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Top 10 List: Top 10 ways to keep your kids out of the middle of your divorce or custody case April 7, 2008

Posted by csstephens in Child Custody, Top 10 List.
4 comments

We just blogged about the “Top 10 list: Top 10 ways to keep your kids out of the middle of your divorce or custody case”   Please review the full post on this subject at www.oregondivorceblog.com.

New Case Law: how to ask for your attorney fees the right way. March 13, 2008

Posted by csstephens in Child Custody, Legal Developments.
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istock_000001836009xsmall.jpg As a Portland based firm representing divorce clients in Oregon, we are always interested in what the Oregon Court of Appeals says regarding attorney fees. We previously blogged about how in many types of family law cases you have the right to ask for fees. The Oregon Court of Appeals published a decision in Mcintyre and Freeman, ____ Or. App _____ (2008) dealing with an attorneys fee request after a custody and parenting time case. The case talks about your right to ask for fees, and your right to a hearing if you object to the other sides’ fee request.

In Mcintyre and Feeman, the parties had argued over custody, parenting time, and child support. Mother’s attorney reported that the case was very contentious. Father asked mother to pay a portion of her attorney fees, and mother objected. Mother also asked that father pay her fees. The court, without holding a hearing, ordered mother to pay a portion of father’s legal fees. We previously blogged about how in many types of family law cases you have the right to ask for fees in our post captioned “Divorce Myths: My ex will have to pay for my attorney fees.” The issue in the case was whether Mother objected properly, and whether the court wrongfully denied mother the right to a hearing. The court determined that mother had been wrongfully denied a hearing on the issue of fees. The court determined that mother had, within the appropriate time period, objected to father’s fees. (Oregon extends deadlines by three days when the original notice was served by U.S. mail.) The court then addressed whether mother’s failure to sign documentation showing the date of mailing made the objection defective. (Oregon law requires pleadings and other paper to be signed by the lawyer or client. While not discussed in the opinion, mother’ s attorney stated that the file room lost the properly filed certificate of service.) The court held that the notice was not defective just because mother’s lawyer didn’t sign the certificate of service. The court went on to say that Oregon law requires the other side to point out a lack of signature, and giving the other side an opportunity to fix it, prior to striking an unsigned pleading. One judge dissented, stating that there is no express obligation in the rules to bring a signing defect to the other side’s attention.

What does this mean to divorce and custody litigants in Oregon? Discuss with your lawyer the potential to ask for fees, and the potential to be required to pay fees. Ask for fees in your initial pleadings to preserve your rights to them. Behave appropriately in light of ORS 20.075 during your case (see our post captioned “Divorce Myths: My ex will have to pay for my attorney fees.”) Take reasonable positions. Follow the time line and procedures of ORCP 68 to the letter. And last but not least, sign your pleadings!

Who gets to claim the child tax exemption? March 10, 2008

Posted by margolinlegal in Child Custody, Child Support, Dissolution, Myths, settlement.
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istock_000004891591xsmall.jpg Clients often come to me asking whether they or their ex-spouse/unmarried parent of their child can claim their joint child as a dependents for tax purposes and receive the dependent tax exemption. They often think that this is a decision that is up to them and attorneys often use it as a bargaining chip.

In a divorce or custody case I am representing clients in state court. The United States Congress, through the tax code, has determined how the child/dependent tax exemption should be awarded. The supremacy clause of the United States Constitution prevents state courts from deciding issues of federal law. This means that a state court cannot properly award the exemption to a parent who otherwise would not qualify for the exemption under federal law.

The qualifying parent under IRS rules is the “custodial parent,” which is defined as “the parent having custody for the greater portion of the calendar year.” The award of “legal custody” has no effect on this definition, rather the custodial parent is “the parent with whom the child resides for a greater number of nights during the calendar year.” In cases where the child resides an equal number of overnights with each parent, the parent with the higher adjusted gross income for the calendar year is awarded the exemption.

Parties can agree to share the exemption or to have the parent that does not qualify receive the exemption. This is usually accomplished by a provision in the parties’ judgment. In order to provide the non-qualifying parent with the exemption, the qualifying parent must sign a written declaration and the declaration must be attached to the non-custodial/non-qualifying parent’s income tax return. This can be completed using IRS tax form 8332, which can be found here http://www.irs.gov/pub/irs-pdf/f8332.pdf.

