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.

With almost 80% of cases in domestic relations involving pro se (self represented) litigants, it is not uncommon for a party to fail to respond to a pleading and find themself defaulted.  The court of appeals in Nolan and Nolan, which was decided on March 3, 2010, ruled on what constitutes a proper “written response.”  The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A141393.htm

In the case, Mother appealed from the trial court ruling awarding Father sole legal custody of the parties’ children.  The court of appeals found that the trial court improperly granted Father’s motion for default against Mother and remanded the matter to the trial court for a full hearing on the merits.

At the trial court level, Father served Mother with a Motion and Order to Appear and Show Cause why custody should not be modified.  Under the Douglas County local rules, Mother was required to file a “written response.”  Mother filed a motion to have the court decline jurisdiction, but did not file a counter-affidavit contesting Father’s allegations.  The trial court issued a default order against Mother.

The court of appeals held that the trial court’s ruling was incorrect.  The order of default should have been set aside since Mother did file a “written response.”

It is very important, both as a petitioner and a respondent to seek at least a consultation with an attorney if you are representing yourself.  On the petitioner side, you need to make sure that you understand the rules with respect to obtaining a default order.  On the respondent side, you need to make sure that you understand the county’s local rules.

The Court of Appeals decided the case of Bolte and Bolte on February 17, 2010.  The case is an appeal from a divorce trial.  The Court of Appeals modified the spousal support award made by the trial court.

Husband and Wife were married for 22 years, and separated a few years prior to trial.  Wife gave up employment opportunities of her own to further Husband’s career.  The parties had a household income of $14,000 per month, consisting of Husband’s income of $10,700 and Wife’s income of $3,300. 

Husband argued that his income should be only $7,900 per month because the remainder was from a position that he termed temporary.  Husband also argued that Wife’s income should be presumed to be higher because she was underemployed.

Trial court awarded indefinite support in the amount of $1,500 per month. 

The Court of Appeals held that Wife was not underemployed as she was already working full time and is not, for spousal support purposes, required to work at the highest possible salary.  The amount of spousal support must be “just and equitable” under the totality of the circumstances.  Specifically, ORS 107.105(1)(d)(C) provides a nonexclusive list of factors that we consider in establishing a just and equitable support award for spousal maintenance support, which include (1) the duration of the marriage; (2) the standard of living established during the marriage; and (3) the parties’ age, income and earning capacities, training and employment skills, work experience, and financial needs and resources.  The Court of Appeals modified the support award up to $2,500 per month indefinitiely because “without a substantial award of spousal support, wife’s standard of living following the dissolution will be significantly diminished when compared to the parties’ predissolution lifestyle, which was based on a monthly household income of approximately $14,000.”

The opinion can be found here:  http://www.publications.ojd.state.or.us/A139055.htm

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.

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.

This is a trick question.  There is no age at which a child can make these decisions, until he/she turns 18 and the court no longer has jurisdiction over them.

There are, however, a few methods by which a child can have input in the process. 1. An attorney can be appointed for the child. If the child is old enough, the attorney can advocate for the child’s wishes; 2. If there is a custody evaluation, the child will be interviewed and the evaluator may take the child’s views into account; 3. The child can testify in court. I never have children testify and am opposed to it. Judges do not want children to be involved in the process and it is generally thought that the less a child can be involved in the process, the better. That being said, an attorney can help a parent to advocate for their child’s wishes.

The courtroom is not the only path to a good resolution. Divorce mediation is a wise choice in most cases. I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate.  The opposing attorney had filed for temporary custody without asking for mediation. We asked the opposing attorney to mediate prior to the hearing, but they refused. I would have been happy to meet in our conference room and talk about some creative solutions to the problem, but they refused.  Rather than mediate or negotiate, a hearing was held. The result was substantially worse for the moving party than they expected, and perhaps even than they could have reached in mediation. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

Good divorce lawyers are dispute resolution experts. They are trained in negotiation, cooperative face to face meetings, collaborative law, mediation, and have trial skills. When asking a lawyer questions before you hire them, make sure to ask about how they resolve disputes. If court is the primary answer, you may be wise to look elsewhere.

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.

The Indian court system does not properly recognize divorces issued in the United States.  A divorced wife can flee on her own, or even worse with the parties’ children to India.  Once there, she can file dowry harassment charges against her “ex-husband.”  In addition, India is not yet ratified the Hague convention and will not act to send abducted children back to the United States. 

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.

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.