What action can I take if I am concerned about my child’s safety while in the other parent’s care?

There are only a few circumstances that allow a judge to award temporary custody to a parent without a hearing or the other party present in court.  One of those circumstances is when a safety concern arises that causes the child to be in danger while in the other parent’s care.  ORS 107.097 is the Oregon law that allows a party to file a motion asking for temporary custody if the court finds that the child is in immediate danger.  Some common reasons for obtaining an emergency custody order are a parent’s abuse of drugs or alcohol, physical abuse of a child or a parent and driving with the child while under the influence of drugs or alcohol.  

What are the steps for filing a Motion for Emergency Custody?

To file a Motion for Emergency Custody, a Petition for Dissolution of Marriage (or Separation) or, for unmarried parents, a Petition to Establish Custody, must also be filed. The Petition can be filed contemporaneously with the Motion for Emergency Custody.  The parent requesting the order must be present in court and present an affidavit alleging that the child is in immediate danger.  The affidavit should include sufficient details supporting the claim that the child is in danger.  If a judge finds that, based on the parent’s testimony and affidavit, the child is in immediate danger, the judge can enter a temporary order for custody.  The judge can also enter a temporary order for parenting time.  Often, the parent who obtained the emergency custody order will ask the judge to order that the other parent have supervised contact with the child or no contact at all.   

Do I need to give notice to the other parent prior to filing the Motion for Emergency Custody?

Oregon law requires that a parent make a good faith effort to give the other parent notice prior to filing a Motion for Emergency Custody.

What can I do if the other parent obtains an emergency custody order?

If the other party obtains an emergency custody order, you can file a request for hearing on the order at any time while the order is in effect.  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.  The court must make reasonable efforts to schedule a hearing within 14 days after receipt of the request for hearing and no later than 21 days after receipt of the request for hearing.  The custody order remains in effect through the date of the hearing.  If the party against whom the order was entered fails to appear at the hearing without good cause, the court shall continue the order in effect. If the party who obtained the order fails to appear at the hearing without good cause, the court shall vacate the order.  The hearing on an emergency custody order is limited to whether the child was in immediate danger at the time the order was issued.  At that hearing, you can present evidence to the court, such as your testimony, as well as the testimony of any witnesses, to support your position.

How long does the temporary emergency custody order last?

If a hearing is requested, the order remains in effect until the hearing.  At the conclusion of the hearing, the judge will decide whether the order should be vacated.  If the judge determines that the order should continue, then the order will continue until the conclusion of your pending family matter.  The order may also be vacated by agreement of the parents.  

If my spouse and I are already divorced, can I file for temporary emergency custody or suspension of parenting time?

To file a Motion for Emergency Custody after you are divorced or there is an existing custody judgment, a Motion to Modify the Custody and/or Parenting Time Judgment must also be filed. The Motion to Modify can be filed contemporaneously with the Motion for Emergency Custody.