A decision to allocate the dependent exemption to the non-qualifying parent should not be taken lightly. In addition to the exemption, the non-qualifying parent will also receive the child tax credit. Therefore, an agreement to deviate from IRS rules can have significant tax impacts for the qualifying parent and creat a tax windfall for the non-qualifying parent. If the agreement will be included as a provision in a judgment, the decision to do so should be carefully discussed with your attorney.

The IRS faq located at http://www.irs.gov/faqs/faq-kw46.html provides detailed information on this question.

It’s OK to ask for help March 9, 2008

Posted by shelleycm in Child Custody.
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As I sat in the loft outside my nine-month-old’s bedroom, exhausted from caring for her while recovering from strep throat and a shiny new case of influenza, I was struck by just how difficult it must be for newly-single parents to care for their kids while they’re sick  themselves.  My husband and I barely manage to keep our daughter fed, changed, and reasonably happy while we shuffle around clutching boxes of Puffs — and that’s with two of us and a marginally mobile baby.   For single caregiving parents, it’s a hundred times more exhausting to put food on the table, change diapers, and somehow manage to entertain children before collapsing in bed to recuperate.  And anyone who has ever tried to take a squirmy child with them to urgent care, the emergency room, or even the doctor’s office knows how Herculean that task can be.

There is one logical person who can help out – but I’ve found that it rarely occurs to single parents to pick up the phone and ask.   Yep, that’s right – the other parent.

(Naturally, you’d want to clear it with your lawyer if a custody action is pending, because you’d hate to have it used against you.  If you do have a custody action pending, though, you might want to think about putting a provision like this into the judgment.)

No matter what may be going on between the two of you, your child must come first.  If all you can manage is to make it to the kitchen for the next cup of TheraFlu, think about calling the other parent and asking if he or she would like some extra parenting time for a day or two while you recover.  It’s win-win-win: you will feel better sooner if you rest up,  your child will have the full attention of a parent, and your ex will have some bonus parenting time.

And with that said, I think it’s time for my next cup of TheraFlu….

Here come the brides: the Oregon Family Fairness Act February 17, 2008

Posted by shelleycm in Child Custody, Child Support, Dissolution, Domestic Partners.
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With the Oregon Family Fairness Act (OFFA) now in effect, registered domestic partners now have some of the same rights as a married couple, at least in Oregon and any other state which chooses to recognize these partnerships.* This post explains what a domestic partnership is, both for heterosexual and same-sex couples, and what the benefits of registering are for same-sex couples.

Let’s start with what seems like the easy part: what are domestic partnerships? Under OFFA, same-sex couples over 18 may register as partners. However, heterosexual couples may not register as partners (primarily because they already have the ability to receive these benefits through marriage). Because the Oregon Constitution limits marriage to heterosexual couples, a separate mechanism for uniting families was required. (Check out the Basic Rights Oregon website for a wonderful guide to the legislation.)

But what are these automatic rights married couples get that unmarried and unregistered domestic partners don’t have?

Some rights are obvious: for example, to make medical decisions for a partner when the partner is unable to make those decisions him or herself or to automatically inherit property if a partner dies without a will. Others aren’t as obvious, like the ability to claim wrongful death benefits or crime victim survivor benefits if a partner is killed.

Some rights are provided by the state, like the automatic inheritance of a partner or how custody would be determined in a partnership dissolution, because inheritance and family laws are set by the state. Other rights are federal, like the ability to file jointly on federal income taxes. Oregon’s domestic partnership law can only affect state-provided rights. Subsection 9 of the legislation provides that “any privilege, immunity, right or ben3efit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married….is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership…”

It doesn’t get more equal than that in Oregon, save in name alone. Additionally, registered partners also have all the same responsibilities as married couples!

But since this is a legal blog, we’re mostly concerned about the juicy bits – those rights dealing with estate planning, wrongful death claims, adoptions, custody, and, of course, dissolution of the partnership.

But first, a little history. Some readers might be surprised to learn that domestic partnerships in family law courts aren’t new in Oregon. In fact, Oregon family law courts have dissolved an increasing number of heterosexual domestic partnerships. In doing so, the court would look back and determine whether or not the parties actually intended to form a domestic partnership: even though these are relationship dissolutions, frequently one party argues it was not a partnership (usually the party with assets) and the other argues that it was (usually the party with fewer assets). To find out what the parties intended, the court uses a test usually used in the context of business partnerships – did the parties intend to pool resources and share liabilities? If the answer is yes, then the court tries to find an equitable way to divvy up the parties’ resources. If no, then the parties keep their separate property.

