Daniel Margolin was quoted in an Oregonian article concerning the Harmon divorce today. The article can be read here:

http://www.oregonlive.com/portland/index.ssf/2010/07/kaine_horman_asks_court_to_hav.html

The Oregon Court of Appeals in Martinez and Martinez released an opinion on March 10, 2010 relating to the definition of abuse in a restraining order case.  One of the prima facie elements necessary to obtain a restraining order (FAPA order) is proof that a party has been “a victim of abuse committed by the respondent wihtin 180 days preceding the filing of the petition[.]“  ORS 107.718(1) and ORS 107.710(1).  The court of appeals agreed with the appellant that the trial court was incorrect in finding that respondent committed abuse against petitioner during the 180 days preceding the filing of the petition.

The ruling is not that interesting and is very short.  What is interesting is that the court refused to divulge the facts of the case or the reasoning that went into its ruling.  Instead the court quoted Chief Judge Herbert Schwab as follows:  “The incidents which give rise to child custody litigation are never pleasant, and often sordid.  Such litigation tends to emphasize human weaknesses.  While the published opinion of an appellate court in a custody case is rarely a ‘best seller,’ it is nevertheless a public record which can in later years come to the attention of the children who were the subject of the controversy.”

The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A141745.htm

For a person considering filing a restraining order, it is important to consult with an attorney.

We talk to a lot of parents in Oregon about parenting time and visitation problems, especially in high conflict cases.  From working with parents, I know it can be frustrating to wait months for a court date when a communication or visitation problem is happening now.   In some divorce cases, even after the divorce judgment is signed, high levels of conflict and animosity remain between the parents. One good solution for parents involved in high conflict cases is the use of a Parenting Coordinator, also called a Parenting Time Coordinator.  A Parenting Coordinator is a neutral person to whom parents can turn when in dispute on matters relating to the children.   They can be psychologists, social workers, lawyers, or mediators.  The purpose of the Parenting Coordinator is to provide parents an alternative to litigation and expensive, divisive court battles.

The court’s authority to appoint a Parenting Coordinator is found in ORS 107.425 (3), which provides in part:

In addition to an investigation, examination or evaluation under subsections (1) and (2) of this section, the court may appoint an individual or a panel or may designate a program to assist the court in creating parenting plans or resolving disputes regarding parenting time and to assist parents in creating and implementing parenting plans. The services provided to the court and to parents under this section may include: (A) Gathering information; (B) Monitoring compliance with court orders; (C) Providing the parents, their attorneys, if any, and the court with recommendations for new or modified parenting time provisions; and (D) Providing parents with problem solving, conflict management and parenting time coordination services or other services approved by the court. (b) Services provided under this section may require the provider to possess and utilize mediation skills, but the services are not comprised exclusively of mediation services under ORS 107.755 to 107.795. If only mediation services are provided, the provisions of ORS 107.755 to 107.795 apply. (c) The court may order one or more of the parties to pay for services provided under this subsection, if the parties are unable to agree on their respective responsibilities for payment. The court may not order that expenses be charged against funds appropriated for public defense services.

It can be faster and less expensive than using a lawyer to address a problem.  Parenting coordinators can help by resolving disagreements essentially without court intervention.  You can avoid costly court appearances, and have a  forum to openly communicate with one another.

If you find yourself returning to court on parenting issues either before or after you are divorced, retaining the services of a parenting coordinator may be a good alternative.

On January 6, 2010, the Oregon Court of Appeals made a ruling in Hanson-Parmer and Parmer on the issue of what evidence is required to demonstrate a “child-parent relationship” under ORS 109.119. The entire opinion can be found here: http://www.publications.ojd.state.or.us/A133335.htm

In Oregon, third parties (meaning not a child’s biological parents) can assert rights to custody and/or visitation. In order to do so they have to meet certain threshold tests. In March of 2005, wife filed a petition for divorce. Husband and wife had three children together and wife had another child, D. Husband, in a counterclaim filed in December of 2005, asserted that he is entitled to parenting time with D because he had established a parent-child relationship with D. For at least the six months proceeding wife’s filing, husband did not have any parenting time with D. Starting in July of 2005, husband had regular and consistent parenting time with D. The trial court ruled in husband’s favor and provided him with ongoing parenting time. The court of appeals reversed and ruled that “husband is not the psychological parent of D and is not entitled to parenting time or visitation with D.”

