Many of our clients are in need of an immediate change of custody or an immediate suspension of parenting time. Under Oregon law, it is possible to obtain a temporary emergency custody order under the “Immediate Danger” statutes.
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.
YOUR CHILD MUST BE IN IMMEDIATE DANGER TO OBTAIN EMERGENCY CUSTODY
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 case. Your child must be in immediate danger to obtain emergency custody.
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.
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.
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?
Immediate danger means that there is a clear and present risk that a child will be physically injured or neglected in such a way as to endanger the child. The risk here generally involves physical danger and “immediate” generally means now.
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.
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 or Contact Us for a free consultation.