Sounds easy, right? But it’s not. The court can’t order spousal support. Custody of children is very complex, because for a non-biological parent to receive custody or visitation, another action must be filed (although in fairness, it may be joined to the dissolution of domestic partnership action). Basically, in the absence of a clear statute, the family law court exercises its equity powers — basically, whatever the court thinks is fair on that day. This means results can vary even more widely than they can with the assistance of statutes.

What OFFA does for same-sex couples is give the court all of the well-developed tools the legislature has enacted over the years for the dissolution of marriage cases, as well as providing more options for determining custody of children in a partnership dissolution. (If you want to know just how busy the legislature has been in developing and honing those family laws, take a gander at ORS 107 and ORS 109!)

We hope domestic partnerships thrive. However, if you have registered a partnership and wish to dissolve it, think carefully about your next steps and consult with an attorney well versed in dissolution of marriage procedures. Due to the sensitivity of the subject matter, don’t be shy about asking your attorney what he or she thinks of your lifestyle. It does matter. It’s important that there be an open and trusting atmosphere in your dealings with your dissolution attorney.

*Although states are supposed to give each other’s laws “full faith and credit” under the US Constitution – and this includes honoring marriages – states do not have to do so when another state’s laws violate public policy in that state. This was, generally, the way the law was practiced before the enaction of the so-called “Defense of Marriage Act” (or DOMA) in 1996, but it’s now the law of the land. So, for example, if a couple marries at the age of 14, and that is legal in the state in which they reside, but is illegal in another state, the question of the marriage’s validity in the second state is up for grabs, depending on the policy implication of 14 year olds marrying. If thinking about this makes your head hurt, you’re not alone: the topic of marriages alone took up weeks in my Conflicts of Law class.

Information about the mandatory parenting classes in Multnomah, Clackamas, and Washington County, Oregon. February 10, 2008

Posted by csstephens in Child Custody, Dissolution, Grandparents, Modification.
6 comments

istock_000004700105xsmall.jpg As a divorce lawyer in downtown Portland Oregon, I frequently get asked about the parenting class requirements for family law cases in Multnomah, Clackamas, and Washington county. Some people already know of the class requirement, some don’t. A common reaction on learning of the class is “Me? Need a parenting class? Why?” A series of questions usually follows. “What is the cost? How long is the class? Can I waive it? Will I have to attend with my spouse?” The following is our effort to summarize the court’s authority to require the class, the reasons behind the class, and provide information about the classes in the tri-county area.

ORS 3.425 gives each family court department (or presiding judge) the power to set up a family law education class for parents in family law cases. The purpose of the class is to inform parents about the impact of family restructuring on children in family law litigation. If the county establishes a class, the class must include at a minimum information about: (1) The emotional impact of a divorce or separation on children at different developmental stages, (2) Parenting during and after a divorce or separation, (3) Custody , parenting time, and shared parenting plans, (4) The effect on children of parental conduct, and (5) Mediation and conflict resolution. The class may be required in divorce, annulment, legal separation cases, custody or parenting time petitions, modification of custody or parenting time actions, and enforcement actions. Our three local counties in the metro area (Multnomah, Clackams, and Washington) have all adopted mandatory parenting class programs.

Multnomah County: The court’s rules about the class are located in Multnomah County Supplemental Local Rule 8.125. The class is required for parties to divorces, annulments, legal separations, petitions for paternity and custody or parenting time, and modification actions if a parent has not previously completed the class. The class costs $45 – $60, depending on how fast you register. The class is one session and takes three hours. Online information about the Multnomah County class can be found at Family Court Services website. You can register online, or register by phone by calling (503) 988-3037.

Washington County: The court’s rules about the class are located in Washington County Supplemental Local Rule 8.102. The class is required for the following cases where the parties have children under the age of 17: divorce, annulment, legal separation, petitions for custody or parenting time, modification of custody and parenting time, and filiation cases. The cost of the class is $145 per adult. You can pay for the class with Visa, MasterCard, debit card, and money orders. The class consists of four (4) ninety minute workshops. Classes are scheduled weeknight evenings and Saturday mornings. You can find the Registration packet for Kids’ Turn, the class schedule, and a FAQ here. You can register for the class by returning the above packet or by calling the Kids’ Turn office (503) 846-0665.

