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.

On February 11, 2009, the Oregon Court of Appeals published an opinion in Branam and Beaver.  The case is an appeal from a trial court ruling on the division of assets in a long term domestic partnership.  The main question before the court was how to divide the proceeds from the sale of the parties’ home.

Beaver and Branam are a man and woman who lived together in a domestic partnership but never married. Branam had received an inheritance from her former husband. She used part of the money to buy a house. The parties never discussed what would happen if they decided to separate. When Beaver moved into the house, Branam agreed to put his name on the house. Beaver argued that this meant that he owned half the house and should receive half of the equity in the house after they broke up. Beaver said that she never intended for him to receive the money originally paid for the house and that she added his name as a way to insure that he could live in the house if she died.  The parties sold the house and the trial court decided to award half of the apprectiation of the value of the house to each party and to award 100% of the original value to Branam.  On appeal, Beaver contends that the court erred in reimbursing the purchase price to Branam.

In its opinion, the court of appeals explainst that Oregon law, based on the court of appeals’ ruling in Beal and Beal and that case’s progeny, provides that, in the dissolution of a domestic partnership, courts are required to divide property according to the express or implied intent of the parties at the time that they established their partnership. If the court cannot discern the parties’ intent, the court may exercise its equitable powers to reach a fair dissolution of the parties’ partnership. How the parties held legal title to real property is evidence of the parties’ intent, but it is not dispositive. Where there is no express agreement of the parties regarding the division of their property in the event of dissolution of their domestic partnership, “courts should closely examine the facts in evidence to determine what the parties implicitly agreed upon.” Beal, 282 Or at 122. The court then looks at the following factors to determine the intent of the parties: 1. Inferences drawn from the way the parties lived; 2. The fact of cohabitation can be evidence of an intent to share incomes during the time the parties live together; and 3. Joint acts of a financial nature (joint checking account, joint savings account, joint purchases, etc…) may give rise to an inference of a intention to share equally. Where the evidence establishes that parties in a domestic partnership intend to share property equally but one party makes a greater initial contribution to the property, the property will be divided equally but the party making the greater initial contribution will be credited for that contribution.

In this case, since there was no evidence that the parties intended to split the initial contribution made by Branam, it was proper for the court to split the appreciation in the property equally, but to award the initial purchase price to Branam.

The entire opinion can be found at http://www.publications.ojd.state.or.us/A133414.htm.

The case teaches us that unmarried couples who intend to share their financial lives would be well advised to set forth their intentions in a formal document.  If not, the court will decide for them how to split up their possessions and finances when they break up.

The lawyers, including Daniel Margolin, who focuses part of his pratice on family law appeals, at Stephens Margolin P.C. can assist parties going through the dissolution of a domestic partnerhip or who want information on dometic partnership agreements and in better understanding the law in Oregon regarding divorce. If you have any questions about Oregon appellate law please contact Daniel Margolin or C. Sean Stephens at Stephens Margolin P.C.

Mediation is a form of dispute resolution that aims to assist two or more disputants in reaching an agreement. At a trial, the parties present evidence, and a decision is imposed on the parties by the judge. In mediation, the parties themselves determine if there is an agreement, and the contents of the agreement. Many parents chose mediation with a private mediator. If, for financial or other reasons, you do not want to hire a private mediator, Multnomah, Clakamas, and Washington county make mediation available to parties involved in family law disputes.  Courts want people to mediate because it weeds out cases that can be resolved without the help of a judge. Clients want mediation because it gives them control over the outcome, is confidential, reduces conflict between the parties, and is generally less expensive than litigation.  Good lawyers like mediation because it provides an efficient and lower cost way to help clients resolve their disputes.          

ORS 107.755 requires that each judicial district provide a mediation orientation session for all parties in cases where custody, parenting time, or visitation is in dispute, and in any other domestic relations case where mediation has been ordered. The orientation session should make parties aware of (1) what mediation is; (2) mediation options available to them; and (3) the advantages and disadvantages of each method of dispute resolution. With limited exceptions, mediation is mandatory prior to a judge hearing  a case.  Mediation is not appropriate for restraining order or cases involving domestic violence, and court mediators must, per statute, be trained in recognizing domestic violence, allow parties to opt out, and take steps to avoid intimidation before and during mediation. County mediation is held in private, and all persons other than the mediator and staff, parties, counsel and children of the parties shall be excluded.  All communications, verbal or written, made in mediation proceedings shall be confidential, and not subject to examination in court.

Multnomah County:  The court’s rules about mediation are located in SLR 8.046.  Multnomah county is a mandatory mediation county for family law cases.  If you don ‘t mediate or get permission to get out of mediation, you won’t get time with a judge. No temporary hearing or trial regarding custody or parenting time will be set unless an Order for mediation has been obtained, an Order Waiving Mediation has been entered, or the parties have attended mediation since the filing of the Petition.  Modification motions will not be heard without compliance with the mediation requirement. The Multnomah County Family Court Services website provides that mediation is available for custody and visitation issues.  The service is supported by filing fees and is free to the participants. For more information or to set an appointment call Family Court Services at 503.988.3189.

Washington County: Washington County has mandatory mediation for Any action filed in the court involving a controversy over custody or parenting time of minor children. If the parties agree, the mediator can address issues other than children, such as property and support.  If there is a disagreement concerning custody or parenting time at any stage of a domestic relations proceeding, the parties must mediate.  Parties must complete two sessions of Kids Turn, the mandatory parenting class prior to mediating. Parties may independently select a private mediator. Mediation is confidential, and free. The Washington County Conciliation Services website provides information on mediation services in Washington County. Mediation can be scheduled by court order, or by calling Conciliation Services at : (503) 846-3428.

Clackamas County: Clackamas county is a voluntary mediation county.  There is no SLR mandating mediation. Parents can access free mediation through the county, but are not required to do so in most cases unless specifically ordered to by a judge.  The Clackamas County Family Court Services website provides information about accessing mediation in Clackamas County.  Most types of family law filings qualify for one or two free mediation sessions. Mediation sessions beyond the two free sessions are charged at $80 per hour. Mediation can be scheduled by calling  Family Court Services at  503-655-8415 .

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.