Can I move out with the kids? The “Temporary Protective Order of Restraint” and “Status Quo Order”
As family law lawyers based in Portland, Oregon, potential clients ask us about if they can move out of the family home with the children, or if they can prevent a move. We hear questions like the following:
- Can I move with the children out of the marital home?
- Can the other parent move out with the children without my consent?
- If we haven’t followed the parenting plan in our judgment, can I prevent the other parent from changing the agreed upon plan?
- Can I prevent a move that disrupts the children’s routine?
- Can I move and change the children’s routine?
This post was almost a “divorce myth” post for the sole reason there so much misinformation about moving away from the other parent with children. The answer is that you can move without the other parent’s permission, but Oregon provides two potential remedies to block a move out of the family home, or force a return of the children to the family home.
Prior to a final judgment, as part of a divorce, annulment, legal separation, or third party custody case, Oregon law allows a parent to obtain a temporary order called a “Temporary Protective Order of Restraint” The order is temporary because it is only in effect during a case. The statue, ORS 107.097, allows you to obtain a court order that prevents the other party from:
- Changing the child’s usual place of residence;
- Interfering with the present placement and daily schedule of the child;
- Hiding or secreting the child from the other party;
- Interfering with the other party’s usual contact and parenting time with the child;
- Leaving the state with the child without the written permission of the other party or the permission of the court; or
- In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.
With a few exceptions, if the other parent moves out of the house without your permission, you can use ORS 107.097 to force the children’s return to the home, and force a return to your pre-move level of contact with the kids.
During a modification of custody or parenting time (after entry of a final judgment), the court allows for entry of a “Status Quo Order” that is very similar to the “Temporary Protective Order of Restraint.” ORS 107.138 allows you to obtain a “Status Quo Order” in a custody modification action that prevents the other parent from:
- Changing the child’s usual place of residence;
- Interfering with the present placement and daily schedule of the child;
- Hiding or secreting the child from the other party;
- Interfering with the other party’s usual contact and parenting time with the child;
- Leaving the state with the child without the written permission of the other party or the permission of the court; or
- In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.
To obtain a status quo order, you must:
- Notify the other party;
- Give the other party an opportunity to contest issuance of the order;
- File an affidavit that sets forth with specificity the information required by ORS 109.767 and the person with whom the child has lived during the preceding year and the child’s current schedule, daily routine and usual place of residence.
- Give the other party 21 days notice before the date set for the hearing.
For both a “”Temporary Protective Order of Restraint” and a “Status Quo Order,” a “Child’s usual place of residence” means the place where the child is living at the time the motion for the temporary order is filed and has lived continuously for a period of three consecutive months, excluding any periods of time during which the noncustodial parent did exercise, or would otherwise have exercised, parenting time. A“Parent’s usual contact and parenting time,” “present placement and daily schedule of the child” and “current schedule and daily routine of the child” mean the contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed.
If you are thinking of moving out of the family home with the children without consent, or the other parent moves out of the family home without your consent, you should consult with a family law lawyer to discuss the legal effect of the move in light of ORS 107.097 and ORS 107.138. The lawyers at Stephens & Margolin can help you with how these laws apply to your particular situation.