Clackamas County: The court’s rules about the class are located Clackamas County Supplemental Local Rule 8.015. The class is required for the following types of cases where the parties have a child under the age of 18: Annulment or dissolution of marriage actions, legal separation actions, petitions to establish custody or visitation, and post-judgment litigation involving custody or visitation. The cost of the class is $60, but is reduced to $45 if your register within 45 days of filing your case. The class is one session, 3 ½ hours, held Wednesday evenings from 5:30 to 9:00 p.m. and on Saturday mornings from 9:00 a.m. to 12:30 p.m. You can register on the web, by fax at (503) 650-5656, by mail, by phone at (503) 655-8415, or in person at 2051 Kaen Rd. Oregon City, OR 97045. The registration link is here. The FAQ put out by Clackamas County Family Court Services about the Parent Education Program is here.

Our recommendation is to take the mandatory class as early as possible in the process. You may learn something to help your kids, and you won’t irritate the court.

Top 10 list: Top 10 questions to ask a divorce lawyer in the first consultation. February 10, 2008

Posted by csstephens in Child Custody, Child Support, Dissolution, Out of State, Property Division, settlement, Spousal Support, Top 10 List.
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first meeting with lawyer If you are contemplating divorce, you should consult with an experienced family law attorney. Once you set up a consultation, be prepared for the first meeting, and have a list of questions to ask the lawyer. The following questions should help you understand the divorce process, how your lawyer’s office operates, and if the lawyer is a good fit for you and your case.

  1. How experienced are you in family law? All lawyers have law degrees, but many lawyers practice in several fields other than family law. You don’t want a generalist. Family law is a specialized field, and you will likely be better served by a lawyer who focuses on family law. Make sure that most of their cases are family law cases. Ask the lawyer if they have handled cases like yours before.
  2. What steps are involved in the divorce process? Your lawyer is there to educate you and guide you through the process. Have the lawyer clearly explain the process to you, from filing the petition, negotiating temporary orders, and the trial process.
  3. How will you charge me? If you hire the lawyer, you should expect to sign a retainer agreement that covers how you will be charged. Ask about the hourly rate, and how often you will be billed. Ask if you will be charged for time spent with paralegals and other staff in the office, and at what rate. Ask what will happen if you cannot pay your bill in full every month. Ask if you can pay by credit card, and if payment plans are available.
  4. How will we communicate? Ask your lawyer if they prefer phone contact over email, and how long you should expect to wait for a return call. Is your lawyer tech savvy enough to email you draft documents as PDF files? Is your lawyer’s office set up to scan and email incoming and outgoing correspondence? Do you automatically get a copy? The last three are essential if you live out of state, or a distance from your lawyer’s office. Lawyers ta
  5. How long will the process take? Ask your lawyer about what is their estimate for how long the case will take depending on if you settle quickly, settle after protracted negotiations, or have a trial.
  6. Can you estimate the cost of my divorce? This is an important question, but a very difficult one to answer. Don’t worry if your lawyer is hesitant to answer. The cost of a divorce depends on what you ask the lawyer to do, the level of conflict between you and your spouse, and the reasonableness of your spouse and their lawyer. Many of the cost factors are outside your control.
  7. What kind of resources do you make available to clients to make the divorce process less difficult and painful? Divorce is a difficult time, and good lawyers provide information and resources to help deal with the human side of the impact. Does your lawyer provide information about the process for self education? Are they patient with you? Do they offer referrals to other professional services if you request them? Our firm provides information through this blog, and educational articles on our website. We also maintain a list of recommended reading materials, and a list of qualified counselors and therapists for those who ask.
  8. Do you recommend mediation? Ask your lawyer if your case is appropriate for mediation. Ask about private mediation, and about how often the lawyer uses private mediation with clients. Good lawyers try to settle their cases once they have analyzed the case. A lawyer that does not use private mediation or other alternative dispute resolution tools may be doing you a disservice.
  9. What fees and costs can I expect other than charges for your time? Your local county (Multnomah, Washington, Clackamas, etc.) will charge a filing fee to open a case. You will likely have to pay a process server to server your spouse with divorce papers. Your case may require experts, such as appraisers, actuaries, accountants, social workers, or psychologists. Ask your lawyer what costs to expect, what experts may be needed, and how you will be charged for these additional services.
  10. How would you predict a judge would rule on the issues in my case? While no lawyer can guarantee specific results, listen closely to the analysis behind the lawyer’s answer. Understanding the facts that would make a favorable ruling more likely will help with strategy during the case.

