The Oregon Divorce Blog » Immediate Danger

New Case Law – Usupervised Visitation

Daniel Margolin — Wed, 20 Oct 2010 16:59:01 +0000

On October 13, 2010, the court of appeals issued an opinion in Long and LeDuc (http://www.publications.ojd.state.or.us/A142477.htm). Mother appealed the trial court’s ruling that father could have unsupervised time with his son. The court of appeals held that the record supported the trial court’s finding that there is no evidence that father presents a danger to his son. The court noted in a footnote that “ORS 107.102 does not specify factors that guide the “best interests” determination with respect to a parenting plan. Although ORS 107.137(1) addresses factors that are relevant to determining best interests with respect to custody, they are also material in determining whether parenting time should be supervised.” In order to require that a parent have only supervised time with a child the other parent needs to prove that there is a clear danger to the child.

Do I need to tell the other parent if I am requesting an emergency custody order?

Daniel Margolin — Thu, 03 Dec 2009 19:02:55 +0000

There are two forms of emergency custody order. A pre-judgment order (meaning that it is taken out at the time the original custody request is filed with the court) and a post-judgment order (meaning that it is taken at the time a modification is requested).

Pre-Judgment orders are governed by ORS 107.097 (3)(a). The statute does not require that notice be provided to the other party. The party requesting the order must be present in court and present an affidavit alleging that the child is in immediate danger.

Post-Judgment orders are governed by ORS 107.139. The statute requires that the party requesting the order state in his/her affidavit that he/she has made a “good faith effor to confer with the other party regarding the purpose and time of the court appearance.”

These orders are difficult to obtain as the court will only make such an order where there is clearly immediate danger present. There is a good deal of legal strategy involved in deciding whether or not to request such an order. The outcome of the court’s decision can have a lasting effect on the case.

It is advisable to utilize the services of an attorney in obtaining such an order.

Can I get custody of my child now if he or she is in danger?

C. Sean Stephens — Wed, 13 Aug 2008 04:52:38 +0000

As family law attorneys based in Portland, Oregon, we talk to a lot of parents with safety concerns about the other parent’s home. We hear questions about how to get custody quickly, or change a parenting plan quickly if a child is not safe with the other parent.

The court can establish custody or parenting time in divorces, annulments, legal separations, modifications, custody actions, filiation actions, and third party custody cases. If custody is established in these cases at the time of the final hearing, it may take months between the filing of the petition or motion and the court’s final decision. But what do you do if a child is in danger now, and a full evidentiary hearing is months away? Oregon courts provide for an emergency remedy if a child is in immediate danger of harm.

Oregon courts can award emergency custody even if there is no previous custody determination between the parties. ORS 107.097 provides in part that “[a] court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

(A) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
(B) 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.”

Oregon courts can also award emergency custody even if there is already a custody judgment between the parties. ORS 107.139 provides in part that “[f]ollowing entry of a judgment, a court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

(A) A parent of the child is present in court and presents an affidavit alleging that the child is in immediate danger;
(B) The parent has made a good faith effort to confer with the other party regarding the purpose and time of this court appearance; and
(C) The court finds by clear and convincing evidence, based on the facts presented in the parent’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 main difference between the two provisions is that pre-judgment no notice is required; while post-judgment you must make a good faith effort to talk to the other party about the appearance. If the court grants an emergency motion, the non-moving party is entitled to a hearing. The issue at the hearing is limited to whether or not the child was in an immediate danger at the time the emergency order was issued.

If you already have a parenting plan, you need the court’s permission to change it. You cannot simply refuse to return a child in violation of the parenting plan. The consequences for refusing to follow parenting plans are serious, and can include jail time in some situations. The emergency custody statutes do not offer much guidance to the courts, and judges in the same courthouse can have different interpretations of what both “immediate” and “danger” mean. You should immediately consult with an experienced family lay attorney if you believe your child is in danger of harm with the other parent.