Emergency Child Custody Orders in Oregon
Temporary orders based on immediate danger to a child or children are available in Oregon under some limited circumstances. These orders are different than status quo orders (Temporary Protective Order of Restraint) or standard temporary child custody orders.
Immediate Danger and Emergency Child Custody Law
Oregon’s immediate danger statute is codified as ORS 107.097(3). In relevant part, it reads:
(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 request for a hearing. In the request you must tell the court and the other party that you object to the order on the ground that the child was not in immediate danger at the time the order was issued. In the request you must also inform the court of your telephone number or contact number and your current residence, mailing or contact address.”
Immediate Danger Examples or Definition
Oregon’s emergency temporary custody statute does not contain a definition for the phrase “immediate danger.” There is also little to no case law that provides guidance as to how immediate danger is defined or determined. Judges make a determination on a case-by-case basis.
Examples of immediate danger or imminent danger may include, but not be limited to:
- Physical abuse of a child
- Sexual abuse of a child
- Medical neglect of a child
- Drug or alcohol abuse in the presence of a child
- Exposure to threat of harm to the child
Unfortunately, many parents attempt to use these orders in situations where there is no actual evidence of immediate danger. Allegations that the other parent drinks too much or has used marijuana, has been arrested or engaged in criminal behavior in the past, is ill or has a medical issue, has less-than-deal housing, allows the children to watch too much television, allows the children to play violent video games, or is merely a less-than-ideal parent is not immediate danger.
Some parents think that volume will overcome a lack of intensity. In other words, some parents think that– even though there isn’t necessarily evidence of immediate danger– that ten pages of information filed with the court evidencing that the other parent is really lousy will do the trick. It won’t. This immediate danger statute is designed truly for immediate dangers only. The court requires solid evidence that there is an immediate and genuine risk of harm to the child.
How to File for Emergency Child Custody Based on Immediate Danger
If you have evidence and you believe your child is in “immediate danger” by being left in the other party’s physical care or custody, you should immediately consult an experienced family law attorney to inquire about obtaining emergency relief. It is essential that you draft and file the motion and supporting affidavit correctly. If you don’t, the Court may reject your motion on procedural grounds (e.g. a failure to follow the technical or legal court rules) or deny it on substantive grounds (e.g. a lack of supporting evidence). Any delay in obtaining relief could put your children at risk. In addition, if you file a motion for immediate custody and it’s denied, it may later harm your chances of obtaining legal custody of the children in the divorce or final custody determination. Lastly, if you file a motion that a judge finds to be improper, you could be ordered to pay substantial attorney’s fees to the opposing party.
The bottom line: There may be a time and a place in a divorce case to do your own research, fill out your own forms, and file them with the Court on your own, in an effort to save money. This likely isn’t one of them. If you believe your child is in immediate danger, contact an experienced child custody lawyer.
Immediate Danger Emergency Child Custody Forms for Oregon
If you chose to proceed without a lawyer, fill-in-the-blank forms for both temporary custody based on status quo and immediate danger are available here. These forms are specifically designed to be filled out by parents who do not want or cannot afford legal advice or direction from an attorney, and there are instructions available. Note that there are separate forms for pre-judgment immediate danger vs. post-judgment immediate danger.
What Will Happen After I File for Emergency Custody?
If the Court agrees that there is an immediate danger to the child, the court will issue an order that’s effective immediately. However, judges are reluctant to issue these orders without giving the other party a chance to be heard. If the other parent requests a hearing, the Court will revisit the order and may modify it or terminate the order. It’s of critical importance that you have a custody attorney to assist you if a hearing is scheduled because the rules of evidence are complex, and so are the court rules that govern the order and presentation of evidence.
If you need assistance with an immediate danger and emergency child custody order, contact our office.