New Case Law: Circumcision as the basis for custody modification? January 28, 2008

Posted by csstephens in Child Custody, Legal Developments, Modification.
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1440008_06caf3e411.jpg On January 25, 2008, the Supreme Court of Oregon issued a fascinating opinion in Boldt and Boldt, ___Or ____(2008). The Supreme Court in Boldt addressed a custodial parent’s authority to make religious and medical decisions for a child. The court also addressed whether a child’s objection to an elective medical procedure (circumcision) constituted a “change of circumstances” that would allow the court to modify custody if in the child’s best interests.

Mother and farther divorced in 1999. Mother was awarded custody of M, then 4 years old. The parties continued the fight over custody, and father was awarded custody of M when he was 9. In this proceeding, Mother filed for a change custody on the grounds that father intents to have M circumcised as part of M’s conversion to the Jewish faith. In the alternative, mother sought an injunction against father circumcising M as a condition of father retaining custody. The trial court denied mother’s motion to modify custody, but prevented father from circumcising M pending mother’s appeal. The Court of Appeals affirmed the trial court ruling without opinion. The Supreme Court heard mother’s petition for review, reversed both lower court rulings, and remanded the matter to the trial court for additional testimony regarding M’s preference.

Mother is a member of the Russian Orthodox Church, and M was raised in that faith. Father took interest in Judaism in 1999 (about the time of the divorce), and began teaching his children about the faith. Father converted to Judaism in 2004, and told mother that M may convert, and would have to be circumcised as part of the conversion.

On June 1, 2004, mother filed a motion for a temporary restraining order to prevent M from being circumcised, alleging that M objected to the procedure. Father countered that Oregon lacked jurisdiction to hear mother’s motion because M had lived in Washington state almost two years. He additionally argued that as the custodial parent, he had the authority to make the decision to have M circumcised. The court restrained father from circumcising M pending a hearing on jurisdiction and custody.

On June 4, 2004, mother filed for temporary custody under ORS 107.139 (alleging M was in immediate danger), or an alternate order barring M’s circumcision. Mother also filed a motion to change custody under ORS 107.135. Mother’s basis for both motions was an affidavit alleging that father was circumcising M against M’s wishes. Father again raised a jurisdictional challenge, and filed affidavits from family members asserting M consented to the circumcision, and from M’s doctor stating there were medical benefits to the procedure. At hearing, the circuit court found (1) it had jurisdiction to hear the matter, (2) that the decision for a child to have elective surgery is reserved to the custodial parent, (3) that in any event, mother had not alleged sufficient grounds for an emergency change of custody, and (4) issued an order preventing the parties from circumcising M until mother’s appeal was heard.

The Court of Appeals affirmed without opinion. The Supreme Court of Oregon allowed review. The court explained that Oregon requires a two-step inquiry to determine whether a court should modify custody. First, a parent seeking a custody change must show that (1) after the original judgment or the last order affecting custody, circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed, and (2) considering the asserted change of circumstances in the context of all relevant evidence, it would it would be in the child’s best interests to change custody from the legal custodian to the moving party. Ortiz and Ortiz, 310 Or 644 at 649 (1990). The question of a change of circumstances is a factual one, and can be shown by a change that has injuriously affected the child, or a change in the other parent’s ability or willingness to care for the child in the best possible manner. If the moving party cannot establish a change in circumstances, the court does not consider the second step of the analysis (the “best interests” test.)

The Supreme Court agreed with the trial court that the custodial parent has the authority to make elective medical decisions for his or her child. Father asserts that mother’s rights regarding medical care are limited by ORS 107.154, and that his medical decision on behalf of M cannot be the basis for a change of custody.

Outside medical and religious groups took interest in the case, and Mother was supported by amicus curiae briefs (briefs filed by a “friend of the court,” someone not a party to a case, who volunteers to offer information to assist the court in deciding a matter before it) from Doctors Opposing Circumcision (DOC). Father was supported by amicus curiae briefs from the American Jewish Congress, American Jewish Committee, Anti-Defamation League, and Union of Orthodox Jewish Congregations of America. Father and his supporters argued father has a constitutionally protected First Amendment right to circumcise his son, as it is a fundamental and sacred part of the Jewish religions tradition.

