January 10, 2009

Divorce Myth: The Police Will Enforce My Parenting Plan

police capOne “Divorce Myth” we come across is the belief that the police or sheriff will help with parenting time and custody disputes.  We hear stories of parents who call the police if the other parent was late returning a child, only to be told that it is a “civil matter” and that they should call a lawyer.  Some manage to convince an officer to do a “civil standby” where the officer is present, but the officer cannot forcibly retrieve the child without special permission from the court.  The myth is that law enforcement will help enforce your parenting plan immediately.  The reality is that no immediate remedy exists for parenting time violations, and law enforcement can only assist to return a child to the custodial parent with special permission from the court.

For the non-custodial parent, law enforcement won’t help.  The non-custodial parent can file a motion and set a hearing for remedial contempt or for enforcement of parenting time, but weeks may pass before the court actually hears the matter.

Custodial parents can get law enforcement to retrieve a child, but they need a special order from the court called an “Order of Assistance.”  ORS 107.437 allows a person entitled to custody parent to appear ex parte in a county:

  1. In which a child is located if the person is entitled to the physical custody of the child under a valid and current order issued in this state; or
  2. In which a valid and current foreign custody order has been filed with a petition.

A certified copy of the court order must be presented with the motion or petition. If the court finds that the applicant is entitled to physical custody under a valid and current order, and that the child is being withheld in substantial violation of the order the court may issue an order directing local law enforcement to use any reasonable means and force to deliver the child as directed by the court, including directing forcible entry into specified premises.

The Order of Assistance is a heavy handed remedy, and should not be used lightly, considering the impact on a child of being forcibly retrieved by police.  However, it will get you the help of law enforcement in retrieving a child.