to an alternative approach that may raise a few eyebrows: Nesting. Instead of requiring the children to shuttle back and forth between two residences in order to spend time with each parent, nesting allows the children to remain put while the parents move in and out of the house in accordance with their parenting times. At the end of the parenting time, one parent will leave the residence to make room for the other parent. Stability is a clear advantage of nesting. Because they always remain in the same house, the children sleep in the same bed every night. They have the same walk home from school each day. They play with the same neighborhood children each weekend. Nesting allows the children to stick to a comfortable and familiar schedule, eliminating the need for the children to lug suitcases back and forth between two houses. While nesting may be the best option for some parents and their children, the drawbacks can make nesting off limits for others. Nesting would require the parents to maintain three total residences—the main “nest” house, plus the houses each parent retires to at the end of his or her parenting time. The additional housing costs could make nesting impossible for many. Alternately, nesting parents could maintain only two residences by sharing the same house away from parenting time in the same manner as they share the “nest” house. However, some parents may have a difficult time sharing all their space with a former spouse or partner. Remarried parents might not want to drag their new spouse between two houses as well, especially if the new spouse also has children. Along the same line, your new wife may not want to sleep in the same room where your ex-wife sleeps with her new husband. And sharing living spaces can lead to some age-old roommate squabbles, like whose turn is it to buy toilet paper. Nesting will likely never be the option the majority of divorcing parents choose, but it does work for some people. As with any parenting time arrangement, it is important for both parents to consider all options carefully.

Custody Evaluations In Divorce and Parenting Time Cases – An Overview

C. Sean Stephens — Thu, 21 Jul 2011 23:55:25 +0000

Many times, parents come to our office with custody and parenting time arrangements already resolved. Other times, parenting time issues can be resolved by the parties in county mediation. So what do you do if you can’ t work a plan out on your own but would still like to resolve the case short of trial? In our experience, many custody and parenting cases settle after the parties participate in a custody study, even when county mediation failed. This post is to give an overview of the evaluation process.

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:

The Intake. Many evaluators have a lengthy initial interview to get historical information, and determine each parent’s level of involvement with the child.
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.
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.
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.

Facebook Phenomenon: Phony Facebook Dads.

C. Sean Stephens — Fri, 17 Jun 2011 18:46:48 +0000

Are the assumptions you make from Facebook about someone’s parenting accurate? Many times no, says an article published on Macleans.ca captioned “Ex-Wife’s rail about phony Facebook dads.” The article is an interesting read on how misleading images of parental involvement on Facebook can pour salt on post separation wounds.

I am frequently surprised as a divorce lawyer how little thought many parents put into Facebook posts during or after court cases. When going through a divorce or custody case it is very important to be careful about what is posted on social networking sites, in Twitter posts, or in emails and letters sent to the other party. All of these can be used against the poster/sender in court. There’s no advantage to having an irritated ex, or having your position compromised in court because you over-shared through social media.

Having An Attorney Appointed For Your Child During Divorce

C. Sean Stephens — Thu, 24 Mar 2011 19:45:35 +0000

As Portland Oregon divorce and family law lawyers, we get a lot of questions from clients about what voice children have in deciding where they live or a schedule. We previously blogged about a common myth that children could decide where they live during custody and parenting time disputes, and it turned into one of our most popular posts. This post is to expand on one way that minor children can have a voice in a divorce or custody case by having their own representation.

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.

New Case Law – Third Party Visitation

Daniel Margolin — Wed, 23 Feb 2011 16:24:20 +0000

On February 23, 2011, the Oregon Court of Appeals issued an opinion regarding third party visitation claims. In Digby and Meshishnek, the nonparents, who had acted as foster parents for the children, were awarded visitation with two minor children by the trial court. They had asked for visitation due to having a “child-parent relationship” as set forth in ORS 109.119(10)(a). The requirements for demonstrating such a relationship are: 1. That the relationship existed within the six months preceding filing of the petition; 2. That the party making the claim lived in the same household as the child or had physical custody of the child; 3. That the party supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline; and 4. That the relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. The claim cannot be made by a nonrelated foster parent unless the relationship exceeded 12 months. A court must find that the nonparents have proved the “child-parent relationship” by a preponderance of the evidence.