The Supreme Court declined to base its decision on the medical risks or benefits of circumcision. The Supreme Court held that circumcision is a decision is commonly and historically made by parents, and that the decision to circumcise a male child falls within a custodial parent’s authority, despite medical or religions objections by the non-custodial parent. Had mother only asserted an objection to circumcision as the basis for her motions, her case would have been dismissed. However, mother asserted that M objects to the circumcision. M is now 12. The Supreme Court remanded the case to the trial court to take testimony regarding M’s preference, because father’s circumcising M against his will could affect the relationship between M and father, and thus could have a pronounced effect on father’s capability to properly care for M. If M consents to the procedure, mother’s motion to change custody should be denied. If mother is correct that M objects, the trial court could consider changing custody, the trial court must determine if M’s opposition will affect father’s ability to properly care for M. If the answer is yes, the court can address modification of the existing custody arrangement, or whether conditions should be imposed on father’s custody of M.

Clients ask us regularly what is the scope of their custodial authority. Can the non-custodial parent make medical decisions for the child? (Maybe, per the limits of ORS 107.154). What if the non-custodial parent wants to pierce the child’s ears? What decisions regarding the child might make custody at issue? Boldt tells us that if you are the custodial parent, you can make medical decisions without input from the non-custodial parent. However, if the medical procedure is elective, and the child objects, your decision may constitute a “change of circumstances” that would allow a trial court to consider changing custody.

Coordinating Parenting Time After Judgment – Part II November 17, 2007

Posted by csstephens in Child Custody, Divorce Tech.
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We already posted about coordinating parenting time post judgment. (see post here) Managing children’s schedules is difficult when everyone is together and lives under the same roof. It can be almost impossible, even in a cooperative case, if the parents are not organized. Some clients we have worked with have reported good results from using a web service called OurFamilyWizard. They provide web based tools for coordinating parenting time, kids’s schedules and activities, and parental communication.

Out of State: Can Oregon hear my custody case? November 17, 2007

Posted by csstephens in Child Custody, Dissolution, Out of State.
1 comment so far

Going through a custody dispute is never easy, and becomes even harder when the parties and children live in different states. Should you file here? Should you file where the other parent lives? What if the other parent files a custody action in another state even though the kids live primarily in Oregon? What if you both moved to different states after separation? If a couple has no kids, as long as one spouse lives in Oregon and meets the residency requirements, Oregon can usually hear the case. (We blogged about this topic in an earlier post) If a couple has kids, the court must decide if it has jurisdiction to hear the custody portion of the case. To make the decision, Oregon looks to the “Uniform Child Custody Jurisdiction And Enforcement Act.” (UCCJEA) ORS 109.700 et seq.

To determine if Oregon has the power to make the first custody determination, the court must satisfy one of the following four tests:

(1) Is Oregon the “Home State” where the child has lived for at least six months prior to filing?

(2) Does Oregon have “Significant Connections” to the child and at least one parent or parental figure, with good evidence regarding the child’s care, protection and personal relationships located here, AND no “Home State” exists; or the “Home State” has declined to exercise its jurisdiction.

(3) Has the Home State or Significant Connections State declined jurisdiction in favor of Oregon, based on inconvenient forum grounds (ORS 109.761) or unjustifiable conduct grounds (ORS 109.764)?

(4) Is there NO other state with Home State or “significant connections” jurisdiction?

In some emergency circumstances, Oregon can assert temporary jurisdiction over a child even if the above tests are not met. For example, if a child or parent is threatened with mistreatment or abuse, Oregon can temporarily hear the matter. This type of jurisdiction is limited and usually only lasts until the “Home State” or “Significant Connections” state issues an order.Even if you meet one of the above tests and Oregon can assert jurisdiction, the court must determine if it should exercise jurisdiction. If Oregon is a less convenient place to hear the dispute, Oregon may decline to hear the matter. In making this decision, the courts considers domestic violence issues, travel and financial considerations, where the best evidence is, how familiar are the courts with the matter and how fast could they hear it, and how long a child has resided outside a state. ORS 109.761 Also, Oregon might decline jurisdiction if a party has engaged in wrongful conduct (like misrepresenting where a child lives).

If you are filing for custody and the children have lived in multiple states, make sure your lawyer is familiar with the UCCJEA and has all of the information needed to analyze whether Oregon is the right place to file.

