Family Law, also known as domestic relations law, focuses on issues involving family relationships such as divorce, child custody, parenting time, child support, spousal support, paternity, adoptions. It can include:
- Restraining Orders (FAPA), Stalking Protective Orders (SPO)
- Divorce (also known as Dissolution of Marriage)
- Child Custody and Parenting Time
- Child Support
- Spousal Support
- Domestic Partnerships
Restraining Orders, Stalking Protective Orders
Sadly, many Divorce cases begin with one party (the Petitioner), obtaining a Family Abuse Prevention Act (FAPA) restraining order, or a Stalking Protective Order (SPO).
It is possible for a party to obtain an initial restraining order (either FAPA or SPO) by completing the petition and then appearing before the Judge to review the petition. If the Judge determines the initial requirements have been met, then the other side (the Respondent) is personally served by a law enforcement official and the provisions of the Order become effective.
Along with a copy of the Petition, and Order, the Respondent also receives a form entitled Request for Hearing. By completing this form and filing it with the Court, the Respondent will receive a hearing date at which time he or she can contest the issuance of the restraining order.
Since the initial restraining order can address topics including: all contact with the Petitioner; coming within a designated number of feet of the Petitioner’s residence or place of employment or school; or interfering with children in the Petitioner’s care; or entering, remaining at, or removing the children from their school or daycare provider; or use of the family home; or temporary custody of the child(ren); or parenting time with the child(ren); firearms possession or purchase; or even emergency monetary assistance, it can be important for the Respondent to promptly request a hearing so that the Judge is able to hear the other party’s side of things as well.
The request for a hearing must be made within 30 days of being served with the petition and order.
It is also important to know and understand that there may a requirement for the Respondent to complete a Declaration of Firearms Surrender.
With regard to a Stalking Protective Order, the Respondent is court-ordered to appear at a subsequent hearing. There is no need to request a hearing as it will be scheduled approximately four weeks after the temporary stalking protective order is issued by the Court.
Stalking Protective Orders are generally more difficult to obtain than a FAPA restraining order. If upheld at the subsequent SPO hearing, the order becomes a Final Stalking Protective Order and is valid for an unlimited duration.
A FAPA restraining order, if upheld at the subsequent hearing, is normally in force for a year from the date it was initially issued. If necessary, a petition to renew the FAPA can be filed before the original FAPA expires. However, the Respondent would need to be personally served again, and he or she would again have the right to request a hearing and contest the issuance of a renewal order.
During my time as the Hearings Referee / Circuit Court Judge Pro Tem for Jackson County Circuit Court, I dealt with hundreds of FAPAs, and SPOs. Needless to say, I believe I have a very good understanding of the law involved in these matters.
Transitioning through a life-changing experience like divorce can be very challenging. All sorts of legal issues can arise, some of the more common ones include: child custody, parenting time, child support, spousal support, and division of assets and liabilities.
I have a tremendous amount of experience in each and every one of these areas. In addition to having represented clients for more than 25 years, I have also worked as the Hearings Referee and as a Circuit Court Judge Pro Tem for the Jackson County Circuit Court for 18 months. So, I not only know what it’s like to present these issues to the Judge, I also understand what it’s like to decide them.
Child Custody and Parenting Time
If the parties both agree to share Joint Legal Custody of the child or children, then the Court can order Joint Legal Custody. Unless the parties agree, the Court is powerless to order joint custody. Some Judges have said that in order to effectively share joint legal custody of a child, the parties must have two qualities: Trust and Good Communication. It may be that initially, because these two qualities are lacking, the parties will be unable to agree and the Court will be prohibited from entering an order of joint legal custody.
Contrary to popular belief, joint custody does not mean that the child spends equal time with each parent. The Parenting Time plan is a distinctly different issue. Joint custody only refers to the equal sharing of responsibility for major decisions on behalf of the child.
Legal custody is the power to make decisions regarding the child’s education, medical needs, and religious upbringing. If there is no agreement to share Joint Legal Custody, then the Judge will be required to choose one party to be awarded Sole Legal Custody.
When determining custody, the courts primary consideration is the best interests and welfare of the child. All other considerations are secondary. In determining the best interests and welfare of the child, the court shall consider the following relevant factors, found in ORS 107.137:
- The emotional ties between the child and other family members;
- The interest of the parties in and attitude toward the child;
- The desirability of continuing an existing relationship;
- The abuse of one parent by the other;
- The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
If a party is awarded Sole Legal Custody, then the other party receives a schedule of Parenting Time. This is the actual time you spend with your child, and normally includes extended weekends, time at holidays, and time during school vacation periods.
Under Oregon law, both parents almost always have the right to access the child’s school, medical, dental, police and counseling records. Both parents can also typically authorize emergency medical care. In addition, most parenting plans will restrict a party from moving more than 60 miles from the other parent without first telling the other parent and the court 30 to 60 days before moving, in order to give the other parent an opportunity to contest the relocation or to have the court revise a prior custody determination and/or revise the parenting plan in the best interests of the child.
A court order for custody may be changed later if it can be shown that there has been a substantial change of circumstances since the prior order, and that a different custodial parent would be in the best interests and welfare of the child.
Generally speaking, child support in Oregon is determined through the use of the Child Support Guidelines and Calculator. The guidelines are the basis for establishing just and appropriate child support obligations for Oregon’s families and children. Here’s the link for the website: Child Support Calculator Information »
The calculator is pretty intuitive and easy to use, but it can be confusing at times. I can help you to understand what information is required in order to get the most accurate calculation.
Oregon does not have a spousal support calculator or a predetermined way to set spousal support. Instead, the court looks at a list of factors to determine whether support is appropriate, and if so, how much support is appropriate and for what duration the support should continue.
The three types of spousal support that may be ordered include: transitional (meant to be short-term and designed to help a party return to the workforce or get additional education and training), compensatory (meant to compensate a party who contributed to the other’s earning capacity), and maintenance (meant to maintain a relatively comparable standing of living).
The court considers factors such as the age and health of the parties, the length of the marriage, the parties’ respective work histories and earning capacities, their caregiving and child rearing responsibilities, the parties’ living expenses, and any other factor the court thinks is important.
Contrary to what one may expect, spousal support generally does not automatically terminate upon remarriage of the spouse receiving the support. However, remarriage may cause grounds for modification or termination of the support. Either party can ask for a hearing to modify the amount or length of spousal support based on a substantial and unanticipated change in the financial circumstances.
The law relating to child and spousal support is very complex and has a substantial financial impact on the lives and resources of the parties involved. Legal representation to protect your rights is generally a very worthwhile investment.
It may be that an area of your case needs to be changed later. There are some issues in a family law case that that courts are permitted to change if there is a substantial change of circumstances.
For example, it may be possible to modify spousal or child support if there has been a substantial change in economic circumstances affecting either party. It may be that if a parent paying child support loses his or her job, through no fault of his or her own, or gets transferred to a location with a higher cost of living, or any number of other changed circumstances; these could be reasons for modifying the child support obligation. With regard to spousal support, as an example, if the party receiving spousal support were to remarry, or receive a promotion in her or his job, then this might be a reason to modify the spousal support obligation.
Oregon Courts sometimes deal with the relationships of unmarried couples, opposite sex and same sex. The laws pertaining to the dissolution of these types of relationships are different from those involving a marriage. The way the Court will address issues involving children of a domestic partnership is very much like that of a divorce case. However, in a Dissolution of Domestic Partnership, spousal support can not be ordered by the Court.