ORS 109.119 (10)(a) provides, in part that a “‘[c]hild-parent relationship’ means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child 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 which 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.” To determine whether a child-parent relationship exists the court must look at the six-months preceding husband’s counterclaim to determine whether his relationship with D meets the requirements of the statute. Husband did not have physical custody of D during those six months, nor did he reside in the same household as D. Husband was not able to meet the requirements of the statute.

In addition to the rights provided in the judgment with respect to parenting time and anything else agreed upon between the parties or ordered by the court, a non-custodial parent has certain statutory rights. They are set forth in ORS 107.154 as follows:

107.154 Authority of parent when other parent granted sole custody of child. Unless otherwise ordered by the court, an order of sole custody to one parent shall not deprive the other parent of the following authority:
(1) To inspect and receive school records and to consult with school staff concerning the child’s welfare and education, to the same extent as the custodial parent may inspect and receive such records and consult with such staff;
(2) To inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent may inspect and receive such records;
(3) To consult with any person who may provide care or treatment for the child and to inspect and receive the child’s medical, dental and psychological records, to the same extent as the custodial parent may consult with such person and inspect and receive such records;
(4) To authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is, for practical purposes, unavailable; or
(5) To apply to be the child’s conservator, guardian ad litem or both.

This does not mean that the other parent has to provide information to the non-custodial parent, but rather that the non-custodial parent has the right to access said information. A custodial parent’s refusal to provide such information could reflect poorly on him/her in future litigation.

This post is the second in our series on Oregon’s “Family Abuse Prevention Act” restraining orders. The first post was on who is eligible to get a restraining order. See previous post here. This post is about what you have to show to have the court issue a restraining order.

There is a lot of misinformation about what you have to prove to get a restraining order.  The goal of this post is to clear up some common misconceptions. So, what do you have to show to get a restraining order? A petitioner requesting a FAPA restraining order must show that:

1. He or she has been the victim of an incident of abuse within the preceding 180 days
2. The or she is in imminent danger of further abuse, and
3. The respondent presents a credible threat to the physical safety of the petitioner or the petitioner’s minor child.

Abuse: A showing of “abuse” is required. OK, so what is “abuse”? Abuse is NOT being threatened with legal action. Abuse is not rudeness or abruptness. Abuse is not “he said she would file a modification motion to get custody.”  Abuse IS any of the following in the previous 180 days:

(1) Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury;

(2) Intentionally, knowingly, or recklessly placing another in fear of imminent bodily injury; or

(3) Causing another to engage in involuntary sexual relations by force or threat of force.

Within the last 180 days: The incident of abuse has to have happened in the last 180 days.  Something that happened 3 years ago is not grounds for a restraining order.  There are exceptions to the 180 day rule the respondent is incarcerated or has lived more than 100 miles away during the preceding 180 days.

Imminent Danger of Further Abuse: If there is no danger of further abuse, the court should not issue a restraining order. There has to be some reason that “abuse”, as defined above, is likely to happen again.

Credible Threat to Safety of Petitioner or Petitioner’s Child: The party requesting the restraining order must show that the other party represents a credible threat to their safety. You may have a credibilty problem if you are 6 feet tall and weigh 210 and your spouse is petite and has no history or thereat of weapon use.

The petition must specifically allege the nature of the abuse and the date(s) of the abuse.

The court grants or denies restraining orders at ex parte, a short hearing with only the applicant present. Sometimes the court asks the applicant questions. The court will then make an initial finding about the above points and issue or deny the restraining order.

If you are considering getting a restraining order, you should talk to an experienced family law lawyer.

A common question that new clients come to my office is with is either can I move with the children or my ex-spouse has told me that she is going to move with the children and what can I do?  Child custody and/or parenting time modification matters often revolve around relocation issues.  In deciding these cases, the court will most frequently rely on the opinion of a custody and parenting time evaluator. 