Coordinating Parenting Time After Judgment October 30, 2007

Posted by shelleycm in Child Custody.
4 comments

No matter how comprehensive a parenting time agreement is — and attorneys do try to make them as specific as possible — even after the custody or dissolution judgment is in effect, there are almost always conflicts about parenting time for the non-custodial parent.

Here are some common examples:

  • when the parenting time agreement provides a child’s illness is the only “excuse” for missed time, then what happens if the custodial parent with a duty to deliver the child to the drop-off site is also so sick he or she can’t drive?
  • when all of the child’s clean underwear/good clothing has ended up at one parent’s home?*
  • an important family event –wedding, funeral, milestone birthday — occurs on the other parent’s “day?”
  • the child never completes school work while at the other parent’s home?

One question parents often have is whether the other parent is in contempt of court for minor infractions of the parenting plan. Technically the answer is “yes.” Should you march into court? The answer is probably “no.” Most courts don’t like to play “he said, she said” every time a conflict arises, and prefer for parents to determine a solution on their own.

Ideally, a conflict would simply never arise. Parents who work hard to be understanding and flexible have the fewest issues with their parenting time agreements. If the other parent calls and explains he or she will be late, it’s a good idea to say, “Sure, that’s fine,” knowing that the next time you have a problem, he or she will be much more likely to also be understanding. (However, if you don’t have faith that your ex will be understanding, you might want to keep a private log of the times he or she is late and the times you’ve let it slide. You might want this as evidence at a later date.)

Another good idea is to keep a shared calendar online, like on Google Calendar. You can put in each parent’s parenting time on the calendar, the child’s school and extra-curricular schedules, and important family events. Include reminders with the events, so that you both will get emailed when they’re coming up. This way, neither party will be blindsided.

Parents who are unable to pick up or drop off the child should get in contact with the other parent to give them the option of picking up or dropping off the child themselves. If one parent is sick, he or she should call the other parent to give him or her the option of caring for the child while the other party recovers. (This, understandably, generates a tremendous amount of goodwill.)

Another good idea is to keep a “Parenting Time Notebook.” Wherever the child goes, the notebook goes with him. (I recommend a bound composition or lab notebook, from which it’s very difficult to tear pages out.) On the first page, put critical information: the numbers for emergency contacts other than the parents, the child’s school address and telephone, the child’s pediatrician, and of course, numbers for each parent. Then, as the child travels from home to home, each parent records how the time has gone, if the child is or isn’t feeling well, and if the child has or doesn’t have any schoolwork or permission slips that should be reviewed.

Even if the other parent doesn’t buy into the idea of the parenting time notebook, keep it up. It’s a good record of how things are progressing for your time with your child, and the other parent may eventually see the merit of keeping it.

*Don’t laugh — it happens. I was pretty surprised the first time a client called about it, though.

New Case Law: Custody and Adolescent Angst October 24, 2007

Posted by shelleycm in Child Custody, Legal Developments, Modification.
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On October 17, 2007, the Oregon Court of Appeals decided an interesting child custody modification issue in Connelly and Connelly, ____ Or App ____ (2007). When a custodial parent faces adolescent behavior problems, can he or she lose custody of the children in favor of the non-custodial parent?

In initial child custody determinations and subsequent modifications, a court will look at the “best interest of the child” standard. Often a professional child custody evaluator will be hired to assess the situation and to make recommendations to the court.

In the Connelly case, Mother and Father married in 1989, had two children, S and T, and then divorced in 1995. Mother had been the primary caregiver for the children, and she received custody of S and T. Father had typical parenting time: weekends, holidays, summer vacations.

Ten years after the divorce, Father went back to the court to ask for custody of both children, arguing that because Mother left the children unsupervised, they had become “violent and disruptive” and were doing poorly in school.

The court ordered a custody evaluation. After her interviews with the family, the evaluator determined custody should remain with Mother, although both parents were inappropriate with each other as regarded the children. Both children preferred to live with Mother, and if they moved to Father’s, they would have to change schools and friends.

However, the court transferred custody to Father, finding that there had been a substantial change in circumstances and that a change would be in the children’s best interests. The court told father that he hadn’t “had a chance yet, and something dramatically different has to happen here.”

Mother appealed, arguing that any substantial change in circumstances must relate to “the capability of one or both parents to care for the child.” State ex rel Johnson v. Bail, 325 Or 392, 398, 938 P2d 209 (1997).

