As an Oregon divorce and family law lawyer, I talk to a lot of parents who want an immediate change of custody or an immediate suspension of parenting time. It can be extremely frustrating for them to learn that it can take weeks or months to get into court on a custody or parenting time issue even though the problem with the child is happening now. This feeling is compounded when the client believes the child is in danger in the other parent’s care.
We can help you obtain an emergency custody order. Call the Law Offices of Paul F. Sherman at (503) 223-8441 or Contact Us for a free consultation.
Under Oregon law, it is possible to obtain a temporary emergency custody order under the “Immediate Danger” statutes. Oregon has two emergency custody statutes. The difference is the timing of the request, the first statute applies to situations occurring before a final judgment is entered in the case, and the second statute is used after a final judgment has been entered in the divorce and custody case.
ORS 107.097(3) provides that:
(a) A court may enter ex parte a temporary order providing for the custody of, or parenting with the child if:
(A) The party requesting an order is present in court and presents an affidavit alleging 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.
Emergency custody orders are useful in cases involving severe drug and alcohol problems, in cases of sexual abuse, in cases where the custodial parent is incarcerated or where the other party is suffering from severe emotional or mental issues resulting in hospitalization or a complete breakdown. Courts will generally protect children in each of these situations.
Once a general judgment of divorce or final custody determination has been made, a motion for temporary emergency custody must be made under ORS 107.139, the post-judgment emergency custody statute.
ORS 107.139 provides in pertinent part:
Following entry of Judgment, a court may enter an ex parte temporary order providing for the custody of or parenting
(1)(a) Following entry of a judgment, a court may enter ex parte 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.
(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.
Thus, a post-judgment custody order requires a much higher standard of proof and good-faith attempt to provide notice to the other party. The clear and convincing evidence requirement is the highest civil standard of proof.
WHAT IS IMMEDIATE DANGER?
There is considerable variation among the courts and judges as to what constitutes immediate danger. There is virtually no case law on this issue and each determination of immediate danger is generally made on a case-by-case basis. The determination of immediate danger is fact driven and requires the expertise of a skilled divorce and family law attorney. Generally clients who attempt to obtain emergency custody orders on their own are unsuccessful. The reason for this failure is their inability to understand the rules of evidence and the standard of proof required to prevail in these cases. In addition to the foregoing, an understanding of the judges and courts in the area is essential to success in this area. There are substantial differences in opinion between judges in the same county as to what constitutes an immediate danger. The manner in which the motion is presented to the court and the evidence and supporting documentation provided to the court are critical to a successful emergency custody motion.
If you believe your child is in “immediate danger” in the other party’s care or custody, you should immediately consult an experienced family law attorney about obtaining emergency relief. It is essential that such a motion be presented properly from the onset so as not to taint the court as to your case, and ruining your chances of obtaining custody of your child.
The evidentiary requirements and the standard of proof for protective orders are technical and require the advice of a skilled custody and parenting time attorney. The cases are fact driven. The improper use of protective orders can have adverse consequences on the final orders entered in the case and can result in the award of substantial attorney fees when used improperly.
PAUL F. SHERMAN IS A SKILLED AND EXPERIENCED EMERGENCY CUSTODY AND PARENTING TIME ATTORNEY
Whether you need to establish temporary custody or preserve the status quo pending resolution of your case, or if you need assistance in following the correct procedures to obtain emergency custody or visitation for your child, you need the advice of an experienced child custody attorney. We recognize the impact any custody determination can have on the most import thing to you and your family, custody and quality parenting time with your child. The Law Offices of Paul F. Sherman has the experience necessary to address your concerns and to protect your rights.
CONTACT PAUL F. SHERMAN FOR EXPERT ADVISE ON EMERGENCY CUSTODY AND PARENTING TIME ORDERS
We know you have more questions and we have the answers. If you would like to learn more about divorce, child custody or any family law matter, call the Law Offices of Paul F. Sherman at (503) 223-8441 for legal advice, or Contact Us for a free consultation.