On September 23^rd, the Oregon Court of Appeals overturned the trial court on a relocation request by a custodial parent.  The facts of the case are as follows:  Father and Mother have one child, who is currently 9 years old.  They lived in Klamath Falls.  The parents split up about 8 months after the child was born, and agreed on a parenting plan under which Father received approximately 45% of the parenting time.  Shortly thereafter, Father married and Mother began living with her current husband, Taylor.  About three years ago, Father moved to Roseburg, and, as a result of the move, his parenting time decreased to 27%.  Around the same time, Taylor was given a job opportunity in Chicago.  Mother decided to relocate to Chicago with Taylor.  Mother argued to the trial court that it was in the child’s best interest to also relocate as the child had a strong bond with Taylor, Father had already moved and reduced his role, and that her relationship with Taylor would end if she could not move. 

A custody and parenting time evaluation was conducted.  As a point of legal technicality, Father initiated his case as a request for a change in custody, but then dismissed that claim, leaving the only issue at trial as a modification of the parenting plan.  This was a strategic move, as the burden in a modification of parenting time matter is only what is in the child’s best interest.

The trial court decided that Mother should be allowed to relocate with the child.  The court of appeals reversed the decision.  This has become a regular trend in relocation cases.  The court of appeals based its opinion on the fact that the relocation would harm the child’s relationship with Father, who would lose his frequent and regular parenting time. 

In discussing relocation matters, a parent should consider the following:  1. It is very likely that the court of appeals will overturn trial court decisions on relocation matters; 2. Trial courts often decide in favor of relocation despite this fact; and 3.  The child being allowed to move and then being brought back to Oregon is hard on everyone in the family.  It is crucial to have both competent trial and appellate counsel when considering how to either relocate or deal with a relocation issue.   A good attorney can help a parent put together a strong case for or against relocation and address how to best manage the issues with relation to the child.

For more information on relocation issues or on family law appellate issues, please contact Stephens Margolin P.C. 

The entire appellate opinion in Herinckx and Matejsek can be found here:  http://www.publications.ojd.state.or.us/A137564.htm

Dan Margolin is quoted in Jacques Von Lunen’s artice in the Oregonian published on September 8th 2009. The full article can be found here: The article discusses how pets are treated in divorce cases.

As a Portland Oregon divorce law firm, Stephens Margolin P.C. is dedicated to keeping up to date on Oregon Court of Appeals and Oregon Supreme Court opinions. As a service of The Oregon Divorce Blog, we will be providing updates as new opinions come out.
On July 15, 2009, the Court of Appeals ruled in the case of Shineovich and Kemp, in which the Petitioner challenged the constitutionality of tow statutes under which a married man is deemed to be the legal parent of children born to his wife.
Petitioner and Respondent were in a same sex relationship for 10 years, during which respondent became pregnant by artificial insemination. After they separated, Petitioner brought suit seeking a declaration that she was the legal parent. She alleged that Oregon Law created a privilege for married men as being the legal father of a child born to their wife, but not for same sex couples. The trial court dismissed the claim on legal grounds.
The parties had obtained a marriage license through Multnomah County prior to the child being born with the intent that the marriage would give Petitioner legal parentage. The marriage was subsequently declared void by operation of law. Respondent then became pregnant again, giving birth after the parties had separated. Respondent denied Petitioner contact with that child.
The court of appeals held that the statute which concerns artificial insemination, ORS 109.243, violates Article I, Section 20, of the Oregon constitution, and that its protections should be expanded to include legal parenthood by operation of law for the domestic partner of a woman who conceives a child by artificial insemination.
The entire opinion can be viewed here: http://www.publications.ojd.state.or.us/A138013.htm
The lawyers at Stephens Margolin P.C. can assist you with your family law appellate questions. If you have any questions about Oregon appellate law please contact Daniel Margolin, who focuses part of his practice on family law appeals, or C. Sean Stephens at Stephens Margolin P.C.

Wired Magazine printed a short article on the use of text messages in divorce cases. The article is on page 28 of the August 2009 Issue. 

The articles quotes Gabriel Cheong, a Boston divorce lawyer as follows:  “In most states, the conduct of the parties during marriage is determinative of property division in a divorce.”  That is not a correct statement with regard to Oregon Law.  In Oregon, the conduct of the parties does not affect asset division, with the exception of a party hiding or wasting assets.  Where text messages can be valuable is in parenting time or custody proceedings.  In the past letters would be used as evidence against a party.  As we move further forward with technology Facebook wall writing and text messaging are starting to be used in trials.  The lesson of this story is to be careful with your texts.