Practice Areas

Choose a Practice Area... APPEALS CONTEMPT/ENFORCEMENT THIRD PARTY CUSTODY CUSTODY AND PARENTING TIME DIVORCE DOMESTIC PARTNERSHIPS DOMESTIC VIOLENCE AND ABUSE ISSUES FAMILY LAW GRANDPARENT RIGHTS LEGAL SEPARATION MODIFICATION OF CUSTODY/PARENTING TIME PATERNITY POSTNUPTIAL AGREEMENTS PREMARITAL/PRENUPTIAL AGREEMENTS

APPEALS

Either party may file an appeal from a trial court's judgment. Judgments which have been agreed to, known as stipulated judgments, may not be appealed. In order to initiate an appeal, a party must file a document called a “Notice of Appeal” within 30 days after the judgment is entered in the court record. On appeal, the court does not consider any new evidence, and decides the case upon the facts established at trial. A number of cases on appeal are referred to the mandatory appellate mediation program and many are settled without the full expense of the appeal process. Otherwise, the normal process includes obtaining transcripts of the trial proceedings, writing lengthy appellate briefs and conducting oral arguments. Each step of the appeal process can take at least a couple of months, and it is common for an appeal not to be resolved even 12-18 months after the Notice of Appeal has been filed.

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CONTEMPT/ENFORCEMENT

One of the primary means of enforcing a person’s obligation under a judgment is to seek to hold that person in contempt if he or she willfully fails to comply with the terms of a judgment or court order. In order to hold the person in contempt, the court must find that there was a valid court order; that the person was aware of the order, and that the person refused to comply with the order, despite having an ability to do so. When a person is held in contempt, there are a number of remedies available to the party seeking to enforce the judgment. Parties can retain attorneys or proceed with their own contempt actions for “remedial” sanctions, such as the payment of fines and attorney fees, and even requiring limited jail time. However, if “punitive” sanctions are sought, which are designed to punish a disobedience which can no longer be remedied, they cannot be brought by a private party, and are ordinarily filed by the district attorney or some other prosecutorial agency.

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THIRD PARTY CUSTODY

In the past decade there have been increasing numbers of cases brought by persons other than biological or adoptive parents seeking custody and visitation rights of minor children. These cases have met substantial resistance from parents and have even been addressed by the United States Supreme Court. Generally, it is presumed that the legal parent is acting in the child’s best interests. In order for a third party to obtain custody or visitation over the objections of the biological or adoptive parent, the person seeking these rights must first prove that they have served a substantial role in the child’s life, and that the legal parent is not acting in the child’s best interests. The court may then grant custody or visitation rights to the third party if it is deemed to be in "the best interests of the child." These cases are difficult to prove, given the presumption in favor of the legal parents.

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CUSTODY AND PARENTING TIME

The paramount concern for the courts in awarding custody and parenting time is to make certain that the resulting arrangement is in the child’s best interests.

In Oregon, the courts can award joint legal custody only if the parties agree. If either party objects to joint legal custody, the court must award custody to one parent or the other. This is said to be “sole” legal custody.

Custodial arrangements can be best understood if one considers the distinction between legal custody and physical custody. Having legal custody authorizes a parent to make major decisions for the child’s primary needs, such as healthcare, education and religious upbringing. Physical custody designates the home of one or both parent(s) as the child’s primary residence.

Some families have “split” custody arrangements, wherein one or more child(ren) reside separately with each parent.

In Oregon, visitation is referred to as “parenting time.” Parenting time refers to the specific times and schedule when the child(ren) will spend time with each parent.

It is common for parents to have joint legal custody by agreement, but still have one parent designated as having primary physical custody. It is possible to have sole legal custody to one parent, with nearly equal parenting time with both parents.

The Oregon Judicial Department has published suggested reading lists, considerations for developing parenting plans, and model parenting plans on their web-site, at www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/parentingplan.htm

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DIVORCE

Divorce is legally referred to as a dissolution of marriage, and is a proceeding by which a valid marriage is terminated. In Oregon, a dissolution of marriage is granted by the court without regard to either spouse being at fault. To file for a dissolution of marriage in Oregon, at least one of the parties must have been a resident of the state for more than six months prior to filing.

Generally, a divorce may address five primary issues:

1. Child custody and parenting time;
2. Child support;
3. Spousal support;
4. Division of assets and liabilities; and
5. Attorney fees and costs

Each of the primary issues can be further divided into subcategories, such as the types of spousal support, origination of assets and liabilities, and so forth. Expert family law counsel is needed to effectively confront and resolve the complex issues involved in a divorce.

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DOMESTIC PARTNERSHIPS

Two unmarried people who live together may create a legal domestic partnership in which property rights may be recognized by the court. This arrangement can apply to both heterosexual and same sex couples. In dissolving a domestic partnership, the courts will consider some of the same issues that are considered in a divorce. However, spousal support and attorney fees are remedies not allowed in a dissolution of domestic partnership unless the parties had entered into a written domestic partnership agreement which provides for support and/or attorney fees in a domsestic partnership dissolution proceeding . Similarly to a divorce, in order to grant a dissolution of domestic partnership . the court must be satisfied that a domestic partnership exists, which will be determined primarily by the express or implied joint intent of the parties. Frequently, this intent to have formed a domestic partnership is found in the parties jointly purchasing major assets, incurring joint debt, and otherwise commingling financial affairs.

