The immediate danger statutes – emergency custody and parenting time
As Oregon divorce and family law lawyers, we talk to a lot of parents who want an immediate change of custody or immediate suspension of parenting time. It can be frustrating to learn that it generally takes weeks or months to get into court on a parenting time issue or custody issue, when a problem with the child is happening now. The feeling can be intolerable if you believe your child is in danger in the other parent’s care. Oregon has two emergency custody statutes, one before a judgment is entered, and one for after a judgment is entered. ORS 107.097 provides that a court, pre judgment, may enter ex parte a temporary order providing for the custody of or parenting with a child if:
- The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
- 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.
- The party requesting an order under this subsection provides the court with telephone numbers where the party can be reached at any time during the day and a contact address.
Once a general judgment of divorce or a custody judgment as been entered, you have to proceed under ORS 107.139, the post judgment emergency custody statute. Following entry of a judgment, a court may enter ex parte a temporary order providing for the custody of or parenting with a chid if:
- A parent of the child is present in court and presents an affidavit alleging that the child is in immediate danger;
- The parent has made a good faith effort to confer with the other party regarding the purpose and time of this court appearance; and
- The court finds by clear and convincing evidence, based on the facts presented in the parents testimony and affidavit and in the testimony of the other
party, if the other party is present, that the child is in immediate danger. - The party requesting an order under this subsection provides the court with telephone numbers where the party can be reached at any time during the day and a contact address.
Notice to the other parent is required for post judgment emergency custody orders, but not for pre-judgment orders. Post judgment, you have to at the same time file to modify the existing judgment. The burden of proof is higher post judgment than pre-judgment.
So what is an “immediate danger?” The statute doesn’t define it. There are differences of oppinion between judges in the same county on what constitutes an immediate danger. How a motion is presented to the court and what support and documentation you give the court to support your emergency custody motion are critical to success. If you believe your child is in an “immediate danger” in the other parent’s care or custody, you should immediately talk to an experienced family law attorney about emergency relief.