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

Guidelines For Parents After Divorce

C. Sean Stephens — Tue, 21 Dec 2010 18:55:09 +0000

How you act after divorce has a significant influence on the emotional adjustment of your children. After 16 years of helping Oregon parents during and after divorce, I have seen divorced parents behave in ways both helpful and harmful to the kids. The following short list are ideas on how to have healthy contact between both parents and the children in your restructured family.

Put your child’s welfare first. Put meeting your kid’s emotional needs first over yours. Make sure that, as much as possible, they have an opportunity to develop normally under the circumstances.
It takes two to parent. Absent unusual circumstances, contact with both parents is necessary and beneficial to your child’s emotional development and welfare.
Be supportive of the other parent with your kids. Time spent with your children should be pleasant for the children, and for both parents. You should help your children maintain a positive relationship with each parent. Don’t act in a way when you have the children that would damage the other parent’s relationship with them.
Be consistent and communicate. Keep to your schedule and inform the other parent when you cannot keep an appointment. The children may view the failure to keep a commitment to be with them as rejection.
Be flexible. Despite of what I said in #4 above, you may need to adjust the scheduled time with your children occasionally according to their age, health, and interests.

These guidelines won’t solve every problem that arises, but if more parents followed them, family law lawyers would have less work. In the event of a disagreement with the other parent, thinking about this list before you act will likely help your kids.

Oregon’s Parenting Policy

C. Sean Stephens — Sun, 07 Feb 2010 22:35:10 +0000

When consulting with Oregon parents about parenting time and parenting plans, I get lots of questions about what kind of parenting time a judge might order. There is a lot of misinformation about what Judges do in setting or modifying parenting plans. A common concern I hear, even from very involved parents, is about loosing rights with the kids, or having very limited parenting time with their children. This has been made worse by some Oregon counties having restricted parenting plans posted as examples on their websites. It is actually the policy of the State of Oregon to provide substantial parenting time to good parents. ORS 107.101 provides that it is the policy of this state to:

(1) Assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child;

(2) Encourage such parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage;

(3) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, if necessary;

(4) Grant parents and courts the widest discretion in developing a parenting plan; and

(5) Consider the best interests of the child and the safety of the parties in developing a parenting plan.

Involved good parents should get substantial time with the children. If you have been a good involved parent and your ex is trying to limit your time, you should talk to an experienced family law attorney.

Can a parent “take the child and run?”

Daniel Margolin — Thu, 19 Nov 2009 18:34:48 +0000

If a custody matter has not yet been filed, then under Oregon law, the parent with whom the child was living at the time paternity of the child was determined is determined to have legal custody of the child. ORS 109.175 provides: (1) If paternity of a child born out of wedlock is established pursuant to a petition filed under ORS 109.125 or an order or judgment entered pursuant to ORS 109.124 to 109.230 or ORS 416.400 to 416.465, or if paternity is established by the filing of a voluntary acknowledgment of paternity as provided by ORS 109.070 (1)(e), the parent with physical custody at the time of filing of the petition or the notice under ORS 416.415, or the parent with physical custody at the time of the filing of the voluntary acknowledgment of paternity, has sole legal custody until a court specifically orders otherwise.

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.

Top 10 Ways To Get Along And Avoid An Enforcement Action

C. Sean Stephens — Tue, 10 Mar 2009 04:39:37 +0000

As a Portland, Oregon based family law firm we field a lot of questions about problems with parenting plans. We hear questions about parents not returning the children on time, about sharing transportation after a parent moves a short distance, and about whether the kids have to see the other parent if they don’t want to. So why not just file an enforcement action in court? We previously blogged about the enforcement remedies of contempt, enforcement of parenting time, and orders of assistance. While there are good reasons to file an enforcement action, and potential defenses, the best way to “win” is to avoid enforcement litigation altogether. As family law lawyers, we offer the following 10 tips on getting along and avoiding the need for enforcement litigation.

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.
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.
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.
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.
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.
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.
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.
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!
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.
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.

Expedited Parenting Time Enforcement

C. Sean Stephens — Mon, 12 Jan 2009 04:21:38 +0000

We previously blogged about contempt of court as a tool for parenting plan violations. Contempt is a broad remedy for violations of court orders, but is has some shortcomings for enforcing parenting plan violations. The burden of proof is higher than for most types of family law actions, making close cases much harder to prove. It can take many weeks to get in front of a judge. While contempt remedies are powerful, they are not narrowly tailored to fixing parenting time issues.

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.