The Court of Appeals agreed, saying that the record did not indicate that Mother’s “lifestyle or circumstances” had significantly changed. The Court rejected the contention that because Mother did not communicate well with Father, that this was a substantial change sufficient to modify custody, because both Father and Mother had communications issues, with the bulk of the problems tracing back to Father. (However, in the past, the Court has found that poor communication by the custodial parent may be sufficient.)

The Court also wrote that although the children had been experiencing social and psychological problems while living with Mother, it is “not the child’s conduct – but instead the custodial parent’s effort – that determines whether the parent” has inadequately cared for the child.

New Resource for Divorcing Women October 15, 2007

Posted by shelleycm in Child Custody, Child Support, Dissolution.
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Check out the Modern Woman’s Divorce Guide for wonderful interviews with attorneys, articles, and resources!

News: Britney loses temporary custody of children October 3, 2007

Posted by shelleycm in Child Custody, News.
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We here at the Oregon Divorce Blog confess that we occasionally — OK, sometimes — follow the antics of celebrity disaster Britney Spears. It was our luck today, though, that Britney’s woes provided a window into the world of child custody.

Britney was in court in California today, along with her ex, Kevin Federline, at a hearing regarding custody of her two sons. On Monday, the judge in the case ordered Britney to turn over the boys to Kevin, after Britney didn’t appear for a drug and alcohol test. CNN noted that both Britney and Kevin will have to complete parenting classes, as well.

Oregon courts operate much the same way. If there is an action pending before the court (either because a petition for dissolution or custody has been filed, or because a dissolution or custody determination has already been granted), one party may apply for temporary emergency custody when a child is in danger. ORS 107.097(3) provides that:

(3)(a) 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.

(b) The party requesting an order under this subsection shall provide the court with telephone numbers where the party can be reached at any time during the day and a contact address.

(c) A copy of the order and the supporting affidavit must be served on the other party in the manner of service of a summons under ORCP 7. The order must include the following statement:

____________________________________________________________________________ Notice: You may request a hearing on this order as long as it remains in effect by filing with the court a hearing request in the form described in ORS 107.097 (5).

ORS 107.097(3).

If the other party requests a hearing, the court must make every effort to grant the hearing within 14 days (and no later than 21 days). Id.

In Oregon, the parties to a custody dispute (whether or not the parents are married) are also, like Kevin and Britney, required to take a parenting class. Here, the parties must either complete the classes before a judgment is entered in the case, or the court must specifically waive the requirement. Each county mandates its own program, although parents may ask the court to allow them to take online classes if they have special circumstances that would make attending local classes difficult.

Common Divorce Myth: Courts Always Keep Kids Together May 30, 2007

Posted by shelleycm in Child Custody, Dissolution, Legal Developments, Myths.
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There is a fair amount of truth to this myth, actually. Placement of children in a dissolution action (and in any custody proceeding) is based on the “best interest of the child,” and often keeping siblings together does serve the best interests of children. McBrayer v. Randolph, 191 Or App 553, 559-62, 83 P3d 936 (2004). (We’ve discussed the “best interest of the child” standard previously in a post on this blog.)

But keeping children together is only one factor to consider.  Recently, the Oregon Court of Appeals heard a case originally from Washington County, where it determined it wasn’t in the child’s best interest to be placed with his sibling. In Morales and Morales, 213 Or App ___ (2007), a child, E, was subjected to negative comments and attitudes about his father by his mother and sibling and was criticized for wanting to live with his father. Id. When living with his father, E made healthy choices and lost weight (he had been an overweight child to begin with) and father encouraged him to exercise. Id. E missed school when he lived with his mother, but his father was in frequent contact with E’s teachers at school. Id.

The Court determined E was better off with his father, because the siblings weren’t close, E expressed a preference for living with his father, and because the Court did not find the mother’s testimony to be credible and because the Court had misgivings about the mother’s tendency to involve the older child in her disputes with the father. Despite the fact his father in the case had physically assaulted the older child of the relationship at one time in the past, the Court found the father was appropriately remorseful, had taken steps that this would not happen again, and found E would be better placed with his father than his mother. Id.

The moral of Morales appears to be that an appropriate child custody placement involves far more than a simple “keep the kids together” determination, and that a parent’s concern, caretaking, and involvement in a child’s life can overcome powerful arguments — including past domestic violence — to give custody to the other, less involved parent.