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DOMESTIC VIOLENCE AND ABUSE ISSUES

Oregon has adopted the Family Abuse Prevention Act (FAPA) to protect its residents from domestic violence by persons in intimate relationships, including married persons, domestic partners, and children. Each county courthouse has forms to petition for restraining orders under FAPA, and also has domestic violence advocates available to assist, so that abused parties may obtain a FAPA restraining order on their own. Once a restraining order is granted and the served, the individual served with the order has 30 days within which to object to the order and seek a hearing to contest the allegations made by the opposing party. When custody is at issue, the hearing must take place within 5 judicial days after the request for hearing is filed. When custody is not at issue, the hearing must take place within 21 days after the request for hearing is filed. In order to obtain a restraining order or prevail against objections, the person obtaining the FAPA restraining order must prove that alleged abuse happened within the preceding 180 days and that the accused caused bodily injury, attempted to cause bodily injury, placed the victim in fear of imminent bodily injury, or forced the victim to engage in involuntary sexual relations. It is wise to obtain counsel whenever a FAPA order is contested. When there are grounds for a restraining order, there are frequently grounds for criminal charges or police involvement.

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FAMILY LAW

Family law is a multi-faceted area of law that deals with all legal aspects of family relations. Family law encompasses such areas as: adoption, child custody and visitation, children's rights, child support, spousal support (alimony), separation agreements, divorce (dissolution of marriage), marital property division (equitable division), elder law matters, cohabitation agreements, pre-marital (pre-nuptial) agreements, marriage and other legal issues pertinent to the family.

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GRANDPARENT RIGHTS

In the past decade there have been increasing numbers of cases brought by persons other than biological or adoptive parents seeking custody and visitation rights of minor children. These cases have met substantial resistance from parents and have even been addressed by the United States Supreme Court. Generally, it is presumed that the legal parent is acting in the child’s best interests. In order for a third party to obtain custody or visitation over the objections of the biological or adoptive parent, the person seeking these rights must first prove that they have served a substantial role in the child’s life, and that the legal parent is not acting in the child’s best interests. These cases are extraordinarily difficult to prove, given the presumption in favor of the legal parents.

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LEGAL SEPARATION

Sometimes parties are uncertain whether to proceed with a divorce, but desire to physically and legally disentangle themselves. A legal separation may be an appropriate alternative to divorce primarily either due to religious reasons or to potentially continue health care coverage. Certainly, there may be other valid reasons. A judgment of legal separation allows the parties to address all the same issues they would address in a divorce, except for changing marital status. If the parties ultimately reconcile, they can elect to set aside a judgment of legal separation. If, instead, they choose to divorce, they can convert the judgment of legal separation into dissolution of marriage, relatively easily, within two years from the date of the legal separation judgment.

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MODIFICATION OF CUSTODY/PARENTING TIME

Custody can be modified upon establishing a "substantial change in circumstances", which has caused diminishment in the custodial parent's ability to effectively parent the child or children. In addition, the party seeking modification of custody must show that the modification would be in the child's best interests. However, in order to modify parenting time provisions, no "substantial change in circumstances" is necessary, as the overriding consideration is whether the change in schedule will be beneficial to the child(ren). As in modification of support, parties seeking modification of custody or parenting time must file a motion with the court, together with an affidavit outlining the grounds for modification, and the court will issue an order to show cause directing the other party to explain why there should be no modification.

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PATERNITY

There are times that unmarried parents are uncertain about the paternity of a child. A paternity (filiation) proceeding can be commenced in order to determine paternity and resolve parenting issues. If there is a dispute, paternity can be established by DNA testing. Once paternity is established, the court may award custody, parenting time, and child support. In a filiation proceeding, the court may also award retroactive child support and financial contribution for pre-natal and birthing costs.

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POSTNUPTIAL AGREEMENTS

Postnuptial agreements are agreements parties may enter into after they marry in regard to how their assets and debts or incomes and living expenses are to be treated during their marriage and what is to happen should the parties later divorce. The enforceability of these types of agreements in Oregon is, not entirely certain, as this involves an emerging area of case law, and is not governed or authorized by statute.

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PREMARITAL/PRENUPTIAL AGREEMENTS

Unlike postnuptial agreements, premarital agreements are governed or authorized by Oregon statute and are readily enforceable if properly prepared and executed. A premarital agreement may serve as a financial blueprint for how marrying parties will conduct themselves and treat their assets, debts, incomes and living expenses during the course of their marriage. The agreement may provide for estate planning. A premarital agreement will further set forth how the parties' assets and liabilities will be distributed upon any future divorce. It may also set forth whether spousal support will either be waived or how it will be determined in any future divorce. Provisions is such agreements which attempt to decide issues of legal custody, parenting time and child support are not enforceable or binding on the courts.

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